United States v. 2020-12-15 | 20-16169 | CALVARY CHAPEL DAYTON VALLEY V. STEVE SISOLAK | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CALVARY CHAPEL DAYTON VALLEY,
Plaintiff-Appellant,

v.

S
TEVE SISOLAK, in his official
capacity as Governor of Nevada;
AARON FORD, in his official capacity
as the Nevada Attorney General;
F
RANK HUNEWILL, in his official
capacity as Sheriff of Lyon County,
Defendants-Appellees.
No. 20-16169

D.C. No.
3:20-cv-00303-
RFB-VCF

OPINION

Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding

Argued and Submitted December 8, 2020
San Francisco, California

Filed December 15, 2020

Before: DANNY J. BOGGS,
*
MILAN D. SMITH, JR.,
and MARK J. BENNETT, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

*
The Honorable Danny J. Boggs, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by
designation.

2 CALVARY CHAPEL DAYTON VALLEY V. SISOLAK

SUMMARY
**

Civil Rights

The panel reversed the district court’s denial of a request
for a preliminary injunction, and remanded, in an action
seeking to bar enforcement of section 11 of Nevada
Governor’s emergency directive which imposed a fifty-
person cap on indoor in-person services at houses of
worship, as part of an effort to limit the spread of COVID-
19.

Calvary Chapel asserted that § 11 of the Directive was
not neutral and generally applicable because it expressly
treated at least six categories of secular assemblies better
than it treated religious services. The panel held that the
Supreme Court’s recent decision in Roman Catholic Diocese
of Brooklyn v. Cuomo, — S. Ct. —, 2020 WL 6948354
(2020) (per curiam), arguably represented a seismic shift in
Free Exercise law, and compelled the panel to reverse the
district court. The panel held that the restrictions in the
Nevada Governor’s Directive, although not identical to New
York’s, required attendance limitations that created the same
“disparate treatment” of religion. Because “disparate
treatment” of religion triggers strict scrutiny review—as it
did in Roman Catholic Diocese—the panel reviewed the
restrictions in the Directive under strict scrutiny.

The panel held that although slowing the spread of
COVID-19 was a compelling interest, the Directive was not

**
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.

CALVARY CHAPEL DAYTON VALLEY V. SISOLAK 3

narrowly tailored to serve that interest. The panel reversed
the district court, instructed the district court on remand to
employ strict scrutiny review to its analysis of the Directive,
and preliminarily enjoined the State from imposing
attendance limitations on in-person services in houses of
worship that were less favorable than 25% of the fire-code
capacity. The panel instructed that the district court could
modify this preliminary injunctive relief, consistent with this
opinion and general equitable principles.

COUNSEL

David A. Cortman (argued) and Rory T. Gray, Alliance
Defending Freedom, Lawrenceville, Georgia; Kristen K.
Waggoner and John J. Bursch, Alliance Defending Freedom,
Washington, D.C.; Ryan J. Tucker and Jeremiah J. Galus,
Alliance Defending Freedom, Scottsdale, Arizona; Jason D.
Guinasso, Reno, Nevada; for Plaintiff-Appellant.

Craig A. Newby (argued), Deputy Solicitor General; Aaron
D. Ford, Attorney General; Office of the Attorney General,
Las Vegas, Nevada; for Defendants-Appellees Steve Sisolak
and Aaron Ford.

Brian R. Hardy (argued) and Kathleen A. Wilde, Marquis
Aurbach Coffing, Las Vegas, Nevada, for Defendant-
Appellee Frank Hunewill.

