In Calvary Chapel Dayton Valley v. Sisolak, published December 15, 2020, the 9th Circuit reversed a district court's order denying a church a preliminary injunction against the Governor of Nevada's emergency directive prohibiting gatherings of 50 or more people in any indoor or outdoor area, including houses of worship. The same directive allows retail businesses and various other businesses to cap attendance at 50% of their fire-code capacities.
The 9th Circuit held that the Supreme Court's decision in Roman Catholic Diocese of Brooklyn v. Cuomo--which "arguably represented a seismic shift in Free Exercise Law"--compelled the result in this case. The directive treats numerous secular activities and entities significantly better than religious worship services. It therefore creates a disparate treatment of religion, triggering strict scrutiny. The directive must be narrowly tailored to serve a compelling state interest. The directive is not narrowly tailored, because maximum capacity could be tied to the size of the house of worship, instead of imposing a fifty-person cap regardless of size. The church therefore demonstrated a likelihood of success on the merits and that enforcement of the directive would cause irreparable harm. The 9th Circuit preliminarily enjoined the state from imposing attendance limits on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity.
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