A summer day in front of the US Supreme Court Building in Washington, DC.
RENO — Leaders of a Dayton church are asking the U.S. Supreme Court to suspend the state's 50-person cap on religious gatherings while an appellate court considers their claim that COVID-19 restrictions treating casinos and others more leniently violate their constitutional right to freely exercise their beliefs.
Gov. Steve Sisolak's June 4 directive allowing casinos, restaurants, bowling alleys and amusement parks to reopen at 50% of capacity while maintaining a hard cap for church services "simply turns the First Amendment on its head," lawyers for Calvary Chapel Dayton Valley wrote in the request to the high court for an emergency injunction.
"The Free Exercise Clause protects the exercise of religion. No constitutional provision protects the right to gamble at casinos, eat at restaurants, or frolic at indoor amusement parks," they said.
The church appealed to the 9th U.S. Circuit Court of Appeals last month after a federal judge in Nevada upheld the state's policy.
Last week, the appellate court in San Francisco denied the church's request for an emergency injunction pending the outcome of the appeal. The three-sentence ruling pointed to the Supreme Court's refusal in May to strike down California's limit on the size of religious gatherings.
Calvary Chapel's lawyers said in the request filed late Wednesday at the Supreme Court that it will take several months to obtain a ruling from the 9th Circuit, "by which time the legal landscape may have changed but the irreparable harm to the church's First Amendment rights will be irreversible."
"Only this court can halt Nevada from treating nearly every activity imaginable better than the exercise of religion," they said.
The state has until July 15 to respond at the Supreme Court.
Nevada's lawyers maintain the right to practice religion freely does not include liberty to expose the community to communicable disease.
"Temporarily narrowing restrictions on the size of mass gatherings, including for religious services, does not outbalance the health and well-being of Nevada citizens," they said in their most recent filings in the 9th Circuit.
The Lyon County church said in its emergency application for an injunction pending appellate review that it wants to follow the same 50% capacity limit at a sanctuary that typically holds up to 200 people.
Others allowed to operate at 50% of capacity include bars, gyms, arcades, water parks and swimming pools. Movie theaters are subject to the 50-person cap — but that applies to individual theaters within a multiplex, which means as many 900 people could be present inside a building with 18 screens.
"Calvary Chapel only seeks to host about 90 people at a socially-distanced church service, while the governor allows hundreds to thousands of people to gamble and enjoy entertainment at casinos," the 59-page filing states. "The governor allows this mix of shared handles, cards, tokens, tables, servers, drinks, restrooms, and seats by hundreds to thousands in casinos at 50% capacity, while forbidding more than 50 people to sit — masked, and socially distanced — in places of worship."
The church said the state clearly favors "speaking a commercial message to live audiences over communicating religious expression," despite the fact that the Supreme Court has long held that commercial speech occupies a "subordinate position in the scale of First Amendment values."
"The Constitution forbids the governor from privileging commercial messages about gambling, fitness, entertainment, and liquor over Calvary Chapel's fully-protected religious speech," the church said.
Calvary Chapel said it agrees Gov. Sisolak has broad discretion to address the COVID-19 outbreak.
"What the governor may not do is favor secular assemblies in COVID-19-ridden, urban areas by allowing many — if not most — of them to occur at 50% of building capacity, while sharply limiting gatherings at places of worship in rural counties with a small number of COVID-19 infections to 50 people max."