Calvary Chapel Dayton Valley v. Sisolak

Item

Title

Calvary Chapel Dayton Valley v. Sisolak

Description

The Supreme Court denied a request from Calvary Chapel Dayton Valley to hold services on the same terms as other facilities in the state (such as casinos). Chief Justice John Roberts joined the court's more liberal judges in the majority decision, while the ruling drew sharp dissent from the more conservative judges. This is the second decision from the Supreme Court regarding religious institutions' ability to hold services.

Date Created

July 8, 2020
July 9, 2020
July 15, 2020
July 16, 2020
July 24, 2020

Community

Calvary Chapel Dayton Valley

Denomination

Christian

State

Nevada
District of Columbia

Place

Dayton
U.S. Supreme Court

Genre

Supreme Court Opinion Relating to Orders

Language

English

extracted text

APP NO. 20A-______
--------------------------IN THE SUPREME COURT OF THE UNITED STATES
--------------------------CALVARY CHAPEL DAYTON VALLEY,
Applicant,
v.
STEVE SISOLAK, in his official capacity as Governor of Nevada; et al.,
Respondents.
--------------------------To the Honorable Elena Kagan,
Associate Justice of the United States Supreme Court
and Circuit Justice for the Ninth Circuit
--------------------------EMERGENCY APPLICATION FOR AN INJUNCTION PENDING APPELLATE REVIEW
KRISTEN K. WAGGONER
JOHN J. BURSCH
ALLIANCE DEFENDING FREEDOM
440 First Street, NW
Suite 600
Washington, DC 20001
(616) 450-4235
kwaggoner@ADFlegal.org
jbursch@ADFlegal.org
RYAN J. TUCKER
JEREMIAH J. GALUS
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
rtucker@ADFlegal.org
jgalus@ADFlegal.org

DAVID A. CORTMAN
Counsel of Record
RORY T. GRAY
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd, NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
dcortman@ADFlegal.org
rgray@ADFlegal.org
JASON D. GUINASSO
500 Damonte Ranch Parkway, Suite 980
Reno, NV 89521
(775) 853-8746
jguinasso@hutchlegal.com

Counsel for Applicant
Calvary Chapel Dayton Valley

CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6, Calvary Chapel Dayton Valley states
that it is a Nevada nonprofit corporation with no parent company or stock.
PARTIES TO THE PROCEEDING
The applicant (plaintiff-appellant below) is Calvary Chapel Dayton Valley, a
church located in Dayton, Nevada.
The respondents (defendants-appellees below) are Steve Sisolak, in his official
capacity as Governor of Nevada; Aaron Ford, in his official capacity as Attorney
General of Nevada; and Frank Hunewill, in his official capacity as Sheriff of Lyon
County.
LIST OF ALL PROCEEDINGS
U.S. Court of Appeals for the Ninth Circuit, No. 20-16169, Calvary Chapel
Dayton Valley v. Sisolak, order entered July 2, 2020.
U.S. District Court for the District of Nevada, No. 3:20-cv-00303, Calvary
Chapel Dayton Valley v. Sisolak, orders entered June 11, 2020 and June 19, 2020.
DECISIONS BELOW
The district court’s unreported order denying Calvary Chapel Dayton Valley’s
motion for a temporary restraining order or preliminary injunction is reprinted in
Appendix (“App.”) A. The district court’s unreported order denying the church’s
motion for an injunction pending appeal is available at No. 3:20-cv-00303, 2020 WL
3404700 (D. Nev. June 19, 2020) and reprinted in App. B. The Ninth Circuit’s

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unreported order denying the church’s motion for an injunction pending appeal is
reprinted in App. C.
JURISDICTION
Calvary Chapel filed its verified amended complaint challenging Directive
021 under the First Amendment’s Free Exercise, Free Speech, and Free Assembly
Clauses on May 28, 2020. Calvary Chapel Dayton Valley v. Sisolak, No. 3:20-cv00303 (D. Nev.), ECF 8. That same day the church filed an emergency motion for a
temporary restraining order or preliminary injunction. Id., ECF 9, 19. The district
court had jurisdiction under 28 U.S.C. 1331 and 1343, and authority to issue
declaratory and injunctive relief under 28 U.S.C. 1343 and 2201–02.
The United States District Court for the District of Nevada denied Calvary
Chapel’s motion on June 11, 2020. Calvary Chapel Dayton Valley v. Sisolak, No.
3:20-cv-00303 (D. Nev.), ECF 43 (App. A). On June 15, 2020, the church filed a
timely notice of appeal, id., ECF 46, and a motion for an injunction pending appeal
in the district court, id., ECF 47. The district court denied that motion on June 19,
2020. Id., ECF 55 (App. B).
The United States Court of Appeals for the Ninth Circuit had jurisdiction
over Calvary Chapel’s interlocutory appeal under 28 U.S.C. 1292(a)(1). The church
filed an emergency motion for an injunction pending appeal in the Ninth Circuit on
June 22, 2020. Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.),
ECF 9. The Ninth Circuit denied that motion on July 2, 2020. Id., ECF 20 (App. C).

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This Court has jurisdiction under 28 U.S.C. 1651. Calvary Chapel’s
application is “in aid of [this Court’s] jurisdiction,” id., because it will take several
months to obtain a ruling from the Ninth Circuit on the church’s preliminaryinjunction appeal, by which time the legal landscape may have changed but the
irreparable harm to the church’s First Amendment rights will be irreversible.

iii

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ................................................................ i
PARTIES TO THE PROCEEDING ............................................................................... i
LIST OF ALL PROCEEDINGS ..................................................................................... i
DECISIONS BELOW ..................................................................................................... i
JURISDICTION............................................................................................................. ii
TABLE OF AUTHORITIES ......................................................................................... vi
STATEMENT OF THE CASE ....................................................................................... 3
A.

Calvary Chapel Dayton Valley and its religious services ....................... 3

B.

Governor Sisolak’s directive .................................................................... 6

C.

Lower court proceedings .......................................................................... 8

ARGUMENT ................................................................................................................ 10
I.

The Governor’s directive violates the Free Exercise Clause under
South Bay and this Court’s precedent.............................................................. 12
A.

Casinos .................................................................................................... 13

B.

Restaurants and Bars ............................................................................ 14

C.

Amusement and Theme Parks............................................................... 15

D.

Gyms and Fitness Facilities .................................................................. 16

E.

Movie Theaters ....................................................................................... 16

F.

Mass Protests ......................................................................................... 17

II.

The Governor’s directive violates the Free Speech Clause by favoring
commercial over-noncommercial speech and the communication of
secular perspectives over religious views......................................................... 18

III.

The Governor’s reasons for treating secular assemblies and speech
better than Calvary Chapel’s religious gatherings cannot pass muster
and amplify the violation of our fundamental law. ......................................... 20

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IV.

Jacobson does not change the outcome. ........................................................... 25

V.

The Governor’s directive fails strict scrutiny. ................................................. 26

VI.

Calvary Chapel meets all of the requirements for an injunction.................... 27

CONCLUSION............................................................................................................. 28
CERTIFICATE OF SERVICE ..................................................................................... 30

v

TABLE OF AUTHORITIES
Cases
Antietam Battlefield KOA v. Hogan,
No. 1:20-cv-01130, 2020 WL 2556496 (D. Md. May 20, 2020) ............................... 14
Calvary Chapel of Bangor v. Mills,
No. 1:20-cv-00156, 2020 WL 2310913 (D. Me. May 9, 2020) ................................. 15
Capitol Square Review & Advisory Board v. Pinette,
515 U.S. 753 (1995) ................................................................................................. 19
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ......................................................................................... passim
City of Ladue v. Gilleo,
512 U.S. 43 (1994) ................................................................................................... 21
Cross Culture Christian Center v. Newsom,
No. 2:20-cv-00832, 2020 WL 2121111 (E.D. Cal. May 5, 2020) ............................. 15
Elrod v. Burns,
427 U.S. 347 (1976) ................................................................................................. 28
Espinoza v. Montana Department of Revenue,
No. 18-1195, 2020 WL 3518364 (S. Ct. 2020) ............................................... 3, 12, 19
Good News Club v. Milford Central School,
533 U.S. 98 (2001) ................................................................................................... 20
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ............................................................................................. 25–26
League of Independent Fitness Facilities & Trainers, Inc. v. Whitmer,
No. 20-1581, 2020 WL 3468281 (6th Cir. June 24, 2020) ...................................... 17
Little Sisters of the Poor Home for the Aged, Denver v. Sebelius,
134 S. Ct. 1022 (2014) ............................................................................................. 11
Lucas v. Townsend,
486 U.S. 1301 (1988) ............................................................................................... 12
Maryville Baptist Church v. Beshear,
No. 3:20-cv-278, 2020 WL 1909616 (W.D. Ky. Apr. 18, 2020) ............................... 15

vi

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,
138 S. Ct. 1719 (2018) ....................................................................................... 22, 25
McDaniel v. Paty,
435 U.S. 618 (1978) ................................................................................................. 13
Metromedia, Inc. v. City of San Diego,
453 U.S. 490 (1981) ........................................................................................... 12, 20
Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission,
479 U.S. 1312 (1986) ............................................................................................... 11
Ohralik v. Ohio State Bar Association,
436 U.S. 447 (1978) ................................................................................................. 19
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ..................................................................................... 20, 26–27
Roberts v. Neace,
958 F.3d 409 (6th Cir. 2020) ............................................................................... 3, 28
Rosenberger v. Rector & Visitors of University of Virginia,
515 U.S. 819 (1995) ........................................................................................... 12, 21
Soos v. Cuomo,
No. 1:20-cv-651, 2020 WL 3488742 (N.D.N.Y. June 26, 2020) .................. 14, 24–25
Sorrell v. IMS Health, Inc.,
564 U.S. 552 (2011) ................................................................................................. 20
South Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020) ..................................................................................... passim
South Bay United Pentecostal Church v. Newsom,
959 F.3d 938 (9th Cir. 2020) ................................................................................... 25
Spell v. Edwards,
__ F.3d __, No. 20-30358, 2020 WL 3287239 (June 18, 2020) ......................... 24–25
Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017) ....................................................................................... 12, 13
Statutes
28 U.S.C. 1651 ............................................................................................................... 1
28 U.S.C. 1292(a)(1) ....................................................................................................... ii

vii

28 U.S.C. 1331 ............................................................................................................... ii
28 U.S.C. 1343 ............................................................................................................... ii
28 U.S.C. 2201–02.......................................................................................................... ii
Other Authorities
Andy Meek, Please avoid this activity right now above all others, BGR.com (July
1, 2020), https://bit.ly/38A0fux ................................................................................ 15
Carson City Health & Human Servs., Quad-County COVID-19 Update (July 4,
2020), https://bit.ly/2ZJRtGd..................................................................................... 6
Emily Rumball, Crowds flock to Las Vegas casinos after reopening, Daily Hive
(June 10, 2020), https://bit.ly/2AyGSFL ................................................................. 14
Governor Sisolak, COVID-19 Declaration of Emergency Directive 021 – Phase
Two Reopening Plan (May 28, 2020) ........................................................................ 2
Governor Sisolak, COVID-19 Declaration of Emergency Directive 024 (June 24,
2020), https://bit.ly/3iuSvhR ..................................................................................... 6
Governor Sisolak, COVID-19 Declaration of Emergency Directive 026 (June 29,
2020), https://bit.ly/3dVW79o .................................................................................... 2
Jackie Valley & Riley Snyder, Sisolak, elected officials pledge to address
systemic racism and society’s ‘double standard’ toward black protestors, The
Nev. Indep. (June 5, 2020), https://bit.ly/2Z6bBU5 ................................................. 8
Kelsey Penrose, Gov. Sisolak makes appearance at Black Lives Matter Protest in
Carson City, Carson NOW.org (June 19, 2020), https://bit.ly/2VKTS2p. ............... 8
Nevada Dep’t of Health & Human Servs., COVID-19 Data Dashboard,
https://bit.ly/31X6kQr .............................................................................................. 19
Sabrina Schnur, Juneteenth rally, march on Las Vegas Strip draw scores of
protestors, Las Vegas Review-Journal (June 19, 2020), https://bit.ly/2NZ9Mlm.. 18
Sukbin Jang et al., Cluster of Coronavirus Disease Associated with Fitness
Dance Classes, South Korea, CDC Research Letter (August 2020),
https://bit.ly/2O45Qjb .............................................................................................. 17
Will Stone, Bars are reopening in some places and closing in others. If you go,
know the risks, NPR (July 3, 2020), https://n.pr/2O0Zhhk .................................... 15

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Rules
Supreme Court Rule 29.6 ............................................................................................... i
Supreme Court Rule 20 ................................................................................................. 1
Supreme Court Rule 22 ................................................................................................. 1
Supreme Court Rule 23 ................................................................................................. 1

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To the Honorable Elena Kagan, as Circuit Justice for the United States Court of
Appeals for the Ninth Circuit:
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. Accordingly, under this Court’s Rules 20, 22, and 23, and 28 U.S.C.
1651, Applicant Calvary Chapel Dayton Valley respectfully requests an injunction
pending appellate review allowing the church to hold in-person worship services on
the same terms as comparable secular assemblies in keeping with its comprehensive
health and safety plan. 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. Ninth Circuit Excerpts of
Record (“ER”) 83, 100, 166–70.

Las Vegas Image from June 4, 2020
ER 170
1

In fact, Governor Sisolak’s Directive 021,1 which has now been extended
through July 31, 2020,2 allows large groups to assemble in close quarters for
unlimited periods at casinos, gyms, restaurants, bars, indoor amusements parks,
bowling alleys, water parks, pools, arcades, and more subject only to a 50%-fire-codecapacity limit. But the directive limits gatherings at places of worship to 50 people
max, no matter their facilities’ size or the precautions they take.
Discriminating against religious assemblies and speech for no rational—let
alone compelling—reason presents an “indisputably clear” violation of the First
Amendment. S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614
(2020) (Roberts, C.J., concurring in denial of application for injunctive relief). Calvary
Chapel has voluntarily complied with the Governor’s COVID-19-related orders,
including mandatory face coverings and social distancing. All that Calvary Chapel
requests is equal treatment, and for the Governor to stop discriminating against the
church’s gatherings based on its religious status. Espinoza v. Mont. Dep’t of Revenue,
No. 18-1195, 2020 WL 3518364, at *5 (S. Ct. 2020). Calvary Chapel has exhausted its
lower-court options. Only this Court can halt Nevada from treating nearly every
activity imaginable better than the exercise of religion.
This is a straightforward case. If the Governor deems it acceptable for secular
assemblies to occur at 50% capacity at casinos, restaurants, bars, gyms and fitness

Governor Sisolak, COVID-19 Declaration of Emergency Directive 021 – Phase Two
Reopening Plan (May 28, 2020), https://bit.ly/3eXRFYQ.
2 Governor Sisolak, COVID-19 Declaration of Emergency Directive 026 (June 29,
2020), https://bit.ly/3dVW79o.
1

2

facilities, indoor and outdoor theme parks, bowling alleys, water parks, pools,
arcades, and more, he must apply the same 50%-capacity rule to constitutionallyprotected worship services. Nor may state officials encourage mass protests, or in the
Governor’s case personally participate in one, while limiting gatherings at places of
worship to a strict numerical cap. Large crowds meeting for extended periods in close
proximity are ubiquitous at all of these secular locations. Yet the district court held
that state officials may discriminate against religious gatherings if they treat a few
secular assemblies worse. And the Ninth Circuit agreed in a three-sentence order
that merely cites South Bay. But that is not the law or what South Bay held. Unless
this Court intervenes, lower courts will continue allowing the First Amendment to
“sleep through” the COVID-19 outbreak, which now appears less like a temporary
emergency than a new way of life. Roberts v. Neace, 958 F.3d 409, 415 (6th Cir. 2020).
STATEMENT OF THE CASE
A.

