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Explainer: Nevada’s non-neutral church attendance policy upheld by federal judge

June 12, 2020

On Tuesday, a federal judge in Las Vegas refused to grant an injunction to void Nevada’s 50-person attendance cap on all religious gatherings. 

Two churches, Calvary Chapel Dayton Valley and Calvary Chapel Lone Mountain, asked the court for an injunction claiming that the state’s COVID-19 restrictions on religious gatherings were unconstitutional. They also claimed that religious organizations were being treated unfairly as opposed to other entities and businesses. 

Currently, Nevada has a 50-person attendance cap on all religious gatherings as part of COVID-19 restrictions, but casinos and other businesses have been allowed to reopen at 50% capacity.

In his denial of the injunction, Judge Richard Boulware II stated that there was not enough evidence to warrant the court’s involvement in this matter as the churches were unable to prove there is a pattern of intentionally enforcing restrictions in a way that singles out religious organizations.

Are these restrictions legitimate? 

Christians recognize that the COVID-19 pandemic presented unprecedented circumstances and that state governments have at certain times had a legitimate interest in restricting public gatherings. Moreover, Christians have an interest in complying with generally applicable restrictions and modifying our ‘normal’ worship practices in order to prevent those gatherings from unnecessarily spreading coronavirus and causing harm to both our members and our larger communities. 

These restrictions in Nevada, however, are not generally applicable to all gatherings as they blatantly hold religious organizations and commercial businesses to different standards. It makes little sense to have varying restrictions on large gatherings based solely on the activity that is taking place at those gatherings. If casinos — famous for many reasons, but not for social distancing — can safely adjust to operate with new precautions, so can houses of worship.

What about the First Amendment? 

This ruling clearly violates the Free Exercise clause of the First Amendment by treating religious organizations less favorably than secular organizations. This is more than disappointing. The federal judiciary has, once again, failed to intervene when states pass policies that are not neutral towards religious gatherings as opposed to non-religious gatherings.

Unfortunately, Judge Boulware is not the first judge unwilling to grant injunctions to churches seeking relief from state policies that overstep their authority and violate the First Amendment. Two weeks ago, the United States Supreme Court declined an application for injunctive relief that was submitted by churches in California and Illinois over issues very similar to those of the Nevada churches.

What kind of precedent is being set?

The First Amendment does not have an exception for pandemics. Christians should be concerned about these recent court decisions not only for the present times, but also looking forward. Decisions like those of Judge Boulware and the United States Supreme Court, are setting a precedent for deference to government regulation over religious liberty; and, once given over to the government, regulatory powers are difficult to walk back.

However, as many states have shown, it is possible to balance the bedrock principle of religious liberty and state governments’ interests in promoting public health and safety. Russell Moore, president of the Ethics and Religious Liberty Commission, offered these comments in response to the US Supreme Court’s decision to reject the challenge of California churches:

“States should set their policies according to the behaviors that can and cannot happen safely, the numbers of people that can be gathered, not on whether the assembly is a church or not a church, and they should apply those standards equally and neutrally. This pandemic is a perilous time. We need to emerge from it with both our public safety and our First Amendment intact. We can do that, but only if elected officials and the courts take seriously the matters both of public health and of constitutional freedoms.”

What happens next?

The ERLC and other organizations that exist to defend religious freedom will continue to push back against these misguided actions that unduly burden the free exercise of religion. Churches in Nevada and elsewhere have already demonstrated incredible deference to public officials for the sake of public safety. It is past time for these leaders to ensure that the religious freedom of citizens in their states are no longer impeded in an arbitrary or capricious manner. Surely churches merit the same protections as casinos in Nevada.

ERLC intern Julia Stamper contributed to this article.