Shelter In Place and Reopening Plan Litigation: SCOTUS Again Rejects Request for Emergency Application on Religious Services Restrictions

The 5-4 majority continues to hold as the United States Supreme Court recently denied another request to stay enforcement of restrictions on worship services in Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4251360 (2020). In the decision issued on July 24, 2020, Chief Justice Roberts, joined by Justices Ginsburg, Kagan, Sotomayor and Breyer, denied the request of Calvary Chapel Dayton Valley for emergency injunctive relief from Nevada’s 50-person limitation on indoor religious services aimed at curbing the spread of COVID-19. The majority’s denial was issued without an opinion while the dissenters issued detailed opinions. As is explained below, it is important to review the Calvary Chapel decision in the context of the Supreme Court’s recent decision in the similar case of South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020) (“South Bay Pentecostal”).

Interplay between South Bay Pentecostal and Calvary Chapel Decisions
The 5-4 split decision in Calvary Chapel follows form of the Supreme Court’s earlier decision on May 29, 2020 in South Bay Pentecostal, where the five Justice majority also rejected a church’s request for emergency injunctive relief from California’s restrictions on worship services.

• Attendance Caps on Comparable Secular Gatherings. In the South Bay Pentecostal case, Chief Justice Roberts authored a two-page opinion explaining that comparable secular gatherings in California such as lectures, concerts, movie showings, spectator sports, and theatrical performances have similar or more severe restrictions than those imposed on worship services. The Nevada restrictions challenged in Calvary Chapel arguably pose a closer First Amendment related question than the regulations at issue in California, as Nevada’s measures do not subject casinos, restaurants, bars and gyms to the same 50-person limit applicable to religious services. Instead, certain secular activities (such as casinos) have a cap of no more than 50% of the total occupancy limit which for casinos and various other businesses would allow hundreds of people to patronize their establishments.
• Deference to Public Health and Safety Decisions. Justice Roberts’ South Bay Pentecostal opinion notes that “especially broad” latitude should be given to the officials entrusted with protecting health and safety during this pandemic and “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” In rejecting the request for injunctive relief in Calvary Chapel, Roberts along with the four liberal Justices continue to defer to the decisions made by state officials regarding the health and safety measures put in place to protect their communities from the virus.

Analysis of Calvary Chapel Decision
While the Supreme Court Justices forming the majority decision in the Calvary Chapel case have not offered a written opinion, it is likely that they are in accord with the District Court’s assessment. By contrast, the dissenting opinions of the Supreme Court Justices make clear that they see no constitutionally sound basis for allowing casinos, restaurants, bars and gyms to operate with larger groups than are allowed for religious services.

• The District Court’s opinion in Calvary Chapel notes that casinos are subject to additional restrictions not applicable to worship services, such as a face mask requirement, and that the church had failed to consider the totality of restrictions placed on casinos and other entities when it did its comparative analysis.
• Given the unfortunate rapid increase in viral infections and the evolving nature of restrictions to address such, the District Court explained that interceding would require courts to potentially engage in daily or weekly decisions about public health measures that have traditionally been left to state and local officials.
• The District Court also explained that secular activities such as concerts, lectures and sporting events, are treated the same or more restrictively as compared to worship services, and that whether a church is more like a casino or more like a concert for purposes of assessing virus transmission risks is the sort of dynamic and fact intensive decision that the courts should refrain from making.

Takeaways
In Calvary Chapel, the Supreme Court has again rejected an attempt by a church to loosen the numerical limits placed on worship services aimed at controlling viral spread during the COVID-19 pandemic. Throughout the U.S., religious institutions continue to challenge various restrictions on their operations with the undeterred goal of ultimately persuading the Supreme Court that restrictions on worship services have gone too far and the evolving circumstances are such that it is time for courts to stop deferring to the decisions of state and local officials regarding public health and safety measures. For example, the South Bay Pentecostal case is now proceeding on a second round of injunctive relief briefing and is likely headed back up the appellate ladder. (Please click here for a Meyers Nave Client Alert about the South Bay Pentecostal decision.)

The recent rise in coronavirus infections is causing numerous cities, counties and states to reassess their reopening plans to try to control the pandemic. Thus, government officials will continue to face the important challenge of ensuring that religious services are not disfavored as compared to secular gatherings as they take action to protect their communities from infections that occur when large numbers of people gather together for extended periods of time.