Calvary Chapel Dayton Valley and its religious services

Calvary Chapel Dayton Valley is a Christian church located in Dayton,
Nevada, an unincorporated region of Lyon County. Dayton is home to roughly 9,500
people. Since 2006, the church has sought to love, teach, and reach Dayton Valley
for Christ. ER 653–55. Calvary Chapel routinely held two Sunday services capable
of accommodating up to 200 people. But Governor Sisolak’s directives have barred
the church from holding anything resembling its normal religious gatherings for
over 3 months.

3

During the COVID-19 outbreak, Calvary Chapel was determined to do its
part and temporarily suspended in-person worship services in favor of streaming
services online. ER 656. This emergency measure could not last because it caused
real spiritual harm. Some people who attend Calvary Chapel are unable to view
online services, leaving them vulnerable and alone. ER 654.
Nor does the church believe that virtual or drive-in services meet the Bible’s
command that Christians gather for corporate, prayer, worship, and scriptural
teaching. ER 654. “Ekklesia,” the Greek word in the New Testament translated as
“church,” means “assembly.” ER 654. And Calvary Chapel views church gatherings
as sacred assemblies that embody Christ on earth and are the best expression of
“His image and likeness.” ER 654. If a body of believers fails to hold in-person
gatherings, Calvary Chapel views it as ceasing to be a church in the biblical sense.
That does not mean Calvary Chapel desires to put its flock or the public at
risk. In light of the COVID-19 virus, the church developed a comprehensive health
and safety plan that: (1) limits in-person services to 50% of fire-code-capacity
(roughly 90 people per service), (2) requires six feet of distance between members of
different families and households, (3) restricts gatherings to only Sundays and
Wednesdays, and (4) reduces the length of Sunday services from 90 to 45 minutes.
ER 659. Calvary Chapel’s rigorous safety plan also called for:


asking people to arrive no more than 25 minutes early;



requiring those giving directions to wear face masks;



organizing parking attendants to direct cars;

4



guiding attendees to a designated entrance;



ensuring one-way traffic via a first-in-last-out model and placing signs
on walls and floors;



leaving a half-hour gap between services in which to clean and sanitize
the sanctuary, hallways, bathrooms, and common surfaces;



advising attendees of proper social-distancing methods;



directing attendees to seating that provides at least six feet of
separation between families and those in different households;



making hand-sanitizer stations readily available;



prohibiting handouts or passing other items between persons;



barring coffee or serving snacks;



limiting restroom use to one person at a time;



using prepackaged Communion elements;



directing attendees out of the building; and



instructing people not to congregate in the church.

ER 659–60.
Calvary Chapel filed suit in late May to begin in-person services. Yet even
though the church voluntarily adopted rigorous safeguards, the number of active
COVID-19 cases in Lyon County is small,3 and the church has complied with the
Governor’s general safety mandates—including that most everyone wear a face

Carson City Health & Human Servs., Quad-County COVID-19 Update (July 4,
2020), https://bit.ly/2ZJRtGd (listing 31 active COVID-19 cases in Lyon County).
3

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covering in public spaces,4 Governor Sisolak has refused to allow more than 50 people
to attend Calvary Chapel’s religious gatherings. Simultaneously, the Governor allows
secular assemblies where large crowds gather in close proximity for extended periods
at casinos, gyms, restaurants and bars, indoor amusements parks, bowling alleys,
water parks, pools, and arcades—not to mention mass protests.
B.

Governor Sisolak’s directive

Governor Sisolak’s directives treat houses of worship far worse than secular
places where large, extended, and close gatherings occur day-in-and-day-out. ER
641–52. Directive 021, § 11, orders “[c]ommunities of worship and faith-based
organizations” to limit “indoor in-person services . . . so that no more than fifty
persons are gathered, and all social distancing requirements are satisfied.” ER 644–
45. The directive further stipulates that churches must “stagger services so that the
entrance and egress of congregants for different services [does] not result in a
gathering greater than fifty persons.” ER 645. Violating Directive 021 would subject
Calvary Chapel to potential civil and criminal penalties (§ 39). ER 652.
But, on its face, the Governor’s directive allows six types of comparable secular
assemblies to thrive at up to 50% capacity with no 50-person cap: (1) bowling alleys
and arcades (§ 20); (2) miniature golf facilities, amusement parks, and theme parks
(§ 21); (3) restaurants (§ 25 & ER 748); (4) breweries, distilleries, and wineries (§ 26);
(5) gyms, fitness facilities, and fitness studies (§ 28), and (6) pools, water parks, and

Governor Sisolak, COVID-19 Declaration of Emergency Directive 024 (June 24,
2020), https://bit.ly/3iuSvhR.
4

6

other public aquatic venues (§ 29). ER 646–50. Directive 021 also allows casinos and
other gaming establishments to reopen under rules set by the Nevada Gaming
Control Board (§ 35). ER 651. For over a month, casinos have hosted hundreds to
thousands of people subject to a 50% occupancy limit on each gaming area. ER 581.
The Governor’s directive even applies more favorable rules to cinemas than
churches. Directive 021 allows “indoor movie theaters” to host “the lesser of 50% of
the listed fire code capacity or fifty persons” (§ 20). ER 646. Official industry-specific
guidance for movie theaters clarifies this means “50% of fire code occupancy or 50
people, whichever is lower, per screen.” ER 552 (emphasis added). So while cinemas
may run 18 separate movie theaters filled with 900 people total, places of worship
may only host one gathering at a time, no matter how many large meeting rooms they
have, because “the entrance and egress of congregants for different services [may] not
result in a gathering greater than fifty persons” (§ 11(3)). ER 645.
Directive 021’s real-life operation shows that Nevada allows still more large,
close, and prolonged secular assemblies with no numerical limits. When hundreds of
protestors gathered in packed throngs in violation of the directive (§ 10), not only did
Governor Sisolak and Attorney General Ford tweet their support, ER 161–64, 254–
56, but the Governor later personally participated in an unlawful protest and praised
the gathering, saying: “‘I think these are peaceful folks who are just speaking their

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mind . . . . This is important to them. It’s encouraging to see the young generation
participating so I’m thrilled to come and say hi to them.’”5
Yet when a reporter asked a question regarding state officials’ disparate
treatment of mass protests and church services, the Attorney General responded that
places of worship face punishment because “there was an advertisement that people
are actually going to violate the governor’s orders” and “You can’t spit . . . in the face
of law and expect law not to respond.”6 But that did not stop the Governor from
ignoring his own directive and participating in a mass protest. Supra p. 8 n.5.
State officials approached Nevada’s recent primary election the same way.
Hundreds of people standing in close proximity for hours waiting to vote at a few inperson sites made national headlines. ER 68–72. Officials did nothing to limit
groupings of voters to 50 people, enforce social-distancing rules, or make any effort to
apply Directive 021 to the polling place. ER 77–79.
C.

Lower court proceedings

Once the Governor issued Directive 021, Calvary Chapel amended its
complaint to allege violations of the First Amendment’s Free Exercise, Free Speech,
and Free Assembly Clauses. ER 662–81. The church requested declaratory and
injunctive relief, ER 679, and filed an emergency motion for a temporary restraining

Kelsey Penrose, Gov. Sisolak makes appearance at Black Lives Matter Protest in
Carson City, Carson NOW.org (June 19, 2020), https://bit.ly/2VKTS2p.
6 Colton Lochhead, Sisolak, elected Nevada officials discuss systemic racism, reform,
Law Vegas Review-Journal (June 5, 2020), https://bit.ly/31JhKHr; see also Jackie
Valley & Riley Snyder, Sisolak, elected officials pledge to address systemic racism and
society’s ‘double standard’ toward black protestors, The Nev. Indep. (June 5, 2020),
https://bit.ly/2Z6bBU5.
5

8

order and preliminary injunction, Calvary Chapel Dayton Valley v. Sisolak, No. 3:20cv-00303 (D. Nev.), ECF 9, 19. The district court held a hearing, id., ECF 45, and
denied the motion, id., ECF 43 (App. A).
The district court admitted that “a large number of people may remain in close
proximity for an extended period of time” at both casinos and places of worship. App.
A 6. Yet the court refused to regard them as comparable based on regulatory
distinctions, such as state oversight of casinos’ “financial” and “internal operations,”
that do not affect—let alone increase—public health and safety. Ibid. Despite the
Governor applying “more lenient restrictions” to other “secular activities comparable
to in-person church services,” the district court held Directive 021 neutral and
generally applicable. Id. at 7. It did so because the Governor imposed “more stringent
restrictions” on a few types of secular assemblies, like concerts, sporting events, and
musical performances (§ 22). Ibid. Because Calvary Chapel could not show that the
Governor’s directive only “specifically target[s] places of worship” for adverse
treatment, the district court identified no free-exercise violation. Ibid.
As to Directive 021’s real operation, the district court said that mass protests
are not comparable to religious services. Equally applying the directive to mass
protests “could result in greater harm than that sought to be avoided by the
Directive,” id. at 8, though (apparently) the directive’s harm to free exercise was
justified. The court required “more evidence” that Nevada was not imposing effective
restrictions on “crowded casinos.” Id. at 9. And the Court denied the church’s motion
for leave to file a post-argument brief addressing the recent election. Id. at 10.

9

Calvary Chapel filed a timely notice of appeal,7 Calvary Chapel Dayton Valley
v. Sisolak, No. 3:20-cv-00303 (D. Nev.), ECF 46, and motion for injunction pending
appeal, id., ECF 47. The district court denied the motion. Id., ECF 55, App. B. It
misconstrued the church’s request as a motion for stay or reconsideration, App. B 1–
2, and held that “Plaintiff ha[d] not demonstrated a strong showing of a likelihood of
success on the merits” for the reasons it gave prior, id. at 2. The court also reasoned
that Nevada had just required face coverings within 6 feet of some table and card
games but not at places of worship, id. at 3, which is no longer true, supra p. 6 n.4.
Further, it cited a record-breaking day of COVID-19 infections in Clark and Washoe
Counties, the epicenters of Nevada’s casinos, tourism, and population—not in rural
Lyon County where Calvary Chapel’s religious services take place. Id. at 4.
The church filed an emergency motion for an injunction pending appeal with
the Ninth Circuit. Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.),
ECF 9. A two-judge panel denied the motion in a three-sentence order devoid of
reasoning. Id., ECF 20 (App. C). The panel merely cited Hilton v. Braunskill, 481 U.S.
770, 776 (1987), a habeas-corpus decision of no apparent relevance, and this Court’s
ruling in South Bay. App. C 1.
ARGUMENT
The All Writs Act, 28 U.S.C. 1651(a), authorizes an individual Justice or the
Court to issue an injunction in “exigent circumstances” when the “legal rights at
issue are indisputably clear” and injunctive relief is “necessary or appropriate in aid

7

ER 64–66.
10

of the Court’s jurisdiction.” Ohio Citizens for Responsible Energy, Inc. v. Nuclear
Regulatory Comm’n, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers) (cleaned
up). But this Court’s discretion is broad: it may issue an injunction pending
appellate review “based on all the circumstances of the case [without] express[ing]
. . . the Court’s views on the merits.” Little Sisters of the Poor Home for the Aged,
Denver v. Sebelius, 134 S. Ct. 1022, 1022 (2014).
The Governor’s violation of Calvary Chapel’s First Amendment rights is not
only grievously wrong but “indisputably clear.” S. Bay, 140 S. Ct. at 1614 (Roberts,
C.J., concurring). Even the district court admitted that Directive 021 treats
comparable secular assemblies better than religious services. App. A 7. And no one
disputes that state officials effectively exempted mass protests from the directive’s
restrictions. ER 161–64, 254–56. Nevada’s “unequal treatment” of religious services
is unmistakable. Espinoza, 2020 WL 3518364, at *5.
What’s more, the state favors speaking a commercial message to live
audiences over communicating religious expression. But states may not “afford[] a
greater degree of protection to commercial than to noncommercial speech,”
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (plurality opinion),
or prefer the transmission of secular over religious views, Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 830–31 (1995). When state officials “exceed[]”

11

the “broad limits” of their discretion to such an extraordinary degree, an injunction
should issue. S. Bay, 140 S. Ct. at 1614 (Roberts, C.J., concurring).8
I.