4 CALVARY CHAPEL DAYTON VALLEY V. SISOLAK

OPINION
M. SMITH, Circuit Judge:
Calvary Chapel Dayton Valley (Calvary Chapel)
challenges Nevada Governor Steve Sisolak’s Directive 021
(the Directive) as a violation of the Free Exercise Clause of
the First Amendment to the United States Constitution. The
district court denied the church’s request for a preliminary
injunction barring enforcement of the Directive against
houses of worship. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2020, Nevada Governor Steve Sisolak
declared a state of emergency in Nevada because of the
spread of COVID-19, and issued emergency directives
aimed at limiting the spread of the virus. The specific
emergency directive challenged here is Directive 021, which
Governor Sisolak issued on May 28, 2020.
1

1
Although the Directive is no longer in effect, we held in an
order denying the State’s motion to dismiss that Calvary Chapel’s
case is not moot. Governor Sisolak could restore the Directive’s
restrictions just as easily as he replaced them, or impose even more
severe restrictions. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000); see also Elim
Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 344–45
(7th Cir. 2020). In fact, Governor Sisolak has issued numerous
emergency directives after Directive 021. For example, Directive
035, which is currently in effect, limits houses of worship to “the
lesser of 25% of the listed fire code capacity or 50 persons.” In
contrast, it imposes only a 25% limit on commercial entities such
as casinos; bowling alleys, arcades, miniature golf facilities,
amusement parks, and theme parks; restaurants, food
establishments, breweries, distilleries, and wineries; museums, art
galleries, zoos, and aquariums; and gyms, fitness facilities, and

CALVARY CHAPEL DAYTON VALLEY V. SISOLAK 5

The Directive “strongly encourage[s]” all Nevadans to
stay at home “to the greatest extent possible.” In general, it
prohibits gatherings of more than fifty people “in any indoor
or outdoor area[.]” More specifically, the Directive imposes
limits of the lesser of 50% of fire-code capacity or 50 people
in movie theaters (per screen), museums, art galleries, zoos,
aquariums, trade schools, and technical schools. It prohibits
public attendance at musical performances, live
entertainment, concerts, competitions, sporting events, and
any events with live performances. Retail businesses,
bowling alleys, arcades, non-retail outdoor venues, gyms,
fitness facilities, restaurants, breweries, distilleries,
wineries, and body-art and piercing facilities must cap
attendance at 50% of their fire-code capacities. The
Directive delegates the power to regulate casino occupancy
to the Nevada Gaming Control Board, which ultimately
imposed an occupancy cap of 50% of fire-code capacity, in
addition to a wide variety of other restrictions and
requirements.
Calvary Chapel challenges § 11 of the Directive, which
imposes a fifty-person cap on “indoor in-person services” at
“houses of worship.” The church alleges that gathering its
members in one building “is central to [its] expression of
[its] faith in Jesus Christ,” and the Directive
unconstitutionally burdens this religious expression.
Calvary Chapel further argues that the Directive is not
neutral or generally applicable because it targets,

fitness studios. Declaration of Emergency for Directive 035,
https://gov.nv.gov/News/Emergency_Orders/2020/2020-11-24_-
_COVID19_Emergency_Declaration_Directive_035. Although the
only directive before us today is the Directive, we emphasize that all
subsequent directives are subject to the same principles outlined in this
opinion, and that many of the issues we identify in the Directive persist
in Directive 035.

6 CALVARY CHAPEL DAYTON VALLEY V. SISOLAK

discriminates against, and shows hostility toward houses of
worship.
2

The district court denied Calvary Chapel’s motion for
injunctive relief. The court concluded that the church did
not demonstrate a likelihood of success on its Free Exercise
claim, relying heavily on Chief Justice Roberts’s
concurrence in South Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613 (2020) (mem.). Like the Chief
Justice in South Bay, the district court found that the State
treated similar secular activities and entities—including
lectures, museums, movie theaters, trade and technical
schools, nightclubs, and concerts—the same as or worse than
church services. Accordingly, the court concluded that the
Directive was neutral and generally applicable.
After appealing the district court’s order, Calvary Chapel
filed an emergency motion with our court for an injunction
pending appeal. A two-judge panel of our court denied the
church’s motion. See Calvary Chapel Dayton Valley v.
Sisolak, No. 20-16169, 2020 WL 4274901, at *1 (9th Cir.
July 2, 2020). The church next turned to the Supreme Court,
filing an application seeking injunctive relief pending
appeal. The Supreme Court denied that application. See
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603
(2020) (mem.). Calvary Chapel then filed a petition for a
writ of certiorari before judgment with the Supreme Court,
see Sup. Ct. R. 11, and that petition remains pending while
we consider the church’s merits appeal to our court.

