Cars stop at a station at a drive-thru Stations of the Cross for social distancing due to the coronavirus on Good Friday at the New Song church, Friday, April 10, 2020, in Henderson, Nev. (AP Photo/John Locher)
RENO — A Dayton church is asking a U.S. appeals court to overturn a federal judge's refusal to strike down the state's 50-person cap on religious gatherings as unconstitutional.
Calvary Chapel Dayton Valley has filed formal notice of its appeal to the 9th U.S. Circuit Court of Appeals in San Francisco after a judge in Las Vegas rejected its second request last week for a preliminary injunction blocking enforcement of the hard cap.
It also filed a new request to resume worship services, while the appeal is pending, under strict social distancing guidelines at 50% of the church's capacity — the same limit placed on casinos and others to help prevent the spread of the coronavirus.
The church in Lyon County east of Reno maintains the current cap violates members' First Amendment right to express and exercise their beliefs because it "treats religious gatherings worse than similar secular gatherings," including casinos, restaurants, taverns, gyms, bowling alleys, theme parks and arcades.
"People sitting in chairs for 45 minutes mostly listening to sermons can be no worse than hundreds to thousands of people sitting near one another, mingling, drinking, playing the slots, and exchanging cards or chips for hours on end," Calvary Chapel's lawyers wrote in the appeal notice filed late Monday.
The unequal treatment is further evidenced by the fact Gov. Steve Sisolak and Attorney General Aaron Ford, both Democrats, "have allowed and encouraged protests where hundreds or thousands of people have gathered" at recent demonstrations over racism and policing, they said.
"That protests may be important or are difficult to address is no reason to treat religious worship as less vital," they wrote. "Any public-health danger is much more pronounced when thousands of people gather to protest shoulder-to-shoulder for hours at a time shouting or chanting their desired message than its when people sit calmly, socially distanced at church."
The appeal came as Nevada reported its single largest daily increase of new cases of the coronavirus and Sisolak announced he won't further ease restrictions on any businesses or gatherings until the end of the month.
Health officials said Tuesday that 379 new cases were reported statewide Monday. The previous biggest one-day increase was 295 on May 22.
The church wants to allow up to 90 people who make reservations at 45-minute services spaced 6 feet (2 meters) apart in the 200-capacity sanctuary.
"Calvary Chapel's comprehensive health and safety plan —and location in a rural area in which the number of COVID-19 cases is extremely low — justify this targeted relief," it said.
U.S. Judge Richard Bouleware II said in denying the church's request last week it could file a new motion for injunctive relief if it has new evidence of a pattern of discriminatory enforcement targeting places of worship. In order to prove selective enforcement, he said it must demonstrate the state is only enforcing the directive against churches.
He also rejected arguments that churches are analogous to casinos, noting casinos are subject to substantial, additional restrictions by state gambling regulators.
Sisolak briefly touched on churches and protests Monday night when he announced there'd be no relaxation of restrictions before June 30. Casinos that had been closed since mid-March were allowed to reopen June 4 at half normal capacity.
"Churches are a different situation. They are an indoor facility, which makes it a little more impactful than it is outside," Sisolak said, adding that the protests are "a big concern."
"I support everyone's ability and right to protest and getting involved. And I think that is a fabulous thing to do," he said. But television coverage of protesters without masks "troubles me."
Sisolak said it's unrealistic to expect protesters to remain 6 feet apart, "but I would certainly hope they would distance themselves as much as possible and — without a doubt — wear face coverings."