The Governor’s directive violates the Free Exercise Clause under
South Bay and this Court’s precedent.
Because the Governor’s order “directly prohibit[s]” Calvary Chapel’s desired

“religious activity,” it strongly implicates the Free Exercise Clause. Trinity
Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (quoting
McDaniel v. Paty, 435 U.S. 618, 633 (1978) (Brennan, J., concurring in judgment)).
Religious discrimination is “odious to our Constitution.” Id. at 2025. Normally, that
means “government may not use religion as a basis of classification for the
imposition of duties, penalties, privileges or benefits.” McDaniel, 435 U.S. at 639
(Brennan, J., concurring). The Free Exercise guarantees religious believers—at a
bare minimum—“[ ]equal treatment.” Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 542 (1993).
South Bay questioned none of these principles. Members of this Court simply
disagreed about whether California’s unfavorable treatment of places of worship
was based on their religious status or the nature of their gatherings. Some Justices
viewed secular assemblies at supermarkets, factories, and offices as comparable to

To the extent this Court considers whether “four Members of the Court will consider
the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction,
Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers), Justices
Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application for
injunctive relief in South Bay, 140 S. Ct. at 1613, even though warehouse and retail
facilities do not host large, extended, and close gatherings to the same degree as
casinos, bars, gyms, amusement parks, bowling alleys, arcades, and pools.
8

12

religious gatherings at places of worship. S. Bay, 140 S. Ct. at 1615 (Kavanaugh, J.,
dissenting from denial of application for injunctive relief). The Chief Justice, and
presumably other Justices, did not. In the Chief Justice’s view, these particular
secular gatherings were different in kind because “people neither congregate in
large groups nor remain in close proximity for extended periods.” Id. at 1613
(Roberts, C.J., concurring). Not so here.
Governor Sisolak’s directive facially treats at least seven categories of secular
assemblies “where large groups of people gather in close proximity for extended
periods of time” better than religious services, ibid.; supra pp. 6–7, not to mention
the effective exemptions state officials carved out for mass protests and polling
locations. In short, no real argument exists that the Governor’s restrictions on
public gatherings are “neutral and of general applicability,” Lukumi, 508 U.S. at
531, which means the directive must undergo “strict scrutiny,” id. at 546. For
brevity’s sake, Calvary Chapel offers just six examples here.
A.

Casinos

Governor’s Sisolak’s directive allowed Nevada’s casinos to reopen on June 4,
2020. ER 651 (§ 35). Thousands of people swarmed around gaming tables and slot
machines for long periods at 50% capacity.9 ER 83, 100, 166–70.
But that’s not all. Casinos also reopened their (1) live circus acts, ER 89–90;
(2) indoor amusement parks, including Circus Circus’ five-acre Adventuredome, ER

Emily Rumball, Crowds flock to Las Vegas casinos after reopening, Daily Hive (June
10, 2020), https://bit.ly/2AyGSFL.
9

13

92–98; and (3) live dinner shows at 50% capacity, ER 85–87. 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.
B.

Restaurants and Bars

Lower courts are in broad agreement that gatherings at restaurants are
comparable to those at places of worship.10 For months the Governor has allowed
Nevada’s restaurants to operate at 50% seating capacity. ER 648 (§ 25), 748 (§ 17).
Tables and booths must be 6-feet apart, but members of different households are
free to sit side-by-side or directly across from each other. Servers progress from
table-to-table taking orders, delivering food and drinks, mopping up, and collecting
dishes. All the while, diners share appetizers, pass and eat food, and talk freely
across the table without face coverings.11
The risk of COVID-19 transmission is much greater at restaurants than at
Calvary Chapel’s worship gatherings, which are socially-distanced, eliminate coffee
and snacks, exclude passing objects from person-to-person, and only rarely involve
eating and drinking prepackaged Communion elements for a few seconds. ER 659–

E.g., Soos v. Cuomo, No. 1:20-cv-651, 2020 WL 3488742, at *11 (N.D.N.Y. June 26,
2020); Antietam Battlefield KOA v. Hogan, No. 1:20-cv-01130, 2020 WL 2556496, at
*9 (D. Md. May 20, 2020); Calvary Chapel of Bangor v. Mills, No. 1:20-cv-00156, 2020
WL 2310913, at *8 (D. Me. May 9, 2020); Cross Culture Christian Ctr. v. Newsom, No.
2:20-cv-00832, 2020 WL 2121111, at *6 (E.D. Cal. May 5, 2020); Maryville Baptist
Church v. Beshear, No. 3:20-cv-278, 2020 WL 1909616, at *2 (W.D. Ky. Apr. 18, 2020).
11 The Governor’s face-covering order allows people to remove face masks “while
. . . eating or drinking.” Directive 024, § 7(6), supra p. 6 n.4.
10

14

60. Yet while the Governor allows restaurants to operate at 50% seating capacity,
he restricts the church’s gatherings to 50 people total—including clergy, staff, sound
and video technicians, and others who serve and participate in worship.
Bars too may operate at 50% capacity, ER 648 (§§ 25–26), although experts
agree that people drinking in bars run a high risk of contracting COVID-19.12 That
has not deterred Governor Sisolak from permitting mass gatherings at Nevada’s
bars, even though COVID-19 transmissions that “happen in Vegas, don’t stay in
Vegas” but travel elsewhere.
C.

Amusement and Theme Parks

Indoor and outdoor amusement or theme parks in Nevada have now been
open at 50% capacity with social distancing for over a month. ER 646–47 (§ 21). Of
course, social distancing is easier to maintain in Calvary Chapel’s sanctuary using
prearranged seating than it is in long, fluctuating theme-park lines. And only a few
people will sit in the same pew on a Sunday morning, whereas hundreds of people
cycle through often partially-enclosed, theme-park cars. But the Governor sanctions
boisterous crowds waiting for long periods to board popular theme-park rides, while
talking loudly, at the same time he prohibits more than 50 people from (mainly)
sitting quietly and socially-distanced at church.

Will Stone, Bars are reopening in some places and closing in others. If you go, know
the risks, NPR (July 3, 2020), https://n.pr/2O0Zhhk. Andy Meek, Please avoid this
activity right now above all others, BGR.com (July 1, 2020), https://bit.ly/38A0fux.
12

15

D.

Gyms and Fitness Facilities

Under the Governor’s directive, gyms and fitness facilities may open—and
hold large “[g]roup fitness classes”—at 50% capacity so long as there is at least six
feet between equipment or people and various regulations (like sanitation protocols)
are met. ER 648–49 (§ 28). The Governor earlier admitted that gyms are the sort of
places “that promote extended periods of public interaction where the risk of
transmission is high.” ER 705 (§ 2). Yet he now treats assemblies of people
exercising (which increases both breathing and sweating) and actively sharing
machines, weights, and mats better than groups of people that share only their
faith and wish (predominantly) to sit still and listen to clergy speak.
Risks of viral infection are high at fitness facilities. E.g., League of Indep.
Fitness Facilities & Trainers, Inc. v. Whitmer, No. 20-1581, 2020 WL 3468281, at *3
(6th Cir. June 24, 2020); Sukbin Jang et al., Cluster of Coronavirus Disease
Associated with Fitness Dance Classes, South Korea, CDC Research Letter (August
2020), https://bit.ly/2O45Qjb. Any chance of transmission at worship services is
lower, especially those with the wide-ranging precautions Calvary Chapel
voluntarily agreed to undertake. ER 659–60. Nonetheless, the Governor sanctions
fitness facilities welcoming crowds at 50%-capacity, while limiting all places of
worship—no matter their size, locale, or precautions—to 50 people max.
E.

Movie Theaters

The Chief Justice’s South Bay concurrence recognizes that gatherings at
“movie showings” and places of worship are comparable, 140 S. Ct. at 1613 (Roberts,

16

C.J., concurring), which is presumably why the Governor stressed below that he
treats them equally. State Defs.’ Opp’n to Emergency Mot. for an Inj. Pending
Appeal 4, 17, Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), ECF
17 (“State Defs.’ Opp’n”). But that isn’t accurate. What Directive 021 means by
limiting an “indoor movie theater[ ]” to “the lesser of 50% of the listed fire code
capacity or fifty persons,” ER 646 (§ 20), is not the entire cinema but “50 people . . .
per screen” or individual theater, as industry guidance makes clear, ER 552.
So, the Governor allows multiplex cinemas to fill with hundreds of people
(excluding employees), while restricting every place of worship in Nevada to no
more than 50 persons, including those needed to run the service. In real terms,
Calvary Chapel is limited to roughly 35-40 worshipers at a time no matter how
many meeting rooms it has sitting empty because the Governor’s directive
stipulates that “congregants for different services [may] not result in a gathering
greater than fifty persons.” ER 645 (§ 11(3)). It is not equal to cap cinemas at 50
paying customers per room and places of worship at 50 people per complex.
F.

Mass Protests

Hundreds of people in Nevada have stood shoulder-to-shoulder for long
periods shouting or chanting slogans and holding signs.13 ER 254. This violates the
Governor’s general directive that no more than 50 people congregate in or out of
doors. ER 644 (§ 10). Yet instead of discouraging mass protests or threatening to

Sabrina Schnur, Juneteenth rally, march on Las Vegas Strip draw scores of
protestors, Las Vegas Review-Journal (June 19, 2020), https://bit.ly/2NZ9Mlm.
13

17

disperse them based on the public-health risk, Governor Sisolak and Attorney
General Ford encouraged the protestors, ER 161–64, 254–56, while intimidating
places of worship that might consider “violat[ing] the governor’s orders” by hosting
large worship gatherings, supra p. 8 & n.6. The Governor then personally
participated in a protest that violated his own directive, supra, p. 8 n.5, placing
Nevada’s unequal treatment of places of worship beyond doubt.
In sum, Governor Sisolak “exempts or treats more leniently . . . [ ]similar
activities [to religious services] in which people . . . congregate in large groups [and]
remain in close proximity for extended periods.” S. Bay, 140 S. Ct. at 1613 (Roberts,
C.J., concurring). And he does so even though most large, secular assemblies occur
in Clark and Washoe Counties—the epicenter of Nevada’s casinos, tourism, and
COVID-19 outbreak—not in rural Lyon County where Calvary Chapel is located
and the number of COVID-19 cases is small.14 This “unequal treatment” violates the
Free Exercise Clause. Espinoza, 2020 WL 3518364, at *5.
II.

The Governor’s directive violates the Free Speech Clause by favoring
commercial over-noncommercial speech and the communication of
secular perspectives over religious views.
For the reasons described above, the Governor’s directive violates the Free

Speech Clause by privileging commercial over non-commercial, religious speech and
favoring the communication of secular perspectives over religious views. Supra Part
I.A–F. This Court has long held that commercial speech occupies a “subordinate

Nevada Dep’t of Health & Human Servs., COVID-19 Data Dashboard,
https://bit.ly/31X6kQr.
14

18

position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447, 456 (1978). By empowering businesses like casinos, movie theaters,
fitness classes, bars, theme parks, and bowling alleys to express commercial
messages to larger in-person audiences than places of worship are allowed to
communicate noncommercial, religious messages, the Governor’s directive simply
turns the First Amendment on its head.
“[A] free-speech clause without religion would be Hamlet without the prince.”
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) (plurality
opinion). The First Amendment strongly protects Calvary Chapel’s noncommercial,
religious messages, whereas secular business’ commercial expression is “subject to
greater governmental regulation.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 579
(2011). Yet the Governor “inverts this judgment” by affording many secular
businesses “a greater degree of [freedom to express] commercial” messages to live
audiences than he affords places of worship to convey religious speech. Metromedia,
453 U.S. at 513. In so doing, the Governor “conclude[d] that the communication of
commercial information . . . is of greater value than the communication of
noncommercial messages,” a value judgment the Free Speech Clause does not
permit. Ibid. The Constitution forbids the Governor from privileging commercial
messages about gambling, fitness, entertainment, and liquor over Calvary Chapel’s
fully-protected religious speech.
Religion is also a protected “viewpoint,” Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 112 n.4 (2001), which the Governor treats worse than businesses’

19

commercial advertising and mass protestors’ non-commercial standpoints. When
state officials “favor[ ] some speakers over others [based on] a content preference,”
strict scrutiny applies. Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015). Nevada
officials blatantly demonstrated a preference for secular viewpoints here: they allow
many businesses’ for-profit inducements to thrive and applaud, encourage, and even
participate in unlawful mass protests, all while threatening places of worship who
refuse to play by their lopsided rules. Supra pp. 6–8 & nn.5–6.
Under the Free Speech Clause, state officials may not pick and choose what
views are worth hearing in person, nor may they “select the permissible
[standpoints] for public” discussion or “control [individuals’] search for . . . truth.”
City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (cleaned up). Governor Sisolak cannot
decide that proliferating commercial speech and secular protests is worth the cost
and then deem communicating religious ideas less valuable or worthwhile. His
discrimination against Calvary Chapel’s broadcast of religious views palpably
violates the First Amendment. Rosenberger, 515 U.S. at 830–31.
III.

The Governor’s reasons for treating secular assemblies and speech
better than Calvary Chapel’s religious gatherings cannot pass
muster and amplify the violation of our fundamental law.
The Governor gave five main reasons for discriminating against Calvary

Chapel’s religious gatherings and speech below. All fail inspection and many
amplify the Governor’s violation of the First Amendment.
First, the Governor hints that religious gatherings are somehow riskier than
the commercial assemblies that Directive 021 prefers. State Defs.’ Opp’n 20. Not so.

20

An expert in infectious diseases testified on Calvary Chapel’s behalf that “[t]here is
no scientific or medical reason that a religious service that follows the guidelines
issued by the CDC would pose a more significant risk of spreading SARS-CoV-2
than gatherings or interactions at other establishments or institutions.” ER 105. He
further testified that Calvary Chapel “intends to conduct its religious activities with
precautions equal to or more extensive than those recommend by the CDC” and that
“there is no scientific or medical reason to limit or restrict [the church’]s religious
activities but not similarly limit other gatherings or activities.” ER 107. The
Governor suggested Nevada’s public health officials think differently, but gave no
reason why. State Defs.’ Opp’n 22. Nor could he after previously admitting that
secular places like “gyms” and “fitness establishments,” which now operate at 50%
capacity, are exactly the sort of facilities that “promote extended periods of public
interaction where the risk of transmission is high.” ER 705 (§ 2).
Second, the Governor says he treats all “comparable mass gatherings” the
same. State Defs.’ Opp’n 1. What the Governor means is that Directive 021, § 10
limits all public gatherings to a maximum of 50 people if they are not specifically
mentioned elsewhere. ER 644. Ignoring the directive’s myriad exceptions for large,
close, and prolonged secular assemblies—not to mention officials’ effective
exemption of mass protests—is irrational.
So the Governor backtracks to the argument that he treats a couple of
comparable secular assemblies the same, and a few worse. State Defs.’ Opp’n 4–5, 7,
17. By this logic the Governor could shut down every worship gathering in the state