2
Calvary Chapel included an as-applied challenge to the Directive
in its First Amended Complaint. The district court found that Calvary
Chapel did not provide a sufficient factual basis for this claim. Calvary
Chapel did not appeal this ruling of the district court.

CALVARY CHAPEL DAYTON VALLEY V. SISOLAK 7

In this appeal, Calvary Chapel contends that § 11 of the
Directive is not neutral and generally applicable because it
expressly treats at least six categories of secular assemblies
better than it treats religious services. These categories
include casinos, restaurants and bars, amusement and theme
parks, gyms and fitness centers, movie theaters, and mass
protests. Because of these facial defects, Calvary Chapel
seeks to apply strict scrutiny review to the Directive, and
contends that the State has failed to demonstrate that it has a
compelling interest, or that the Directive is narrowly
tailored.
In response, the State argues that Jacobson v.
Massachusetts, 197 U.S. 11 (1905), provides the proper
framework governing a state’s authority during a public
health crisis. The State further argues that even if Jacobson
does not apply, the Directive does not violate the Free
Exercise Clause because it is a neutral and generally
applicable law—it imposes “[s]imilar or more severe
restrictions . . . to comparable secular gatherings.” South
Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring).
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1),
and we reverse.
STANDARD OF REVIEW
We review “the district court’s decision to grant or deny
a preliminary injunction for abuse of discretion.” Sw. Voter
Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th
Cir. 2003) (en banc) (per curiam). “Within this inquiry, [this
court] review[s] the district court’s legal conclusions de
novo and its factual findings for clear error.” Ramos v. Wolf,
975 F.3d 872, 888 (9th Cir. 2020) (citing Hernandez v.
Sessions, 872 F.3d 976, 987 (9th Cir. 2017)).

8 CALVARY CHAPEL DAYTON VALLEY V. SISOLAK

ANALYSIS
“The Free Exercise Clause of the First Amendment,
which has been made applicable to the States by
incorporation into the Fourteenth Amendment . . . provides
that ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof[.]’” Emp’t Div., Dep’t of Human Res. v. Smith,
494 U.S. 872, 876–77 (1990) (internal citations and
emphasis omitted). In determining whether a law prohibits
the free exercise of religion, courts ask whether the law “is
neutral and of general applicability.” Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993) (citing Smith, 494 U.S. at 879). If it is, then the law
need only survive rational basis review—even if it “has the
incidental effect of burdening a particular religious
practice.” Id. If it is not neutral and generally applicable,
the law must survive strict scrutiny review. Id. at 546.
The Supreme Court’s recent decision in Roman Catholic
Diocese of Brooklyn v. Cuomo, — S. Ct. —, 2020 WL
6948354 (2020) (per curiam), arguably represented a seismic
shift in Free Exercise law, and compels the result in this
case.
3
In Roman Catholic Diocese, two houses of worship
sought an injunction pending their appeal in the Second

3
We respectfully join the Supreme Court in saying that
members of our court “are not public health experts, and we should
respect the judgment of those with special expertise and
responsibility in this area. But even in a pandemic, the Constitution
cannot be put away and forgotten. The restrictions at issue here, by
effectively barring many from attending religious services, strike at
the very heart of the First Amendment’s guarantee of religious
liberty. Before allowing this to occur, we have a duty to conduct a
serious examination of the need for such a drastic measure.” Roman
Catholic Diocese, 2020 WL 6948354, at *3.

