The good religious liberty news for churches in Nevada from the 9th Circuit

December 17, 2020

On Dec. 15, the U.S. Court of Appeals for the Ninth Circuit struck down Nevada Gov. Steve Sisolak’s pandemic restrictions that treated churches more harshly than other spaces, like casinos and restaurants. This is a significant win, as the ERLC argued for in our amicus brief in this case.

The case challenging Nevada’s non-neutral pandemic rules was brought by Calvary Chapel Dayton Valley, a church in rural Lyon County. Calvary Chapel is represented by the legal organization, and ERLC partner, Alliance Defending Freedom (ADF) that made the case that Gov. Sisolak’s rules were both unconstitutional and illogical for public health during a pandemic. 

“The 9th Circuit got this case right,” said Russell Moore, president of the ERLC, as news broke yesterday of the church’s victory for equal treatment. Moore’s comments continued:

“Government cannot single out and treat churches differently from other gatherings simply because they are houses of worship. That is out of step with the First Amendment and our long American history of free exercise. I once again urge Governor Sisolak to instead partner with churches, as is happening in communities all over the country, to combat this virus. This is a time when we need trust and cooperation from every sector of society. Churches are eager to serve their communities safely, and should be allowed to do so.”

David Cortman, ADF’s senior counsel and vice president of U.S. Litigation, called the 9th Circuit decision “a significant win” in Calvary Chapel’s litigation with the state of Nevada. Cortman’s comments in an ADF press release continued:

“There is no constitutional right to gamble, but there is one that protects attending worship services. The government has a duty to respect the First Amendment, so it can’t single out churches for harsher treatment than secular activities. Today, the 9th Circuit made clear that, at a minimum, Calvary Chapel Dayton Valley can’t be treated more harshly than Nevada’s casinos, bowling alleys, retail businesses, restaurants, and arcades. Such disparate treatment is both illogical and unconstitutional.”

Background on the case

Nevada’s COVID-19 guidance has been of particular concern and litigation for religious liberty advocates since it was issued this summer. The timeline, unfortunately, included a Supreme Court denial for emergency injunction in late July. “I am saddened and disappointed that the Supreme Court did not take this opportunity to bring sanity into this dispute over religious exercise in Nevada,” said Russell Moore in response.

Justice Neil Gorsuch perhaps sums up the situation best in his dissent, “The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

As litigation continued, in September, Travis Wussow, ERLC’s vice president of public policy, and Ryan Tucker, senior counsel at ADF, co-authored an explainer outlining the timeline and arguments. And they encouraged Christians to think about the fundamental freedoms and public responsibilities in tension during the pandemic.

“The First Amendment provides broad and strong protections for religious exercise, and governments should ordinarily avoid any interference with a church’s worship practices. Indeed, religious freedom is a foundational, bedrock right that must be respected by our governing officials. Public officials also have the authority to protect public health and safety. These two public responsibilities may be in tension, but one does not negate the other; the First Amendment is not suspended even during a pandemic.”

Gov. Sisolak then made a change to his pandemic restrictions in October, reported as a “kick start to convention season”. While the new guidance would allow churches to hold gatherings of 250 people, casinos were permitted to continue to operate at 50% capacity without a cap on the total number of people allowed inside.

Before the hearing at the 9th Circuit, Moore spoke to the clear logic of the resolution needed, “if casinos can be trusted to be open while maintaining safety, then certainly churches can be.” He urged Gov. Sisolak to “stop singling out houses of worship, and instead to partner with churches, as is happening in communities all over the country, to combat this virus. These arbitrary and capricious treatments of churches undermine the ability to do that. Churches are eager to serve their communities safely, and should be allowed to do so.”

The Supreme Court’s Ruling on New York’s Restrictions

Thankfully, this is what the 9th Circuit panel decision allowed–respect for the fundamental freedom of religious liberty and equal treatment of similar spaces during a pandemic.

This week’s decision in favor of Calvary Chapel comes after the religious liberty win at the Supreme Court the Wednesday before the Thanksgiving holiday in Roman Catholic Diocese of Brooklyn v. Cuomo. Wussow wrote about the importance of the New York decision in a recent article, The Supreme Court changes course on religious liberty and the pandemic. This shift is meaningful not only so that public health policy in our nation respects the First Amendment, but also for the freedom of churches to care for their cities during this crisis.

How churches are serving Nevada

For pastors in Nevada like Vance Pitman, senior pastor Hope Church in Las Vegas, this year’s obstacles were also opportunities. “Our people saw an obstacle and began to serve in the community,” Pitman shared with the ERLC.

The congregation of Hope Church met the needs that the pandemic brought about in their city by providing meals for critical health care professionals, foster families, and others in financial need. The church also hosted drive-through COVID-19 testing sites and led over 20 supply drives for their area hospitals. Pitman recounted how the churches of Macedonia in 2 Corinthians 8 met the needs of their community, “for in a severe test of affliction, their abundance of joy and their extreme poverty have overflowed in a wealth of generosity.”

“That’s exactly what we saw here in Las Vegas,” Pitman reflected, “our people served in the community and gave generously and in the midst of this incredible pandemic, we’ve experienced the greatest financial year in the history of our church. Every obstacle is an opportunity to see God’s faithfulness and join in God’s activity.”

This is a difficult time and just this week, the pandemic reached yet another grave milestone passing 300,000 Americans deaths from this virus. As the people of God, we know that in this grief-stricken season, we need our church communities. We need to pray together, provide meals for one another, support the nurses and doctors and pharmaceutical professionals providing healthcare, and yes, we need to gather together as the church as we are able. With this decision by the 9th Circuit, churches in Nevada are able to meet responsibly and serve generously in the face of the ongoing COVID-19 pandemic and the challenges it creates for their communities.

Jeff Pickering

Jeff Pickering is the director of the Initiative on Faith & Public Life, a project of the American Enterprise Institute. AEI is a leading public policy think tank in Washington, DC and the initiative exists to equip Christian college students for faithful engagement in public life. Jeff moved to Washington … Read More