RENO — A Dayton church is trying again to persuade the 9th U.S. Circuit of Appeals that the state's 50-person cap on religious gatherings is unconstitutional.
Lawyers for Calvary Chapel Dayton Valley filed new briefs with the San Francisco-based appellate court on Wednesday after the Supreme Court narrowly refused in July to grant an emergency order suspending Nevada's COVID-19 church cap.
They're emphasizing the three dissenting opinions from the high court's 5-4 decision in their latest bid to prove that parishioners' religious freedoms are being violated partly because casinos and other secular businesses are allowed to operate at 50% capacity.
The Lyon County church wants to allow as many as 90 people to attend services at the same time — with masks required, spaced 6-feet apart — at the sanctuary east of Reno with a capacity of 200.
Its lawyers say Gov. Steve Sisolak's claim that the hard cap on churches is needed to guard against the spread of COVID-19 "defies reason."
"A casino entertaining 1,000 gamblers has no impact on public health while Calvary Chapel increasing its service size from 50 people to 90 would cripple the state's health effort?" they asked in Wednesday's filing accusing the state of putting profits ahead of the First Amendment.
"It has everything to do with Nevada's person-based tourism economy," they said.
The high court's decision followed the 9th Circuit's refusal to grant temporary injunctive relief after a federal judge in Reno upheld the state policy in May and again in June.
"Calvary and its counsel should not be allowed to continually second-guess Nevada's efforts to protect public health against a novel, highly contagious virus," Deputy Solicitor General Craig Newby wrote in mid-August.
But the church argues the landscape has changed.
"This is not just a 14-day or 30-day temporary, emergency measure," it said. "Restricting religious gatherings for more than five months, with no end in sight, is not a rapidly changing, temporary measure that deserves substantial deference. It is government overreach in clear violation of constitutional principles."
Other Nevada businesses allowed to operate at half capacity include gyms, hair salons, bowling alleys and water parks.
Sisolak, a Democrat, insists the policy is legal because it doesn't target religious establishments or attempt to regulate speech based on ideology or opinion.
"No preference has been provided for commercial speech versus religious speech in public areas," his lawyers said.
Consistent with White House guidelines, Sisolak "has implemented directives to slowly reopen Nevada to ensure the curve stays flat and that there is no need to completely revert back to earlier phases that require further sacrifices from all Nevadans to remain safe," they said.
They maintain casinos are different because they're licensed by the state and subject to restrictions beyond the virus guidelines.
"Choosing to reopen a highly regulated industry, that is subject to significant regulatory control that allows for a rapid shutdown if a second COVID-19 outbreak arises, makes sense," the state says.
Nevada's case is the only one the Supreme Court has considered since it upheld restrictions on religious gatherings in California in May.
Chief Justice John Roberts sided with the liberal majority in denying Cavalry Chapel's request without explanation. Justices Brett Kavanaugh, Neil Gorsuch and Samuel Alito each wrote their own dissent, the latter joined by Kavanaugh and Clarence Thomas.
"That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court's willingness to allow such discrimination is disappointing," Alito wrote July 25.
"There are certain constitutional red lines that a state may not cross even in a crisis," Kavanaugh added in his own dissent.
Gorsuch said: "There is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel,."
The church said Wednesday federal courts have an obligation "to stop unconstitutional actions by state officials."
"And this court has a monopoly on the legal power to do so since the governor will not relent."