On Tuesday, in the Ninth Circuit, an appellate panel, in an opinion authored by Judge Milan D. Smith, ruled that recent Supreme Court precedent mandated that public health restrictions during the COVID-19 pandemic involving occupancy limits in houses of worship must be tailored to the size of the building, not the number of people generally.
The underlying litigation, as explained by the opinion, involved a church in Nevada suing the state to overturn a now-defunct executive order (EO) from the governor that imposed “a fifty-person cap on indoor in-person services at houses of worship.” This marked the second attempt by the church to overturn this executive order, having been initially denied a preliminary injunction as the district court “found that the state treated similar secular activities and entities–including lectures, museums, movie theaters, trade and technical schools, night clubs, and concerts—the same as or worse than church services. Accordingly, the court concluded that the Directive was neutral and generally applicable.”
The church filed a second claim for a preliminary injunction enjoining the executive order — albeit no longer in place — from being re-established if circumstances changed concerning the COVID-19 pandemic. The defendant argued that the EO being rescinded meant the plaintiff’s case is moot. The court averred that in normal circumstances, the defendant would be correct, however, “Governor Sisolak could restore the (EO’s) restrictions just as easily as he replaced them, or impose even more severe restrictions.” The appellate panel went further to point out that the governor had in fact implemented another EO subsequent to the one at issue in this case that contained “many of the issues we identify in the (EO being challenged at present).”
The plaintiff alleged that under the First Amendment, any public health mandate infringing upon the freedom of religious assembly only passes constitutional muster if the mandate is “neutral and generally applicable” by being equally applicable to secular assemblies. The church asserts that the EO failed to meet this standard as houses of worship had to cap indoor assemblies at 50 persons — irrespective of the size of the religious facility — while restaurants and retail stores could admit up to 50% of its occupancy maximum as determined by state fire codes.
The defendant disputed the plaintiff’s claims, averring that the law was indeed “neutral and generally applicable” as it treated all “non-essential” and “essential” businesses the same. The court disagreed, pointing to the recent Supreme Court case of Roman Catholic Diocese of Brooklyn v. Cuomo, which the court marked as “representing a seismic shift in Free Exercise law, and compel(ling) the result in this case.” In the Cuomo case, the majority for the Court held a public health mandate infringing upon the free exercise of religion — regardless of the severity of the public health issue at hand — is only “neutral and generally applicable” if it treats all assemblies for religious purposes the same as it treats all secular assemblies, regardless of whether an assembly or the facility it is housed within is deemed to be “essential” or “non-essential.”
The appellate panel held that the Nevada EO therefore violated the First Amendment by not applying the 50% occupancy cap to all organizations, secular and religious, and thus placing harsher requirements on houses of worship, deeming the EO to be neither “neutral (nor) generally applicable.” The court explained that it reached this reasoning given that any EO which infringes upon religious assembly in this manner must prove itself to further a compelling government interest in a way that is narrowly tailored to that interest. The opinion stated that while “stemming the spread of COVID-19 is unquestionably a compelling interest” the EO is not “narrowly tailored because, for example, maximum attendance at a religious service could be tied to the size of the house of worship.”
The court concluded by overturning the district court’s denial of the preliminary injunction and remanding for additional review by the district court utilizing the application of the new legal standard, as laid out in the Cuomo case. The appellate panel additionally preliminarily enjoined 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 court wrote, “We respectfully join the Supreme Court in saying that members of our court are not public health experts, and we should respect the judgement 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.”