In July, the Court ruled against Calvary Chapel, a church in Nevada. The unsigned opinion, which split 5-4, did not offer any analysis. Presumably, Chief Justice Roberts was willing to quietly stand by his South Bay concurrence. And the other four couldn’t be bothered to reply to the excellent dissent from Justice Kavanaugh. Well, four become three, and blue Monday shifted to red Thursday. After Diocese, South Bay was no more.
Now, the lower courts have begun to shift the jurisprudence. The Sixth Circuit recently buried South Bay, though the Court distinguished Diocese in an unpersuasive fashion.
Today, the Ninth Circuit has joined the fray. A three-judge panel has ruled in favor of Calvary Chapel church. (My former boss, Judge Danny Boggs of the Sixth Circuit, was sitting by designation on the Ninth). The panel found that Diocese “arguably represented a seismic shift in Free Exercise law, and compels the result in this case.” This case came out one way under South Bay, and came out the opposite way under Diocese.
Here is the crux of the Court’s analysis:
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. Id. at *2. Because “disparate treatment” of religion triggers strict scrutiny review—as it did in Roman Catholic Diocese—we will review the restrictions in the Directive under strict scrutiny.
Remember, Chief Justice Roberts would limit comparison’s to “comparable secular gatherings.” But Diocese dropped the “comparable” requirement. If any secular gatherings are treated more favorably, strict scrutiny is triggered. The per curiam opinion didn’t quite adopt Justice Kavanaugh’s “most favored right” framework, but it is difficult to read the case any other way. Here, the Ninth Circuit compared houses of worship to some pretty dissimilar businesses: “Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities.” Because those secular gathering places were subject to a different regime, the state had the burden to justify that disparate treatment.
Here, Nevada was unable to satisfy the rigors of strict scrutiny. Specifically, the state could achieve its interest through more narrowly tailored means. The court explained that Nevada could drop the hard cap, and restrict attendance at houses of worship to a certain percentage of the occupancy limit.
The Directive—although less restrictive in some respects than the New York regulations reviewed in Roman Catholic Diocese—is not narrowly tailored because, for example, “maximum attendance at a religious service could be tied to the size of the [house of worship].” Id. In other words, instead of a fifty-person cap, the Directive could have, for example, imposed a limitation of 50% of fire-code capacity on houses of worship, like the limitation it imposed on retail stores and restaurants, and like the limitation the Nevada Gaming Control Board imposed on casinos. Therefore, though slowing the spread of COVID-19 is a compelling interest, the Directive is not narrowly tailored to serve that interest.
Ultimately, the panel did not grant an injunction pending appeal. It “instructed” the District Court to enjoin the regulations.
Accordingly, we reverse the district court, instruct the district court to employ strict scrutiny review to its analysis of the Directive, and preliminarily enjoin the State from imposing attendance limitations on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity. The district court may modify this preliminary injunctive relief, consistent with this opinion and general equitable principles. See Winter, 555 U.S. at 20. We encourage the district court to act expeditiously in connection with any such modification.
This move was savvy. Nevada can’t credibly seek a Supreme Court stay, because there is no injunction in place. I am not sure if the Ninth Circuit rules permit a petition for rehearing en banc here. Again, I think such a petition is premature because the District Court has not yet ruled. In theory, at least, the District Court could deny an injunction. And therein lies the rub. If the District Court decides to deny relief, the panel could swoop in with an injunction pending appeal. Your move District Court. “Act expeditiously.”
Or Nevada could consent to a 25% limitation, and avoid further litigation. This latter path would be better.
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