21

as long as he barred live audiences at some disfavored secular assemblies (say,
theater performances and concerts). That is plainly wrong. “[C]ategories of selection
are of paramount concern when a law . . . burden[s] religious practice.” Lukumi, 508
U.S. at 542. Directive 021 is “underinclusive” to a “substantial” degree, id. at 543,
because it fails to impose a 50-person limit on a wide range of comparablenonreligious assemblies “that endanger[ ] [the state’s] interests in a similar or
greater degree than” Calvary’s Chapel’s religious gatherings, ibid. That violates the
Free Exercise Clause, which “bars even ‘subtle departures from neutrality on
matters of religion.’” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138
S. Ct. 1719, 1731 (2018) (quoting Lukumi, 508 U.S. at 534).
Third, the Governor contends that commerce is different from worship. State
Defs.’ Opp’n 15, 18–20, 27. But in contending that religious services are not like
“general commerce,” “picking up groceries,” or other “short [commercial] activities,”
id. at 1, 17, 19, the Governor attacks a straw man. None of Calvary Chapel’s secular
comparators focus on general shopping, during which the Governor claims “people
do not congregate or remain for extended periods.” Id. at 20. People in casinos,
restaurants and bars, gyms and fitness facilities, theme parks, bowling alleys, and
pools do congregate in large numbers, close together, for extended periods.
Nevada’s focus on commerce is both typical and revealing. The Governor has
stalwartly defended treating moneymaking better than faith. After lamenting
Nevada’s “economic sacrifices,” State Defs.’ Opp’n 1, and the state’s “significant loss
of life and business, id. at 3, lionizing gaming as “Nevada’s most recognizable

22

industry,” id. at 5, and declaring it “vital [to the] State’s economy,” the real logic
behind Directive 021 is clear: State officials believe that for-profit assemblies are
important and religious gatherings are not. But this just “devalues religious reasons
for [congregating] by judging them to be of lesser import than nonreligious reasons”
in violation of the Free Exercise Clause. Lukumi, 508 U.S. at 537.
Fourth, the Governor defends treating casinos and mass protests better than
religious services. This argument is self-defeating. If it is worth allowing crowds to
gather in close proximity for long periods for gaming and protests, it is worth
permitting them to meet—socially distanced and faces covered—at Calvary’s
Chapel’s religious services. The Governor cites the overall regulation of casinos as a
talisman intended to ward off any comparison to churches. State Defs.’ Opp’n 6–7,
22. Yet this token fails: the Governor did not cite any health and safety regulations
that even purport to make casinos safer than places of worship. Id. at 7. General
“regulatory control[s]” that bear no relation to preventing COVID-19 infections are
beside the point. Id. at 22.
Fifth, Calvary Chapel’s argument regarding mass protests is not based
merely on state officials’ “refusal to arrest protestors.” State Defs.’ Opp’n 24. The
Governor and Attorney General could easily have agreed with protestors’ message
while discouraging their mass gatherings and non-social-distanced behavior. Spell
v. Edwards, __ F.3d __, No. 20-30358, 2020 WL 3287239, at *4–5 (June 18, 2020)
(Ho, J., concurring) (explaining the difference between tolerance and support); Soos
v. Cuomo, No. 1:20-cv-651, 2020 WL 3488742, at *12 (N.D.N.Y. June 26, 2020)

23

(same). But they did no such thing. Governor Sisolak and Attorney General Ford
did not just tolerate mass protests, they actively encouraged them, ER 161–64, 254–
56, and in the Governor’s case personally participated in one, supra p. 8 n.5, all
while knowing that (1) such gatherings violate Directive 021, § 10 (ER 644), and
(2) mass protestors do not socially distance or take many other recommended health
precautions (ER 254).
When the government makes exemptions for secular reasons, it may not
refuse an exemption “to cases of religious hardship without compelling reason.”
Lukumi, 508 U.S. at 537. “If protest are exempt from [strict numerical caps], then
worship must be too.” Spell, 2020 WL 3287239, at *5 (Ho, J., concurring). Governor
Sisolak and Attorney General Ford cannot lawfully declare that “mass protests are
deserving of preferential treatment.” Soos, 2020 WL 3488742, at *12. Doing so
“passes judgment upon or presupposes the illegitimacy of [Calvary Chapel’s]
religious beliefs and practices.” Masterpiece, 138 S. Ct. at 1731.
Neither may state officials deem applying the directive to mass protests “not
worth it” based on a comparative-harm analysis and then choose to apply the
directive in full force to places of worship. App. A 8. The Governor’s numerical limits
severely harm Calvary Chapel’s First Amendment rights. And state officials may
not “devalue[ ]” or discount this religious harm as unimportant, while
accommodating protestors’ secular concerns. Lukumi, 508 U.S. at 537. “In these
troubled times, nothing should unify the American people more than the principle

24

that freedom for me, but not for thee, has no place under our Constitution.” Spell,
2020 WL 3287239, at *6 (Ho, J., concurring).
IV.

Jacobson does not change the outcome.
The Governor asked lower courts to overlook his blatant First Amendment

violation under Jacobson v. Massachusetts, 197 U.S. 11 (1905). Yet Jacobson does
not change the constitutional analysis. Spell, 2020 WL 3287239, at *4 (Ho, J.,
concurring); S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 942–43
(9th Cir. 2020) (Collins, J., dissenting). The Chief Justice’s South Bay concurrence
states well-trod, free-exercise rules. S. Bay, 140 S. Ct. at 1613 (Roberts, C.J.,
concurring). Only after applying those established principles did the Chief Justice
cite Jacobson for the proposition that the “Constitution principally entrusts the
safety and the health of the people to the politically accountable officials of the
States.” Ibid. (cleaned up).
That is undoubtedly true. Calvary Chapel agrees that Governor Sisolak has
broad discretion to address the COVID-19 outbreak. He may constitutionally
establish all manner of evenhanded limits on public gatherings. After all, Jacobson
concerned a neutral, across-the-board vaccination requirement. 197 U.S. at 12–13.
But 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. That kind of
measure “has no real or substantial relation to [public health], or is, beyond all

25

question, a plain, palpable invasion of rights secured by the fundamental law,” in
which case Jacobson held a regulation must fall under this Court’s review. Id. at 31.
V.

The Governor’s directive fails strict scrutiny.
Because the Governor’s Directive 021 discriminates against religious

gatherings, promotes commercial over fully-protected religious speech, and favors
the broadcast of secular over religious viewpoints, it must undergo strict scrutiny.
The state must “prove that [its] restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, 576 U.S. 155,
171 (2015) (cleaned up). It cannot do so.
Nevada has no compelling interest in allowing 50%-occupancy assemblies at
casinos, restaurants, bars, theme parks, and gyms (and no numerical limits on
protests), but restricting gatherings at places of worship to 50 people. S. Bay, 140 S.
Ct. at 1615 (Kavanaugh, J., dissenting from denial of application for injunctive
relief). In fact, the state has given no sensible explanation for that disparity at all. A
law “cannot be regarded as protecting an interest of the highest order when it
leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi,
508 U.S. at 547 (cleaned up).
More narrowly-tailored means of furthering the state’s legitimate publichealth interests abound. Adopting a 50% occupancy rule for places of worship would
burden religion to a far lesser degree. Or Nevada could evenhandedly place a
numerical limit on all public assemblies. But whatever the state does, “the
Constitution imposes one key restriction on that line-drawing: The State may not

26

discriminate against religion,” S. Bay, 140 S. Ct. at 1615 (Kavanaugh, J.,
dissenting), by allowing secular assemblies and speech to “proliferat[e] . . . while
strictly limiting” religious gatherings and expression, Reed, 576 U.S. at 172. The
Governor “cannot claim that placing strict limits on [religious gatherings] is
necessary to [protect the public health] while at the same time allowing [larger
secular gatherings] that create the same problem.” Ibid.
VI.

Calvary Chapel meets all of the requirements for an injunction.
Because the Governor forbids Calvary Chapel from holding religious services

“in a way that comparable secular businesses and persons can conduct their
activities,” Directive 021 harms the church’s free-exercise and free-speech rights. S.
Bay, 140 S. Ct. at 1615 (Kavanaugh, J., dissenting). And “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparably injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
The balance of equities weighs heavily in Calvary Chapel’s favor. If it is
worth allowing large crowds to gather in close proximity for extended periods to
enjoy non-constitutionally-protected activities at casinos, restaurants and bars,
theme parks, gyms, bowling alleys, arcades, and pools, it is worth allowing people to
gather at places of worship to engage in the constitutionally-protected free exercise
of religion. Calvary Chapel asks for nothing the state does not already give to many
for-profit businesses. It asks for no special favors and just “want[s] to be treated
equally.” S. Bay, 140 S. Ct. at 1615 (Kavanaugh, J., dissenting).

27

When it comes to the public interest, treating similarly situated secular and
religious gatherings “in comparable ways serves public health interests at the same
time it preserves bedrock free-exercise guarantees.” Roberts, 958 F.3d at 416. Equal
treatment is all that Calvary Chapel requests. So the public interest also weighs in
the church’s favor.
CONCLUSION
Calvary Chapel respectfully requests that this Court issue an injunction
pending appellate review that allows the church to host religious gatherings on the
same terms as comparable secular assemblies (at present, 50% fire-code capacity),
with social distancing, face coverings, and other neutral and generally-applicable
precautions in keeping with the church’s comprehensive health and safety plan.

28

Respectfully submitted.
/s/ David A. Cortman
KRISTEN K. WAGGONER
JOHN J. BURSCH
ALLIANCE DEFENDING FREEDOM
440 First Street, NW
Suite 600
Washington, DC 20001
(616) 450-4235
kwaggoner@ADFlegal.org
jbursch@ADFlegal.org

DAVID A. CORTMAN
Counsel of Record
RORY T. GRAY
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd, NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
dcortman@ADFlegal.org
rgray@ADFlegal.org

RYAN J. TUCKER
JEREMIAH J. GALUS
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
rtucker@ADFlegal.org
jgalus@ADFlegal.org

JASON D. GUINASSO
500 Damonte Ranch Parkway, Suite 980
Reno, NV 89521
(775) 853-8746
jguinasso@hutchlegal.com

Counsel for Applicant
Calvary Chapel Dayton Valley

29

CERTIFICATE OF SERVICE
A copy of this application was served by email and U.S. mail to the counsel
listed below in accordance with Supreme Court Rule 22.2 and 29.3:
Craig A. Newby, Deputy Solicitor
OFFICE OF THE NEVADA ATTORNEY GENERAL
100 North Carson Street
Carson City, NV 89701
(775) 684-1206
cnewby@ag.nv.gov
Craig R. Anderson
Brian R. Hardy
Kathleen A. Wilde
MARQUIS AURBACH COFFING
10001 Park Run Drive
Las Vegas, NV 89145
(702) 382-0711
canderson@marquisaurbach.com
bhardy@maclaw.com
kwilde@maclaw.com
/s/ David A. Cortman
DAVID A. CORTMAN
Counsel of Record
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd, NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
dcortman@ADFlegal.org

30

APPENDIX A

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1
2
3
4

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

7

CALVARY CHAPEL DAYTON VALLEY

8
9
10
11

Plaintiff(s),

14

ORDER

v.
STEVE SISOLAK
AARON FORD
FRANK HUNEWILL

12
13

Case No. 3:20-cv-00303-RFB-VCF

Defendant(s).
I.

INTRODUCTION

15

Before the Court are Plaintiff Calvary Chapel Dayton Valley’s (“Calvary” or “Plaintiff”)

16

Emergency Motions for a Temporary Restraining Order and Preliminary Injunction. ECF Nos. 9,

17
18
19
20

19. For the following reasons, the Court denies both motions without prejudice.
II.

PROCEDURAL BACKGROUND

Plaintiff brought its initial complaint on May 22, 2020 and filed the operative amended

21

complaint on May 28, 2020. ECF Nos. 1, 8. The complaint brought facial and as-applied First and

22

Fourteenth Amendment challenges to Governor Sisolak’s emergency directives in response to the

23
24
25
26

COVID-19 pandemic. Id. Plaintiff filed a motion for a temporary restraining order and preliminary
injunction on May 28 and May 29, 2020. ECF Nos. 9, 19. The Court denied Plaintiff’s motion to
consider the motions on an expedited basis. ECF Nos. 16, 23. Defendant Steve Sisolak responded

27

to the motions on June 2, 2020. ECF Nos. 9, 19. Defendant Frank Hunewill joined Defendant

28

Sisolak’s response on that same date. ECF No. 32. Plaintiff filed a supplement to its motion on

Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 2 of 10

1

June 4, 2020 and Defendant Sisolak responded on June 7, 2020. ECF Nos. 38, 39. The Court held

2

a hearing on the motions on June 9, 2020. This written order now follows.

3
4
5

III.

FACTUAL BACKGROUND

The Court makes the following findings of fact. Calvary Chapel Dayton Valley is a

6

Christian church in Dayton, Nevada that has operated since February 5, 2006. Calvary believes

7

that the Bible commands Christians to gather together in person for corporate prayer and worship.

8

On March 16, 2020, in response to the ongoing coronavirus pandemic, Calvary suspended in-

9
10
11

person worship services. However, Calvary sincerely believes that online services and drive-in
services thwart the Bible’s requirement of in-person services for corporate worship, and some

12

church attendees do not have internet access and therefore are not able to participate in online

13

services. Calvary therefore wishes to resume in-person services.

14
15
16
17

On May 26, 2020, Defendant Governor Sisolak announced that Nevada would enter “Phase
Two” of its reopening. To that end, he issued Emergency Directive 021 on May 28, 2020
(hereinafter the “Emergency Directive” or “Directive”). The Emergency Directive permits several

18

categories of business and social activity to resume, subject to different restrictions. For example,

19

Section 10 of the directive prohibits gatherings in groups of more than fifty people in any indoor

20

or outdoor areas. Emergency Directive 021, § 10. Communities of worship and faith-based

21
22
23

organizations are allowed to conduct in-person services so long as no more than fifty people are
gathered, while respecting social distancing requirements. Id. at § 11. Section 20 similarly limits

24

movie theaters to a maximum of fifty people. Id. at §20. Section 35 of the Emergency Directive

25

allows casinos to reopen at 50% their capacity and subject to further regulations promulgated by

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the Nevada Gaming Control Board. Id. at § 35.

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Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 3 of 10

1

IV.

2

The analysis for a temporary restraining order is “substantially identical” to that of a

3
4
5

LEGAL STANDARD

preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240 F.3d
832, 839 n.7 (9th Cir. 2001). A preliminary injunction is “an extraordinary remedy that may only

6

be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.

7

Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must

8

establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely

9
10
11

suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in
its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. &

12

Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter,

13

555 U.S. 7, 20 (2008)). A preliminary injunction may also issue under the “serious questions” test.

14

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the

15
16
17

continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a
preliminary injunction by demonstrating “that serious questions going to the merits were raised

18

and the balance of hardships tips sharply in the plaintiff’s favor,” in addition to the other Winter

19

elements. Id. at 1134-35 (citation omitted).

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21
22
23

V.

DISCUSSION

The Court denies the motions because it finds that Plaintiff has not demonstrated a
likelihood of success on its First Amendment Free Exercise claim. The Court examines both the

24

facial and as-applied challenges to the Emergency Directive. The Court incorporates by reference

25

its findings made on the record, which shall be construed consistent with this written ruling.

