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Ninth Circuit Upholds COVID-19 Closure and Capacity Limits on Summer Waterpark

Slidewaters LLC v. Washington State Dept. of Labor and Industries, et al.

On July 8, 2021, the Ninth Circuit Court of Appeals upheld the dismissal of a waterpark’s action against the State of Washington for allegedly violating its constitutional rights when the State first closed waterparks and later imposed capacity restrictions in an effort to combat the COVID-19 pandemic.  The Ninth Circuit decision held that challenges involving economic rights and companion COVID-19 restrictions will generally be reviewed under the deferential rational basis standard of review.

In response to the COVID-19 pandemic, the State of Washington imposed restrictions on a number of industries, which included a complete closing of waterparks during the summer of 2020 and 50% capacity limit for the summer of 2021.  Slidewaters challenged these restrictions, asserting a substantive due process violation on the basis that the restrictions impinged on its “right to pursue a common calling and right to use its property as well as its employees’ right to work and its owners’ right to pursue their business and use their property as they see fit.”

The Ninth Circuit affirmed the dismissal of Slidewaters’ claim.  The court explained that the rights to pursue a common calling and to use property as one wishes are economic in nature, not fundamental rights—such as the First Amendment right to free exercise of religion at issue in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct 63 (2020)—and therefore trigger only rational basis review.  Under that deferential standard, the Court that the State is entitled to great leeway in fashioning regulations to protect the public health, and even greater leeway during an emergency.  Thus, creating categories of activity that were based on how “essential” they are is a permissible way for the State to regulate activity, and the State is not required to do an individual assessment of every individual business or property.

Slidewaters is the latest decision affording governments great latitude in regulating economic activity to protect against the threat of COVID-19.  In distinguishing between economic and religious rights at issue where the Supreme Court has applied strict scrutiny, the Ninth Circuit has made clear that secular businesses seeking to challenge state and local COVID-19 restrictions will face a steep uphill climb.