CALVARY CHAPEL DAYTON VALLEY V. SISOLAK 9

Circuit from the Supreme Court, seeking relief from an
Executive Order issued by the Governor of New York that
addressed the spread of COVID-19 in the state. That order
imposed “restrictions on attendance at religious services in
areas classified as ‘red’ or ‘orange’ zones.” Id. at *1. In red
zones, religious service attendance was capped at 10 people,
and in orange zones, it was capped at 25. Id. In both zones,
however, the order provided that essential businesses could
“admit as many people as they wish[ed].” Id. at *2. The
Court did not provide an exhaustive list of businesses
deemed “essential,” but did note that “acupuncture facilities,
camp grounds, garages, . . . plants manufacturing chemicals
and microelectronics[,] and all transportation facilities” were
included. Id. Moreover, in orange zones, even “non-
essential businesses [could] decide for themselves how
many persons to admit.” Id.
The Court ultimately concluded that the houses of
worship had shown a likelihood of success on the merits. Id.
at *1. The challenged executive order, the Court held,
“violate[d] ‘the minimum requirement of neutrality’ to
religion.” Id. (quoting Church of Lukumi, 508 U.S. at 533).
Under the Court’s reasoning, the New York order was not
neutral because it “single[d] out houses of worship for
especially harsh treatment.” Id. For example, “a large store
in Brooklyn . . . could literally have hundreds of people
shopping there on any given day,” whereas “a nearby church
or synagogue would be prohibited from allowing more than
10 or 25 people inside for worship service.” Id. at *2
(internal quotations omitted). The Court held that this
“disparate treatment” of religion rendered the COVID-19
restrictions in the order not neutral or generally applicable.
Id. But see Church of Lukumi, 508 U.S. at 533; Smith,
494 U.S. at 878.

10 CALVARY CHAPEL DAYTON VALLEY V. SISOLAK

Applying strict scrutiny review to the New York order,
the Court held that “[s]temming the spread of COVID-19 is
unquestionably a compelling interest,” but concluded the
challenged order was not narrowly tailored. Roman Catholic
Diocese, 2020 WL 6948354, at *2. The Court reasoned that
“[n]ot only is there no evidence that the [two houses of
worship] have contributed to the spread of COVID-19[,] but
there were many other less restrictive rules that could be
adopted to minimize the risk to those attending religious
services,” emphasizing that the New York restrictions are
“far more severe than has been shown to be required to
prevent the spread of the virus.” Id. For example, New York
could have tied maximum attendance at a religious service
“to the size of the church or synagogue.” Id. Because the
COVID-19 restrictions in the order did not survive strict
scrutiny—and the houses of worship satisfied the other
Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7 (2008), factors—the Court preliminarily enjoined the
“enforcement of the Governor’s severe restrictions on the
[houses of worship’s] religious services.” Id. at *4.
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

CALVARY CHAPEL DAYTON VALLEY V. SISOLAK 11

Diocese—we will review the restrictions in the Directive
under strict scrutiny. Id.
The district court never reached the question of whether
the Directive survives strict scrutiny review because it
thought that then-current law required only rational basis
review. Although, “[a]s a general rule,” we do “not consider
an issue not passed upon below,” we have discretion to
decide “a purely legal” question where “resolution of the
issue is clear and . . . injustice might otherwise result.”
Quinn v. Robinson, 783 F.2d 776, 814 (9th Cir. 1986). We
find it necessary to exercise our discretion here, just as the
Supreme Court did in Roman Catholic Diocese, when it
enjoined certain features of an order that had already been
replaced.
4

To survive strict scrutiny review, the Directive “must be
‘narrowly tailored’ to serve a ‘compelling’ state interest.”
Roman Catholic Diocese, 2020 WL 6948354, at *2 (quoting
Church of Lukumi, 508 U.S. at 546). 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

4
The Supreme Court concluded that “injunctive relief [wa]s
still called for because the applicants remain[ed] under a constant
threat that the area in question [would] be reclassified as red or
orange . . . . If that occur[red] again, the reclassification [would]
almost certainly bar individuals in the affected area from attending
services before judicial relief [could] be obtained.” Roman
Catholic Diocese, 2020 WL 6948354, at *3 (internal citation
omitted).

12 CALVARY CHAPEL DAYTON VALLEY V. SISOLAK

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.
See id.
For these reasons, Calvary Chapel has demonstrated a
likelihood of success on the merits of its Free Exercise claim.
It has also established that the occupancy limitations
contained in the Directive—if enforced—will cause
irreparable harm, and that the issuance of an injunction is in
the public interest. See id. at *3; Winter, 555 U.S. at 20.
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.
CONCLUSION
For the reasons above, we reverse the district court and
remand for further proceedings. This order shall act as and
for the mandate of this court.
REVERSED AND REMANDED.