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Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 4 of 10

1
2
3
4
5

a. Facial Challenge
The Free Exercise Clause of the First Amendment provides that “Congress shall make no
law respecting an establishment of religion or prohibiting the free exercise thereof.” Am. Family
Ass’n, Inc v. City & Cty. of San Francisco, 277 F.3d 1114, 1123 (9th Cir. 2002) (citing U.S. Const.

6

amend. I). A regulation or law violates the Free Exercise clause when it is neither neutral nor

7

generally applicable, substantially burdens a religious practice, and is not justified by a substantial

8

state interest or narrowly tailored to achieve that interest. Id. (citing Church of Lukumi Babalu

9
10
11

Aye, Inc. v. Hialeah, 508 U.S. 520, 531 – 32 (1993)).
The Constitution principally entrusts “[t]he safety and the health of the people” to the

12

politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts,

13

197 U. S. 11, 38 (1905). When state officials “undertake[ ] to act in areas fraught with medical and

14

scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414

15
16
17

U. S. 417, 427 (1974).
The Supreme Court examined the relationship between COVID-19 related executive orders

18

and the Free Exercise Clause in its recent order in South Bay United Pentecostal Church v.

19

Newsom, No. 19A1044, 2020 WL 2813056 (May 29, 2020). In South Bay, the Supreme Court

20

denied an application for injunctive relief enjoining enforcement of a portion of the California

21
22
23

governor’s executive order to limit the spread of COVID-19. Id. The order limited attendance at
places of worship to 25% of building capacity or a maximum of 100 attendees. Id. at 1. The

24

Supreme Court found that the restrictions appeared consistent with the Free Exercise Clause of the

25

First Amendment. Id. Chief Justice Roberts first noted that “[s]imilar or more severe restrictions

26

apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator

27
28

sports, and theatrical performances, where large groups of people gather in close proximity for
-4-

Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 5 of 10

1

extended periods of time.” Id. Chief Justice Roberts then explained that the “[o]rder exempts or

2

treats more leniently only dissimilar activities, such as operating grocery stores, banks or

3
4
5

laundromats, in which people neither congregate in large groups nor remain in close proximity for
extended periods.” Id. Finally, Chief Justice Roberts concluded that, “[t]he precise question of

6

when restrictions on particular social activities should be lifted during the pandemic is a dynamic

7

and fact-intensive matter subject to reasonable disagreement,” and that when elected officials “act

8

in areas fraught with medical and scientific uncertainties,” their latitude “must be especially

9
10
11

broad.” Id. (internal citations omitted). “When those broad limits are not exceeded, they should
not be subject to second-guessing by an unelected federal judiciary, which lacks the background,

12

competence and expertise to assess public health and is not accountable to the people.” Id. (internal

13

citations omitted).

14
15
16
17
18

The Court finds the holding in South Bay applicable to this case and holds that the
Emergency Directive is neutral and generally applicable and does not burden Plaintiff’s First
Amendment right to free exercise. Consequently, the Court finds that Plaintiff has not
demonstrated a likelihood of success on the merits of its claim.

19

Calvary argues that the Defendants in this case, based upon the plain language of the

20

Emergency Directive, have violated the First Amendment by ‘exceeding the limits’ of their

21
22
23

authority during a public health crisis. Calvary bases its argument on alleged differential treatment
between itself and other secular organizations/activities. Calvary points to several secular

24

businesses that it insists engage in comparable activity in which people gather in large groups and

25

remain in close proximity for large periods of time, including casinos, restaurants, nail salons,

26

massage centers, bars, gyms, bowling alleys and arcades, all of which are allowed to operate at

27
28

50% of official fire code capacity. Calvary specifically focuses on casinos and includes photos in
-5-

Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 6 of 10

1

its briefing of crowded casino gaming centers, after the state reopened them on June 4. Given that

2

any social behavior increases the risk of covid-19 transmission, Calvary argues, there is no

3
4
5

scientific or medical reason to distinguish between places of worship and other comparable
activities.

6

The Court agrees that church services may in some respects be similar to casinos, in that

7

both are indoor locations in which a large number of people may remain in close proximity for an

8

extended period of time. The Court, however, disagrees that casinos are actually treated more

9
10
11

favorably than places of worship. During this phased reopening of Nevada by the Governor,
casinos are subject to substantial restrictions and limitations required by the Nevada Gaming

12

Control Board which exist in addition to and in conjunction with the requirements and oversight

13

provided by the Emergency Directive. See Emergency Directive, § 35; Addendum to April 21,

14

2020 Policy Memorandum posted May 29, 2020; 2020-30 Updated Health and Safety Policies for

15
16
17

Reopening after Temporary Closure posted May 27, 2020; Health and Safety Policy for the
Resumption of Gaming Operations Nonrestricted Licensees posted May 27, 2020; Procedures for

18

Reopening after Temporary Closure Due to COVID-19 posted April 21, 2020, Gaming Control

19

Board. Such additional regulatory policies set forth requirements related not only to the social

20

distancing and placement of table games or slot machines in the casino, for example, but they also

21
22
23

set forth requirements regarding training of the employees, financial operations and other internal
operations of casinos. Id. These casinos are also subject to regular and explicit inspection of all

24

aspects of the respective casino’s reopening plan. Id. Indeed, gaming companies are one of the few

25

categories of organizations in which the directive specifically discusses enforcement and

26

punishment alternatives for violating the directive and concomitant promulgated regulations.

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Emergency Directive, §35. Casinos are therefore subject to heightened regulation and scrutiny
-6-

Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 7 of 10

1

under these guidelines in comparison to churches, regardless of the difference in occupancy cap.

2

The Court finds that while Calvary focuses on the fifty-person cap, it fails to consider the totality

3
4
5

of restrictions placed upon casinos in their comparative analysis. Thus, even if the Court were to
accept casinos as the nearest point of comparison for its analysis of similar activities and their

6

related restrictions imposed by the Governor, the Court would nonetheless find that casinos are

7

subject to much greater restrictions on their operations and oversight of their entire operations than

8

places of worship.

9
10
11

The Court also finds that other secular entities and activities similar in nature to church
services have been subject to similar or more restrictive limitations on their operations. The Court

12

notes that church services consist of activities, such as sermons and corporate worship, that are

13

comparable in terms of large numbers of people gathering for an extend period of time to lectures,

14

museums, movie theaters, specified trade/technical schools, nightclubs and concerts. All of these

15
16
17

latter activities are also subject to the fifty-person cap or remain banned altogether under
Emergency Directive. See Emergency Directive, §§ 20, 22, 27, 30, 32. Given that there are some

18

secular activities comparable to in-person church services that are subject to more lenient

19

restrictions, and yet other activities arguably comparable to in-person church services that are

20

subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an

21
22
23

implicit or explicit attempt to specifically target places of worship. Lukumi, 508 U.S. at 534
(striking down city council ordinance that specifically targeted and forbid animal sacrifices made

24

by a particular religious group). Additionally, whether a church is more like a casino or more like

25

a concert or lecture hall for purposes of assessing risk of COVID-19 transmission is precisely the

26

sort of “dynamic and fact-intensive” decision-making “subject to reasonable disagreement,” that

27
28

the Court should refrain from engaging in. South Bay, 2020 WL 2813056, at * 1. As the Court
-7-

Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 8 of 10

1

finds that the Emergency Directive is neutral and generally applicable, there is no facial Free

2

Exercise challenge, and Calvary has therefore not demonstrated a likelihood of success on the

3
4
5

merits of this claim.
b. As-Applied Free Exercise Challenge: Selective Enforcement

6

In its briefing Calvary also brings an as-applied challenge selective enforcement claim.

7

Specifically, Calvary points to statements made by the Governor and the Attorney General

8

regarding recent protests to argue that the section of the Emergency Directive banning more than

9
10
11

fifty people from gathering, whether inside or outside, is not being enforced against secular
activity. Calvary also includes photographs from casinos which appear to indicate violations of the

12

social distancing requirements of the Directive and photos from Fremont Street in downtown Las

13

Vegas in which it appears that far more than fifty people have gathered.

14
15
16
17

First, the Court is not persuaded that outdoor protest activity is similar to places of worship
in terms of the nature of the activity and its ability to be regulated. Outdoor protests involve
dynamic large interactions where state officials must also consider the public safety implications

18

of enforcement of social distancing. That is to say that such enforcement could result in greater

19

harm than that sought to be avoided by the Directive. The choice between which regulations or

20

laws shall be enforced in social settings is a choice allocated generally to the executive, not the

21
22
23

judiciary, absent clear patterns of unconstitutional selective enforcement.
Moreover, the Court finds that Calvary has not provided a sufficient evidentiary basis for

24

its as-applied challenge. For a selective enforcement claim, it is not enough for Calvary to

25

demonstrate that the directive is intermittently not being enforced against secular activities.

26

Calvary must also demonstrate that Defendants are only enforcing the directive against places of

27
28

worship. See Stormans, Inc v. Wiseman, 794 F.3d 1064, 1083 (9th Cir. 2015) (finding no evidence
-8-

Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 9 of 10

1

of selective enforcement against religiously affiliated pharmacies in enforcement of drug delivery

2

rules). The Plaintiffs have not presented evidence of such a pattern of selective enforcement. While

3
4
5
6

images of crowded casinos attached to its submission may raise a potential future issue of selective
enforcement, the Court must have more evidence than this to find a likelihood of success on the
merits of a selective enforcement claim.

7

The Plaintiff’s selective enforcement claim is premature. The story of the enforcement of

8

these directives has yet to be written. Indeed, the primary official tasked with enforcing the

9
10
11

Emergency Directive in Lyon County is the Lyon County Sheriff. Defendant Sheriff Frank
Hunewill has indicated through counsel that he has no intention of using limited law enforcement

12

resources to enforce the directive against Calvary or other places of worship. Calvary has presented

13

no evidence indicating that it has been subject to actual enforcement by the Sheriff or any other

14

law enforcement officer. Calvary therefore has not demonstrated a likelihood of success on the

15
16
17

merits of its selective enforcement claim. If Calvary does in fact have evidence of selective
enforcement against it, nothing in this order shall prohibit it from returning to the Court with that

18

evidence and filing a new motion for a preliminary injunction.

19

///

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25
26
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28
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Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 10 of 10

1

VI.

2

IT IS THEREFORE ORDERED that Plaintiff’s Emergency Motion for Temporary

3
4
5

CONCLUSION

Restraining Order and Emergency Motion for Preliminary Injunction (ECF Nos. 9, 19) are
DENIED.

6

IT IS FURTHER ORDERED that the Motion for Leave (ECF No. 41) is DENIED

7

without prejudice. The Court does grant Plaintiff leave to file a new subsequent motion for

8

injunctive relief in which it may provide more evidence for an as-applied challenge to the

9
10
11
12

Emergency Directive. The Court finds that full briefing would be appropriate for consideration of
any additional evidence presented by any party.
DATED June 11, 2020.

13

__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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15
16
17
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-10-

APPENDIX B

Case 3:20-cv-00303-RFB-VCF Document 55 Filed 06/19/20 Page 1 of 5

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

CALVARY CHAPEL DAYTON VALLEY,

8
9
10
11
12
13
14
15
16

Plaintiff(s),

Case No. 3:20-cv-00303-RFB-VCF
ORDER

v.
STEVE SISOLAK, in his official capacity as
Governor of Nevada;
AARON FORD, in his official capacity as
Attorney General of Nevada; and
FRANK HUNEWILL, in his official capacity
as Sheriff of Lyon County,
Defendant(s).
Plaintiff Calvary Chapel Dayton Valley moves this Court to stay the effect of its June 11,

17

2020 Order denying Plaintiff’s Emergency Motions for a Temporary Restraining Order and

18

Preliminary Injunction pursuant to Federal Rule of Appellate Procedure 8(a)(1) and Federal Rule

19

of Civil Procedure 62(d). Fed. R. App. P. 8(a)(1); Fed. R. Civ. P. 62(d). Plaintiff has appealed the

20
21
22

Court’s Order, but also requests that the Court reconsider its prior denial of the Motion and issue
an injunction. Ordinarily, “[w]hen a notice of appeal is filed, jurisdiction over the matters being

23

appealed . . . transfers from the district court to the appeals court.” Mayweathers v. Newland, 258

24

F.3d 930, 935 (9th Cir. 2001). Rule 62(d) however, provides an exception that allows parties who

25

wish to stay or otherwise modify the effect of an injunction that is being appealed to move the

26
27
28

district court to stay the effect of the judgment or order pending that appeal. Fed. R. Civ. P. 62(d);
Mayweathers, 258 F.3d at 935.

Case 3:20-cv-00303-RFB-VCF Document 55 Filed 06/19/20 Page 2 of 5

1

The issuance of a stay is “an exercise of discretion” and not a “matter of right.” Nken v.

2

Holder, 556 U.S. 418, 433 – 34 (2009). “The party requesting the stay bears the burden of showing

3
4
5

that the circumstances justify an exercise of that discretion.” Id. at 434. In considering whether to
grant a stay, the Court must consider “(1) whether the stay applicant has made a strong showing

6

that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured

7

absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested

8

in the proceeding; and (4) where the public interest lies.” Id. The first two factors are the most

9
10
11

critical. Id.
The Court first notes that Plaintiff’s motion should actually be construed as a motion for

12

reconsideration. As the Court has not issued an injunction or otherwise ordered any particular

13

action by any party, there is no conduct or action to be ‘stayed.’ And, as an appeal has been filed,

14

it would not be appropriate for the Court to reconsider its order after the filing of the appeal, which

15
16
17

divests this Court of jurisdiction. See City of Los Angeles, Harbor Div. v. Santa Monica
Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (“As long as a district court has jurisdiction over the

18

case, then it possesses the inherent procedural power to reconsider, rescind, or modify an

19

interlocutory order for cause seen by it to be sufficient.”)(internal citations omitted).

20
21
22
23

However, even applying the stay analysis standard, the Court nevertheless denies
Plaintiff’s motion because Plaintiff has not demonstrated a strong showing of a likelihood of
success on the merits of its claims. As the Court determined in its June 11, 2020 Order, Plaintiff

24

has failed to demonstrate that the Emergency Directive with which it takes issue violates Plaintiff’s

25

First Amendment rights. Rather than repeat in detail that reasoning here, the Court simply

26

incorporates by reference its June 11, 2020. Order Dated June 11, 2020, ECF No. 43, 4 – 9.

