Ninth Circuit to Nevada: You can’t treat churches worse than casinos

Today, the U.S. Court of Appeals for the Ninth ruled that a church is entitled to preliminary relief against an order by Nevada’s governor that treats the church worse in terms of coronavirus restrictions than numerous secular entities such as casinos, bowling alleys, retail restaurants, and arcades. The decision, by a panel of the court, was unanimous.

The church, Calvary Chapel Dayton Valley, had been losing on this issue in court. In fact, the Supreme Court denied Calvary Chapel relief in a 5-4 decision during the summer. However, the Supreme Court’s November decision in Roman Catholic Diocese v. Cuomo turned the tide.

The panel stated:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. As a result, the restrictions in the Directive, although not identical to New York’s, require attendance limitations that create the same “disparate treatment” of religion.

Ed Whelan observes that the panel’s ruling virtually guarantees that Calvary Chapel and other houses of worship will benefit from any further relaxation of the limit on Nevada casinos. The point is important because I assume that Nevada’s desire to keep money flowing into its casinos outweighs its ambivalence (if not hostility) towards Christian churches.

Ed also notes that all three members of the Ninth Circuit panel — Milan D. Smith Jr. (who wrote the opinion), Danny J. Boggs (visiting from the Sixth Circuit), and Mark J. Bennett — were appointed by Republican presidents — George W. Bush, Ronald Reagan, and Donald Trump, respectively. Would some of the liberal judges on the Ninth Circuit have voted against the church, notwithstanding the Supreme Court’s decision in the New York case? I hope not, but who knows?

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