RENO, Nev. — Unsuccessful in an earlier bid for an emergency injunction, a Nevada church is asking the U.S. Supreme Court again to consider its challenge of coronavirus restrictions on religious gatherings as a test case for others brought by churches across the country arguing their First Amendment rights are being violated.
“This case is an ideal vehicle to solve the nationwide problem of government discrimination against churches in ad hoc COVID-19 orders,” lawyers for Calvary Chapel Dayton Valley wrote in the unusual new filing Thursday.
In a sharply divided 5-4 decision in July, the high court refused the church’s request for a temporary order blocking enforcement of Nevada’s 50-person cap on religious gatherings while its appeal is pending before the 9th Circuit Court of Appeals in San Francisco.
The appellate court has scheduled oral arguments Dec. 8 on the merits of the appeal of a ruling by a U.S. judge in Reno upholding Gov. Steve Sisolak’s 50-person cap on attendance at indoor church services to help slow the pandemic’s spread.
Calvary Chapel argues the cap is an unconstitutional violation of their religious freedoms partly because casinos and other businesses are allowed to operate at 50% of capacity.
“There is no constitutional right to gamble, but there is one that protects attending worship services,” said David Cortman, senior counsel for the Alliance Defending Freedom representing the church.
The Christian church in rural Lyon County 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.
Other secular businesses allowed to operate at half capacity include restaurants, gyms, hair salons and bowling alleys.
The new filling is a “petition for a writ of certiorari before judgment” seeking review despite the pending appeal. Such petitions are rare and their approval rarer, even though they require approval by only four justices.
Chief Justice John Roberts sided with the 5-4 majority turning back Calvary Chapel’s request this summer before the death of Justice Ruth Bader Ginsburg. The opening on the bench recently was filled by Justice Amy Coney Barrett, who seems likely to align herself with the four conservative justices who sided with the church in July.
“There is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel,” Justice Neil Gorsuch wrote then in one of three strongly worded dissents.
“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,” Justice Samuel Alito added.
Nevada’s lawyers will have at least a month to respond to the new request. Neither Sisolak nor the state attorney general’s office had any immediate comment, their spokespersons said on Friday.
“Governor Sisolak’s discriminatory treatment of churches is so stark that four justices would have granted Calvary Chapel an injunction pending appeal,” the new filing states.
“Yet five justices’ denials of such an injunction — presumably under the high standard of review — has extended the incursion of Calvary Chapel’s free exercise and speech rights and has resulted in conflict in lower-court decisions, some denying churches equal treatment,” it says.
“The court should use this opportunity to grant the petition and clarify for all that the First Amendment does not allow government officials to use COVID-19 as an excuse to treat churches and their worshippers worse than secular establishments and their patrons.”
Several courts across the country have considered similar cases in recent months, but Nevada’s is the only one on which the Supreme Court has ruled since it upheld restrictions on religious gatherings in California in May.
Calvary Chapel’s lawyers said the high court’s review is warranted “whether now or after any adverse Ninth Circuit issues ruling on the merits of Calvary Chapel’s preliminary injunction appeal.”
If the Supreme Court doesn’t agree by its last conference in January to take up the case, “it is a practical impossibility that oral argument will be heard and an opinion issued before the end of the 2020 term,” they said.
“Time is of the essence,” they wrote. “Any delay will cause historically severe damage to First Amendment rights.”
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