27
28
-2-

Case 3:20-cv-00303-RFB-VCF Document 55 Filed 06/19/20 Page 3 of 5

1

Moreover, the Court takes judicial notice 1 of recent developments and makes additional

2

findings that further indicate that Plaintiff cannot demonstrate a strong showing of likelihood of

3
4
5

success on the merits. First, much of Plaintiff’s argument has focused on Defendants’ treatment of
casinos, which Plaintiff argues are not subject to the fifty-person cap, in an example of preferential

6

treatment given to secular spaces over religious ones. But, as the Court stated in its prior Order,

7

the regulatory regime to which casinos are subject is much more intrusive and expansive—and

8

subject to sudden modification—than the regulatory regime applied to places of worship. To this

9
10
11

point, just two days ago, on June 17, 2020, the Nevada Gaming Control Board issued Notice #
2020-43, which, among other changes, now requires all patrons of casinos to wear face coverings

12

at table and card games if there is no barrier, partition, or shield between the dealer and each

13

player or other person within six feet of the table. See Updated Health and Safety Policies for

14

Reopening

15
16
17

After

Temporary

Closure,

Nevada

Gaming

Control

Board,

https://gaming.nv.gov/modules/showdocument.aspx?documentid=16837 (last accessed June 18,
2020). This updated regulation will result in a substantial number of patrons at gaming

18

establishments having to wear face coverings while in the common gaming area of such

19

establishments. The Governor did not modify his prior Emergency Directive to require face

20

coverings for individuals who go to places of worship and participate in religious services. Thus,

21
22
23

the Court finds that casinos are now subject to some more severe restrictions on their activities
than are places of worship. Moreover, the Court reiterates the point that the Court made in its prior

24

Order—that “while Calvary focuses on the fifty-person cap, it fails to consider the totality of

25

restrictions placed upon casinos [and other entities] in [its] comparative analysis.” Order Dated

26
27
28

See Fed. R. Evid. 201(b); (d) (court may, at any stage of the proceeding, judicially notice facts not subject
to reasonable dispute if those facts are not subject to reasonable dispute and from sources whose accuracy cannot
reasonably be questioned).
1

-3-

Case 3:20-cv-00303-RFB-VCF Document 55 Filed 06/19/20 Page 4 of 5

1

June 11, 2020, ECF No. 43, at 7. That the Nevada Gaming Control Board suddenly changed its

2

regulations is also another example of the dynamic nature of public health regulations during this

3
4
5
6

time period and the need for the Court to exercise restraint. The Court emphasizes that the
Emergency Directive must be considered in light of the various measures it imposes and all the
various social activities that it covers.

7

The Court also takes judicial notice of the fact that Nevada just yesterday experienced a

8

record-breaking day of increased viral infections. See Mike Brunker, Nevada Adds 410 New

9
10
11

COVID-19

Cases,

Clark

County

More

Than

300,(

June

19,

2020,

8:22

AM)

https://www.reviewjournal.com/news/politics-and-government/clark-county/nevada-adds-410-

12

new-covid-19-cases-clark-county-more-than-300-2056621/ (last accessed June 19, 2020). As the

13

Court previously found and continues to find, Plaintiff’s requested relief would require the Court

14

to engage in potentially daily or weekly decisions about public health measures that have

15
16
17

traditionally been left to state officials and state agencies with expertise in this area. The Plaintiff
asks to the Court to intercede as to one measure, yet this one measure is part of a whole scheme of

18

regulations imposed and monitored by state officials. The Court does not find a basis to do so at

19

this point. See generally, Armstrong v. Davis, 275 F.3d 849, 872 (9th Cir. 2001)(noting that courts

20

should be cautious about imposing injunctive relief that requires the “continuous supervision” of

21
22
23

state officials) abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005).
Additionally, the recent update in the regulations regarding casinos also undercuts

24

Plaintiff’s as-applied challenge. No similar additional regulations have been placed on places of

25

worship. It is difficult to establish a pattern of selective enforcement directed towards places of

26

worship when new, more restrictive measures have been imposed against secular activities and no

27
28

similar restrictions were imposed on religious activities.
-4-

Case 3:20-cv-00303-RFB-VCF Document 55 Filed 06/19/20 Page 5 of 5

1

The Court further does not find that Plaintiff has established irreparable injury if the stay

2

is not granted. Although a constitutional violation is an irreparable injury, Plaintiff has not

3
4
5
6

demonstrated that its constitutional rights have been violated. Furthermore, as the Court already
discussed in its prior Order, Plaintiff has submitted no evidence of enforcement of the ordinance
against it with regard to its as-applied challenge.

7

Finally, the Court finds that the public interest and the harm to the opposing party weigh

8

in favor of allowing the Court’s order to proceed. There is a strong public interest in Defendants

9
10
11

enforcing their regulations regarding the COVID-19 pandemic, and absent a showing that doing
so violates a person’s rights, Defendants should be allowed to proceed unimpeded.

12

For all of the reasons stated,

13

IT IS THEREFORE ORDERED that Plaintiff’s Motion for An Injunction (ECF No. 47)

14

is DENIED.

15
16

DATED: June 19, 2020.

17

__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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-5-

APPENDIX C

Case: 20-16169, 07/02/2020, ID: 11740728, DktEntry: 20, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

JUL 2 2020

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

CALVARY CHAPEL DAYTON VALLEY,
Plaintiff-Appellant,
v.
STEVE SISOLAK, in his official capacity
as Governor of Nevada; et al.,

No.

20-16169

U.S. COURT OF APPEALS

D.C. No.
3:20-cv-00303-RFB-VCF
District of Nevada,
Reno
ORDER

Defendants-Appellees.
Before: THOMAS, Chief Judge, and SCHROEDER, Circuit Judge.
Appellant’s emergency motion for injunctive relief pending appeal (Docket
Entry No. 9) is denied. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see
also South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020).
The previously established briefing schedule remains in effect.

DA/MOATT
APP NO. 19A-1070
--------------------------IN THE SUPREME COURT OF THE UNITED STATES
CALVARY CHAPEL DAYTON VALLEY,
Applicant,
v.
STEVE SISOLAK,
in his official capacity as Governor of Nevada; et al.,
Respondents.
--------------------------To the Honorable Elena Kagan,
Associate Justice of the United States Supreme Court
and Circuit Justice for the Ninth Circuit
--------------------------RESPONDENTS STEVE SISOLAK AND AARON D. FORD’S RESPONSE TO EMERGENCY
APPLICATION FOR AN INJUNCTION AND RESPONDENT FRANK HUNEWILL’S LIMITED
JOINDER THERETO
PENDING APPELLATE REVIEW
AARON D. FORD
ATTORNEY GENERAL
HEIDI PARRY STERN
SOLICITOR GENERAL
CRAIG A. NEWBY
DEPUTY SOLICITOR GENERAL
555 E. WASHINGTON AVE., SUITE 3900
LAS VEGAS, NEVADA 89101
(702) 486-3420
hstern@ag.nv.gov
Counsel for Respondents
Steve Sisolak, Governor of
the State of Nevada
Aaron D. Ford, Attorney General

MARQUIS AURBACH COFFING
CRAIG R. ANDERSON, ESQ.
BRIAN R. HARDY, ESQ.
COUNSEL OF RECORD
KATHLEEN A. WILDE, ESQ.
10001 PARK RUN DRIVE
LAS VEGAS, NEVADA 89145
(702) 382-0711
BHARDY@MACLAW.COM
Counsel for Frank Hunewill,
Sheriff of Lyon County, Nevada

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................................................................... III
STATEMENT OF THE CASE .................................................................. 1
I.

INTRODUCTION .......................................................................... 1

II.

BACKGROUND ............................................................................. 3
A.

THE GLOBAL PANDEMIC ......................................................... 3

B.

NEVADA’S RESPONSE TO THE GLOBAL PANDEMIC .................... 3

C.

DIRECTIVE 021 ....................................................................... 4

D.
III.

1.

Mass Gatherings Generally ........................................... 4

2.

Numerous Other Venues are Limited to No
More than 50 People ...................................................... 5

3.

Nevada Gaming Establishments ................................... 5

4.

Communities of Worship and Faith Based
Organizations ................................................................. 7

PRIOR PROCEEDINGS .............................................................. 8

ARGUMENT .................................................................................. 9
A.

Calvary is Unlikely to Succeed on the Merits
of its Claims ........................................................................ 10
1.

B.

The Exercise of Emergency Police Powers During...... 10

The Directives Do Not Violate the Free Exercise Clause .. 14
1.

This Court and Most Other Courts Have Rejected
Similar Public Health Emergency
i

2.

Free Exercise Challenges............................................. 15
The Directives Do Not Otherwise Violate the First
Amendment .................................................................. 20

C.

The Directives Comply with Rational Basis Review ......... 21

D.

Calvary is Unlikely to Suffer Irreparable
Harm Without ..................................................................... 22

E.

Denying the Injunction Protects Nevadans from
Worsened Risk .................................................................... 23

CONCLUSION ........................................................................................ 24
RESPONDENT FRANK HUNEWILL’S LIMITED JOINDER ............. 25
I.

INTRODUCTION ........................................................................ 25

II.

LEGAL ARGUMENT................................................................... 26

III.

CONCLUSION ............................................................................. 28

CERTIFICATE OF SERVICE................................................................. 29

ii

TABLE OF AUTHORITIES

PAGE

CASES
Antietam Battlefield KOA v. Hogan,
2020 WL 2556496, (D. Md. May 20, 2020) ............................................................... 17
Armstrong v. Davis,
275 F.3d 849, 872 (9th Cir. 2001) .............................................................................. 21
Benisek v. Lamone,
138 S. Ct. 1942, (2018) ……………………………………………………………………….. 28
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682, 694 (2014) ...................................................................................... 14, 21
Calvary Chapel of Bangor v. Mills,
2020 WL 2310913, (D. Me. May 9, 2020) .................................................................. 16
Cassell v. Snyders,
2020 WL 2112374 (N.D. Ill. May 3, 2020) ................................................................ 16
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .............................................................................................. 15, 22
Compagnie Francaise de Navigation a Vapeur v.
Louisiana State Board of Health,
186 U.S. 380, 387 (1902) .......................................................................................... 10
Corona, et al. v. Cegavske, et al.,
Case No. 20 OC 00064 1 B (1st Jud. Dist. Ct. Nev.)................................................. 20
Cross Culture Christian Center et al. v. Newsom,
2020 WL 2121111, at *6 (E.D. Calif. May 5, 2020) .................................................. 16
Elim Romanian Pentecostal Church et al. v. Pritzker,
2020 WL 2517093 (7th Cir. May 16, 2020) ......................................................... 11, 16
Elim Romanian Pentecostal Church et al. v. Pritzker,
2020 WL 3249062 (7th Cir. June 16, 2020) ........................................................ 12, 16
Employment Division v. Smith,
494 U.S. 872 (1990) .................................................................................................... 14

iii

Fishman v. Schaffer,
429 U.S. 1325, 1326, 97 S. Ct. 14, 15, 50 L.Ed.2d (1976) ......................................... 27
Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528, 545 (1985) ............................................................................................ 13
Gibbons v. Ogden,
22 U.S. 1 (1824) .......................................................................................................... 10
Gish v. Newsom,
2020 WL 1979970, at *6 (C.D. Cal. Apr. 23, 2020) .......................................... 16
Helvering v. Gerhardt,
304 U.S. 405, 427, 58 S. Ct. 969, 978 (1938) ............................................................ 27
Hobby Lobby Stores, Inc. v. Sebelius,
568 U.S. 1401, 1403, 133 S. Ct. (2012) ...................................................................... 26
In re Abbott,
954 F.3d 772, 778 (5th Cir. 2020) .............................................................................. 11
Jacobson v. Massachusetts,
197 U.S. 11, 38, 25 S. Ct. 358, 366 (1905) ....................................................... 2, 11, 25
Johnson v. California,
543 U.S. 499 (2005) .................................................................................................... 21
Legacy Church, Inc. v. Kunkel,
2020 WL 1905586 (D.N.M. Apr. 17, 2020) .......................................................... 16
Lighthouse Fellowship Church v. Northam,
2020 WL 2110416, at *8 (E.D. Va. May 1, 2020) ...................................................... 16
Lux v. Rodrigues,
561 U.S. 1306, 1307 (2010) ............................................................................................ 9
Marshall v. United States,
414 U.S. 417, 427 (1974) ...................................................................................... 13, 25
Metromedia, Inc. v. City of San Diego,
453 U.S. 490 (1981) .................................................................................................... 20
Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n,
479 U.S. 1312, 1312, 107 S. Ct. (1986) ...................................................................... 26

iv

Paher, et al. v. Cegavske, et al.,
Case No. 3:20-cv-00243-MMD-WGC ......................................................................... 19
Prince v. Massachusetts,
312 U.S. 158, (1944) ............................................................................................. 11, 22
Respect Maine PAC v. McKee,
562 U.S. 996 (2010)........................................................................................................ 9
Roberts v. Neace,
958 F.3d 409, *5 (6th Cir. 2020) ................................................................................ 17
Rosenberger v. Rector and Visitors of University of Virginia,
515 U.S. 819, 829 (1995) ............................................................................................ 20
S. Bay United Pentecostal Church v. Newsom,
959 F.3d 938, 939 (9th Cir. 2020) ........................................................................ 15, 27
S. Bay United Pentecostal Church, et al. v. Newsom, et al.,
140 S. Ct. 1613 (May 29, 2020) ............................................................................ passim
Spell v. Edwards, __ F.3d __,
2020 WL 3287239 (5th Cir. June 18, 2020) .............................................................. 17
Spell v. Edwards,
2020 WL 2509078 (M.D. La. May 15, 2020) ............................................................. 16
Terminiello v. City of Chicago,
337 U.S. 1, 37, 69 S. Ct. 894, 910 (1949) .................................................................. 27
Turner Broadcasting System, Inc. v. FCC,
507 U.S. 1301, 1303, 113 S. Ct. 1806, 123 L.Ed.2d 642 (1993) ................................ 26
Williams v. Rhodes,
89 S. Ct. 1, 2, 21 L.Ed.2d 69, 70 (1968) ..................................................................... 27
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008) ...................................................................................................... 9
Wisconsin Right to Life, Inc. v. Federal Election Comm'n,
542 U.S. 1305, 1306, 125 S. Ct. 2, 159 L.Ed.2d 805 (2004) ...................................... 26

v

STATUTES
28 U.S.C. § 1651(a) ...................................................................................................... 26
NEV. R. STAT. 463.0129(1)(c) .......................................................................................... 5
NEV. R. STAT. 463.0129(1)(e).......................................................................................... 5
NEV. R. STAT. 463.0129(2) .............................................................................................. 5
NEV. R. STAT. 463.022, 030 ............................................................................................ 6
NEV. R. STAT. 463.140(1) ................................................................................................ 6
NEV. R. STAT. 463.1405(3) .............................................................................................. 6
OTHER AUTHORITIES
Churches Were Eager to Reopen, Now They Are a Major Source of Coronavirus
Cases, The New York Times, (July 8, 2020) .............................................................. 2
http://gov.nv.gov/News/Emergency_Orders/2020/2020-05-28_-_COVID19_Declaration_of_Emergency_Directive_021__Phase_Two_Reopening_Plan_(Attachments)/ (last visited July 14, 2020) ............ 4
http://gov.nv.gov/News/Emergency_Orders/2020/2020-07-10_-_COVID19_Declaration_of_Emergency_Directive_027_(Attachments)/ (last visited July
14, 2020) ..................................................................................................................... 4
http://gov.nv.gov/News/Emergency_Orders/Emergency_Orders/ ........................... 4
https://www.nvsos.gov/sos/Home/Components/News/News/2823/23 (detailing mail
primary plan)............................................................................................................ 19
Supreme Court Practice § 17.13(b), p. 17–38 (11th ed. 2019)............................................ 9
RULES
Fed. R. Evid. 201 .......................................................................................................... 3

vi

STATEMENT OF THE CASE
I.

INTRODUCTION
Nevada, like all other states, has declared a state of emergency to protect lives

from the COVID-19 global pandemic. Nevada, like other states, has been forced to
retrench reopening efforts following increases in cases and positive tests. Nevada
has not yet had to re-close all bars, as Texas did last month. 1 Nevada has not yet
had to re-close all worship services, as California has in many counties. 2 But
Nevada has had to close “[b]ars, pubs, taverns, breweries, distilleries, and wineries
in [counties] with an Elevated Disease Transmission.” 3 This includes Lyon County,
where Applicant is located. 4
To minimize the risk of transmitting COVID-19, social distancing
requirements for larger gatherings—where people congregate together and interact
for an extended period of time—must be different than requirements for individual
engagement in commerce. The best currently available data indicates that COVID19 is most effectively spread through interpersonal interaction with an infected
person (or worse, multiple persons), particularly over an extended period of time.
Sadly, the types of communal, interpersonal gatherings that put Nevada citizens
most at risk for spreading the virus include larger, in-person religious services—
See https://www.dshs.state.tx.us/coronavirus/opentexas.aspx (last visited
July 14, 2020).
2
See https://covid19.ca.gov/roadmap-counties/ (last visited July 14, 2020).
3
See http://gov.nv.gov/News/Emergency_Orders/2020/2020-07-10_-_COVID19_Declaration_of_Emergency_Directive_027_(Attachments)/ (last visited July 14,
2020).
4
See Nevada’s Elevated Disease Transmission Tracker (July 10, 2020),
attached hereto as Respondents’ Exhibit 1.
1

1

which are a major source of COVID-19 infections. 5 Nevada’s actions to limit all such
gatherings, not just religious gatherings, initially “flattened the curve,” allowing it
to begin efforts to reopen slowly to avoid further harm to its citizens. As COVID-19
scientific knowledge evolves, Nevada’s response will likewise evolve.
Applicant Calvary Chapel Dayton Valley (“Applicant” or “Calvary”) seeks an
emergency injunction pending appeal on the mistaken premise that Nevada’s
emergency directives (specifically Directive 021) treat houses of worship differently
than comparable mass gatherings. This is not true. Consistent with Jacobson v.
Massachusetts, 197 U.S. 11 (1905), as recently reaffirmed by this Court in South Bay
United Pentecostal Church, et al. v. Newsom, et al., 140 S. Ct. 1613 (May 29, 2020),
Nevada has been attempting to determine “when restrictions on particular social
activities should be lifted during the pandemic.” South Bay, 140 S. Ct. at 1613. As
recognized by this Court, it “is a dynamic and fact-intensive matter subject to
reasonable disagreement.” Id. “That is especially true where, as here, a party seeks
emergency relief in an interlocutory posture, while local officials are actively
shaping their response to changing facts on the ground.” Id. at 1614. “The notion
that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional
seems quite improbable.” Id.
Here, Calvary’s emergency application seeks the identical “emergency relief
in an interlocutory posture” that this Court previously rejected in South Bay.
See Kate Conger et al., Churches Were Eager to Reopen, Now They Are a
Major Source of Coronavirus Cases, The New York Times, (July 8, 2020),
https://www.nytimes.com/2020/07/08/us/coronavirus-churchesoutbreaks.html?action=click&module=Top%20Stories&pgtype=Homepage.
5

2

Nevada’s requirements and restrictions on public gathering are issued with an eye
toward reducing risk to its citizens during an evolving public health emergency.
Calvary’s disagreement with Nevada’s decisions on reopening, even if subject to
reasonable dispute, does not entitle it to the stay it seeks.
Given the evolving nature of the COVID-19 crisis, and Nevada’s ongoing
response to it, the emergency application should be denied.
II.

BACKGROUND
A.

The Global Pandemic

The World Health Organization (“WHO”) declared COVID-19 to be a
pandemic on March 11, 2020. The WHO “called . . . for countries to take urgent and
aggressive action ….” Id. The President declared an emergency on March 13, 2020.
Upon information and belief, each state has declared an emergency as a result of
COVID-19.
COVID-19 has infected more than three million people in the United States.
Nearly one hundred thirty-six thousand Americans have died of COVID-19. Id.
There is no vaccine. All of us are aware of the COVID-19 global pandemic and the
significant loss of life and business it has caused our country.
B.

Nevada’s Response to the Global Pandemic

Consistent with the recommendations of health experts, Nevada Governor
Sisolak declared a state of emergency on March 12, 2020. 6 Subsequently, Governor

Respondents request that the Court take judicial notice of Nevada’s
emergency declaration and subsequent directives pursuant to Fed. R. Evid. 201.
6

3

Sisolak issued emergency directives to mitigate COVID-19 spread, followed by
efforts to slowly reopen Nevada after initial success. Based on recent increases
in COVID-19 cases and deaths, Nevada has revisited these directives, including
re-closing “[b]ars, pubs, taverns, breweries, distilleries, and wineries in [counties]
with an Elevated Disease Transmission.” 7 This includes Lyon County, where
Applicant is located. 8
Whether Nevada will have to step back further from its attempted reopening,
as other states have had to in recent days, remains unclear but is certainly possible.
C.

Directive 021

Calvary challenges Directive 021, issued on May 28, 2020, which began
Phase 2 of Nevada’s reopening. 9 Generally speaking, it treats religious
organizations better or the same as other mass social gatherings that are most
similar to it in how people congregate together and communicate.
1.

Mass Gatherings Generally

Section 10 of Directive 021 addresses mass gatherings generally. It increases
the limit for mass gatherings from 10 people to up to 50 people.

s alleged by

These documents are located on the Nevada Governor’s website at
http://gov.nv.gov/News/Emergency_Orders/Emergency_Orders/.
7 See http://gov.nv.gov/News/Emergency_Orders/2020/2020-07-10_-_COVID19_Declaration_of_Emergency_Directive_027_(Attachments)/ (last visited July 14,
2020).
8 See Nevada’s Elevated Disease Transmission Tracker (July 10, 2020),
attached hereto as Respondents’ Exhibit 1. This belies Applicant’s argument that
the danger associated with COVID-19 is small in Lyon County. App. at 5, 18.
9 See http://gov.nv.gov/News/Emergency_Orders/2020/2020-05-28_-_COVID19_Declaration_of_Emergency_Directive_021__Phase_Two_Reopening_Plan_(Attachments)/ (last visited July 14, 2020).
4

Calvary, religious organizations are being treated the same or better than mass
gatherings of the general public.
2.

Numerous Other Venues are Limited to No More than 50
People

Directive 021 imposes limits to the lesser of 50% occupancy or 50 people on
numerous activities and venues within Nevada. These include:


Movie theatres; (see id. at § 20)



Museums, art galleries, zoos, and aquariums; (see id. at § 30) and



Trade schools and technical schools. Id. at § 32.

Further, Directive 021 maintains stricter limits on live entertainment and
concerts, prohibiting spectators entirely. Directive 021 at § 22 (emphasis added).
In short, multiple mass gatherings are treated the same as or worse than
houses of worship.
3.

Nevada Gaming Establishments

In totality, and specifically for health and safety purposes, gaming
establishments in Nevada already faced numerous additional restrictions not faced
by houses of worship to qualify for greater occupancy. Gaming in Nevada is subject
to regular, ongoing restrictions and enforcement in a manner more extensive than
any religious gathering or ordinary business. 10 Partial reopening for gaming entities

The right to hold a non-restricted gaming license is a privilege. NEV. R.
STAT. 463.0129(2). Nevada imposes “strict regulation” of persons “related to the
operation of licensed gaming establishments....” NEV. R. STAT. 463.0129(1)(c). All
places where gaming is conducted are to be “assisted to protect the public health,
safety, morals, good order and general welfare of the inhabitants of the State…”
NEV. R. STAT. 463.0129(1)(e).
10

5

under Nevada’s COVID-19 restrictions thus added additional restrictions to those
already in place. 11
To reopen, non-restricted gaming licensees were required to submit detailed
reopening plans for review and approval by the Nevada Gaming Control Board,
including comprehensive trainings for their employees, the provision of masks for
all guests, and designated locations for taking COVID-19 tests and awaiting
results. 12 “Nevada Gaming Control Board Agents may be present to observe some or
all of these procedures.” 13 Most importantly, the Nevada Gaming Commission has
full authority to enforce the required reopening plans and related health
requirements with its existing enforcement personnel. See Directive 021 at § 35.
More recently, in response to the COVID-19 crisis, the Nevada Gaming
Control

Board

issued

Notice

2020–43,

requiring

all

patrons

of

gaming

establishments to wear face coverings at table and card games if there is no other

Nevada’s legislature created the Gaming Commission and the Gaming
Control Board (“GCB”). NEV. R. STAT. 463.022, 030. The Commission and the GCB
are to administer the Nevada Gaming Control Act to protect the public interest
consistent with Nevada policy. NEV. R. STAT. 463.140(1). The GCB has “full and
absolute power” to recommend to the Commission that a finding of suitability be
revoked. NEV. R. STAT. 463.1405(3). This Commission “has full and absolute power
and authority” to revoke a finding of suitability. NEV. R. STAT. 463.1405(4). This
“full and absolute power and authority” includes “pursuing disciplinary action to
limit, condition, suspend, and/or revoke a license, and/or impose a monetary fine
against a licensee in accordance with the Gaming Control Act” for violation of
Directive 021. See Directive 021 at § 35.
12 See ECF No. 39-1, a courtesy copy of which is attached hereto as
Respondents’ Exhibit 2.
13 See ECF No. 39-2, a courtesy copy of which is attached hereto as
Respondents’ Exhibit 3.
11

6

barrier. 14 Further, bars within gaming establishments that do not serve food have
been closed and those that do serve food have had all service at bar tops closed. 15
4.

Communities of Worship and Faith Based Organizations

Consideration of the directives Calvary contests makes sense only within the
above context. Section 11 of Directive 021 addresses communities of worship and
faith-based organizations. Identical to mass gatherings generally and with equal
treatment as to numerous other gatherings, indoor services are limited to a
maximum of fifty people, subject to social distancing requirements. Id. Section 10 of
Directive 016 places no limits on the number of congregants who may gather for
outdoor religious services, subject to proper social distancing. This exception was
not extended to movie theaters, museums, art galleries, zoos, aquariums, trade
schools, and technical schools.
Plain comparison of the Directive 021 provisions highlights the same
treatment for similar gathering types, premised on their relatively higher risk of
COVID-19 transmission. It is rational and warranted as Nevada continues to seek
safety. Complaints that mass gatherings must be treated the same as every aspect
of commerce, which involve different lengths and types of person-to-person contact,
have been rejected by numerous courts through the United States, including this
Court, and must be rejected again here.

See https://gaming.nv.gov/modules/showdocument.aspx?documentid=16837
(last accessed July 14, 2020).
15
See http://gov.nv.gov/News/Emergency_Orders/2020/2020-07-10_-_COVID19_Declaration_of_Emergency_Directive_027_(Attachments)/ (last visited July 14,
2020).
14

7

D.

Prior Proceedings

Following full briefing and argument, the district court denied Calvary’s
emergency motion for a temporary restraining order and preliminary injunction,
holding that the emergency directives are “neutral and generally applicable.”
Appendix A at 5. Specifically, in response to Calvary’s focus on Nevada gaming
establishments, the court found that “casinos are subject to much greater
restrictions on their operations and oversight of their entire operations than places
of worship,” including social distancing, employee training, regular and explicit
inspection, and specific enforcement and punishment alternatives for violating the
Emergency Directive. Id. at 6–7.
Under such circumstances, where “other secular entities and activities
similar in nature to church services have been subject to similar or more restrictive
limitations on their operations,” the “Court cannot find that the Emergency
Directive is an implicit or explicit attempt to specifically target places of worship.”
Id. at 7.
Further, the district court rejected Calvary’s as-applied challenge. First, the
Court rejected Calvary’s argument that outdoor protest activity pertaining to
George Floyd’s killing was similar to gatherings for places of worship. Id. at 8.
Second, the district court found that there was no evidence of a pattern of
selective enforcement against house of worship of the Emergency Directive.
Appendix A at 8–9.

8

In a subsequent order, the Court noted the “need for the Court to exercise
restraint” during a health crisis, declining Calvary’s invitation to “engage in
potentially daily or weekly decisions about public health measures that have
traditionally been left to state officials and state agencies with expertise in this
area.” Appendix B at 4. Finally, the Court recognized that there “is a strong public
interest in Defendants enforcing their regulations regarding the COVID-19
pandemic.” Id. at 5.
Rather than proceed with expedited briefing on its appeal, Calvary filed its
emergency application with the Ninth Circuit. Following full briefing by the parties,
the Ninth Circuit denied the emergency application, allowing Calvary to proceed
with its opening brief on July 13, 2020. Appendix C. This emergency application
followed.
III.

ARGUMENT
A request for injunctive relief from this Court in the first instance “’demands a

significantly higher justification’ than a request for a stay, because unlike a stay, an
injunction ‘does not simply suspend judicial alteration of the status quo but grants
judicial intervention that has been withheld by lower courts.’” Respect Maine PAC v.
McKee, 562 U.S. 996 (2010). The “legal rights at issue” must be “indisputably clear.” Lux
v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J. in chambers). “A preliminary
injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008). Calvary must also show that it is “likely to
suffer irreparable harm in the absence of preliminary relief,” that the balance of equities

9

tips in [its] favor,” id. at 20, and that the Court is likely to grant certiorari and reverse
after the completion of lower-court proceedings. Shapiro et al., Supreme Court Practice §
17.13(b), p. 17–38 (11th ed. 2019). Calvary fails to satisfy these extraordinary standards
given the existence of a continuing global pandemic, during which states like Nevada are
responsible for making evolving public safety decisions against a novel coronavirus
Calvary cannot obtain this extraordinary remedy because it is unlikely to succeed
on the merits. Calvary cannot demonstrate irreparable harm, as nothing prevents it
from offering additional in-person services on a temporary basis, or offering drive-in
and virtual services to accommodate all congregants during the ongoing pandemic.
In addition, the balance of equities and the public interest during these
unprecedented times weigh heavily against injunctive relief, as Nevada attempts to
battle an extended, and extremely fluid, public-health emergency. Temporarily
narrowing restrictions on the size of mass gatherings, including for religious
services, protects the health and well-being of Nevada citizens during a global
pandemic.
A.

Calvary is Unlikely to Succeed on the Merits of its Claims
1.

The Exercise of Emergency Police Powers During
a Public Health Crisis Warrants Additional Deference
by This Court

Nevada’s power to regulate public health and safety, including the greater
power of quarantine, predate the Constitution. See Gibbons v. Ogden, 22 U.S. 1
(1824) (recognizing reservation of public health authority to States); Compagnie

10

Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380,
387 (1902) (upholding Louisiana’s quarantine power).
This Court long ago established a framework governing the emergency
exercise of state authority during a public health crisis. Jacobson v. Massachusetts,
197 U.S. 11, 27 (1905). Facing a compulsory vaccination law enacted during the
smallpox epidemic, the Court held that when a state exercises emergency police
powers to enact an emergency public health measure, courts will uphold it unless
(1) there is no real or substantial relation to public health, or (2) the measures are
“beyond all question” a “plain palpable violation of rights secured by the
fundamental law.” Id. at 30. This recognizes that “a community has the right to
protect itself against an epidemic of disease which threatens the safety of its
members.” Id. at 28. As the Court explained, “[t]he possession and enjoyment of all
rights are subject to such reasonable conditions as may be deemed by the governing
authority of the country essential to the safety, health, peace, good order, and
morals of the community.” Id. at 26–27. The Court further held that during public
health crises, “it is no part of the function of a court …to determine which of two
modes was likely to be the most effective for the protection of the public against
disease.” Jacobson, 197 U.S. at 30.
Courts have consistently applied Jacobson to public health emergencies. See,
e.g., Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (applying Jacobson
framework stating the “[r]ight to practice religion freely does not include the liberty
to expose the community. . . to communicable diseases”). Courts have similarly done

11

so during this pandemic. See, e.g., In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020)
(applying Jacobson framework to constitutional challenge of Texas Governor’s
COVID-19 executive order); Elim Romanian Pentecostal Church et al. v. Pritzker,
Case No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020) (denying injunction
pending appeal); Elim Romanian Pentecostal Church et al. v. Pritzker, Case No. 201811, 2020 WL 3249062 (7th Cir. June 16, 2020) (affirming district court denial of
injunction).
After the Ninth Circuit denied an earlier request for an emergency injunction
pending appeal in this case, this Court denied a California church’s emergency
motion for injunction pending appeal, reaffirming Jacobson’s applicability.
See South Bay United Pentecostal Church, et al. v. Newsom, et al., 140 S. Ct. 1613
(May 29, 2020). First, this Court noted the difference between mass gatherings and
commercial activities. Specifically, the Court stated that California’s restrictions
“apply to comparable secular gatherings, including lectures, concerts, movie
showings, spectator sports, and theatrical performances, where large groups of
people gather in close proximity for extended periods of time.” Id. The Court further
noted that California’s restrictions are more lenient for dissimilar activities, “in
which people neither congregate in large groups nor remain in close proximity for
extended periods.” Id.
Next, the Court reaffirmed Jacobson and the discretion of state officials such
as Respondents to make emergency public health determinations. Specifically, the
Court noted that “[o]ur Constitution principally entrusts ‘[t]he safety and the health

12

of the people’ to the politically accountable officials of the States ‘to guard and
protect.’” Id. (quoting Jacobson, 197 U.S. at 38). Further, the Court held that when
“those officials ‘undertake [ ] to act in areas fraught with medical and scientific
uncertainties,’ their latitude ‘must be especially broad.’” South Bay, 140 S. Ct. at
1613 (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)). Finally,
“[w]here those broad limits are not exceeded, they should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background,
competence, and expertise to assess public health and is not accountable to the
people.’” Id. (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 545 (1985)).
Under Jacobson, as reaffirmed by South Bay, Calvary cannot prevail. First,
Calvary cannot establish that Nevada’s emergency declaration and related
directives have no real or substantial relation to public health, given the undisputed
facts associated with COVID-19 and social distancing. Moreover, as set forth above,
mass gatherings are different than commercial activities. Nevada’s emergency
declaration and subsequent directives have addressed this public health risk.
Similar to California’s order at issue in South Bay, comparable secular gatherings
are subject to similar or more severe restrictions than places of worship, while
dissimilar commerce activities where people neither congregate in large groups nor
remain in close proximity for extended periods are treated more leniently.
Second, Calvary cannot establish that the emergency declaration and related
directives are “beyond all question” a “plain palpable violation of rights secured by

13

the fundamental law.” As this Court stated in Prince v. Massachusetts, the “[r]ight
to practice religion freely does not include the liberty to expose the community. . . to
communicable diseases.” 321 U.S. at 166–67.
Respondents submit that Nevada’s actions comply with the Constitution,
even if this was an ordinary exercise of the State’s police power, versus the
emergency currently faced by us. Calvary’s claims will be addressed under those
standards below.
B.

The Directives Do Not Violate the Free Exercise Clause

Under traditional analysis of the Free Exercise Clause, “neutral, generally
applicable laws” are subject to rational basis review, even where they are applied to
religious practices. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694 (2014);
see also Employment Division v. Smith, 494 U.S. 872 (1990). In short, if the Orders
do not target religion, “the First Amendment has not been offended.” Employment
Division, 494 U.S. at 878. Because the Directives at issue in this case are neutral
laws of general applicability, rationally based on the State’s goals of mitigating the
spread and contraction of COVID-19, similar to what this Court determined to
“appear consistent with the Free Exercise Clause of the First Amendment,”
Calvary’s claims fail.
Here, Nevada has temporary emergency restrictions on comparable secular
gatherings, each implemented prior to South Bay. Public attendance is prohibited
for all musical performances, live entertainment, concerts, competitions, sporting
events, and any events with live performances. Directive 021 at § 22. In short,

14

religious services are being treated better than “lectures, concerts, … spectator
sports, and theatrical performances.” “Movie showings,” the last comparable
gathering identified by the Supreme Court, are limited to no more than 50 people,
no better than religious services. Id. at § 20. Similar restrictions to the lesser of 50
people or 50% occupancy exist for museums, art galleries, zoos, aquariums, trade
schools, and technical schools to the lesser of 50 people or 50% occupancy. Id. at §§
30, 32. Good cause exists for the distinction: mass gatherings have a higher risk of
COVID-19 transmission than general commerce.
1.

This Court and Most Other Courts Have Rejected Similar
Public Health Emergency Free Exercise Challenges

Specifically, this Court upheld this analysis in South Bay United Pentecostal
Church, et al. v. Newsom, et al., 140 S. Ct. 1613 at *1 (May 29, 2020). Prior to this
Court’s affirmance, the Ninth Circuit upheld the denial of a request for injunctive
relief pending appeal tied to holding any in-person religious services pursuant to
the State of California and County of San Diego’s stay-at-home orders. South Bay
United Pentecostal Church, et al. v. Newsom, et al., 959 F.3d 938, 939 (9th Cir.
2020). There, the Ninth Circuit held that “[w]here state action does not infringe
upon or restrict practices because of their religious motivation and does not “in a
selective manner impose burdens only on conduct motivated by religious belief, it
does not violate the First Amendment. Id. at *1 (internal quotations to Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
omitted)(emphasis added).

15

Similarly, the Seventh Circuit denied a request for injunction pending appeal
premised on a free-exercise claim against Illinois’ emergency orders, recognizing
that the temporary numerical restrictions applied “also to the most comparable
types of secular gatherings, such as concerts, lectures, theatrical performances, or
choir practices, in which groups of people gather together for extended periods,
especially where speech and singing feature prominently and raise risks of
transmitting the COVID-19 virus.” Elim Romanian Pentecostal Church et al. v.
Pritzker, Case No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020). The Seventh
Circuit further observed that “[w]orship services do not seem comparable to secular
activities permitted under the Executive Order, such as shopping, in which people
do not congregate or remain for extended periods.” Id. Ultimately, the Seventh
Circuit upheld the lower court’s ruling denying injunctive relief. Elim Romanian
Pentecostal Church et al. v. Pritzker, Case No. 20-1811, 2020 WL 3249062 (7th Cir.
June 16, 2020). There, Judge Easterbrook, as author for the unanimous opinion,
recognized that it “would be foolish to pretend that worship services are exactly like
any of the possible comparisons, but they seem most like other congregate functions
that occur in auditoriums, such as concerts and movies.” Id. at *5. The court further
recognized that it does “not evaluate orders issued in response to public-health
emergencies by the standard that might be appropriate for years-long notice-andcomment rulemaking,” citing Jacobson. 16 Id.

Other district courts have resolved Free Exercise challenges the same way.
See, e.g.,; Legacy Church, Inc. v. Kunkel, Case No. Civ. 20-0327 JB/SCY, 2020
WL 1905586 (D.N.M. Apr. 17, 2020); Gish v. Newsom, Case No. EDCV-2016

16

Here, Calvary’s reliance on Roberts v. Neace, 958 F.3d 409, *5 (6th Cir. 2020)
is misplaced. There, prior to this Court’s guidance in South Bay, the Sixth Circuit
actually stated that the “straightforward remedy” for addressing the in-person
religious services risk was to “limit the number of people who can attend a service
at one time.” 958 F.3d 409, *5 (6th Cir. 2020). 17 Consistent with White House
guidance, this is precisely what Nevada has done for all mass gatherings, including
house of worship.
In short, this Court should rely on its prior decision to reject Calvary’s
emergency motion for an injunction pending appeal.
2.

Calvary’s Efforts to Characterize Secular Activities as
Identical to Religious Services is Insufficient for
Obtaining Emergency Injunctive Relief

Instead of acknowledging these comparable secular activities and the
governing consensus, Calvary speculates that other activities it deems comparable
are treated better than houses of worship. App. at 13–18. With the exception of
casinos and mass protests, none were addressed with record evidence before the

755JGB (KKx), 2020 WL 1979970, at *6 (C.D. Cal. Apr. 23, 2020); Lighthouse
Fellowship Church v. Northam, Case No. 2:20cv204, 2020 WL 2110416, at *8 (E.D.
Va. May 1, 2020); Cassell v. Snyders, Case No. 20 C 50153, 2020 WL 2112374 (N.D.
Ill. May 3, 2020); Cross Culture Christian Center et al. v. Newsom, Case No. 2:20-cv00832-JAM-CKD, 2020 WL 2121111, at *6 (E.D. Calif. May 5, 2020); Calvary
Chapel of Bangor v. Mills, Case No. 1:20-cv-00156-NT, 2020 WL 2310913, at *8 (D.
Me. May 9, 2020); Spell v. Edwards, 2020 WL 2509078 (M.D. La. May 15, 2020);
Antietam Battlefield KOA v. Hogan, No. CV CCB-20-1130, 2020 WL 2556496, at *7–
9 (D. Md. May 20, 2020).
17
Similarly, Calvary’s reliance on a non-binding concurrence in Spell v.
Edwards, __ F.3d __, Case No. 20-30358, 2020 WL 3287239 (5th Cir. June 18, 2020)
is misplaced, as the challenged Louisiana regulation had expired, making the
request for injunctive relief moot.
17

district court. Instead, Calvary breezily offers its opinion as to restaurants,
amusement and theme parks, and gyms and fitness facilities, substituting its
judgment for that of the Nevada public health officials who are responsible for
addressing the COVID-19 pandemic. 18

Id. Jacobson’s central holding is that

emergency public health decisions are left by the Constitution to a State’s elected
officials, who are most accountable for their decisions to their affected citizens.
Further, as noted above, gaming establishments face numerous additional
restrictions and regulatory oversight not faced by houses of worship, making them
dissimilar activities. Failure for gaming establishments to follow the Emergency
Directive risks significant punishment. 19 There is no comparable basis on which
non-compliance can effectively be enforced against a house of worship. Instead,
houses of worship and other entities impacted by Directive 021 are subject to
enforcement by local law enforcement, subject to their prioritization of resources.
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. This policy determination warrants deference from a court, as
“[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to
the politically accountable officials of the States ‘to guard and protect.’” South Bay,
Nevada’s Chief Medical Officer disagrees with the asserted opinions of
Calvary’s purported expert pertaining to COVID-19 risks associated with religious
services. See ECF No. 39-4, a courtesy copy of which is attached hereto as
Respondents’ Exhibit 4.
19 It would be inappropriate for Respondents to speculate as to the
enforcement actions the Gaming Control Board and the Gaming Commission may
undertake following investigation into alleged Directive violations identified by
Calvary.
18

18

140 S. Ct. at 1613 (quoting Jacobson, 197 U.S. at 38). Under these temporary
circumstances, Nevada is entitled to deference on its regulated, limited reopening of
gaming establishments.
Finally, Calvary takes issue with Respondents’ approach to protests arising
from the George Floyd killing. Those protests, however, are factually distinct from
indoor religious worship services. Without dispute, these protests have raised
serious discussions pertaining to policing and race. In this context, Calvary argues
that Respondents’ inability to prevent protests or to force local law enforcement to
arrest all who violated Directive 021 implies that Respondents are favoring
protestors over houses of worship. As noted by the district court, “[o]utdoor protests
involve dynamic large interactions where state officials must also consider the
public safety implications of enforcement of social distancing.” Appendix A at 8.
Respondents, as elected leaders, are attempting to address important
community issues while also calming a volatile situation. 20 As noted by the Lyon
County Sheriff, local law enforcement has the right to prioritize preserving public
safety. Making efforts to maintain a safe community is not a restriction on the
content of anyone’s expression. In short, the purported refusal to arrest protestors
does not constitute a violation of Calvary’s First Amendment rights. 21

As a preliminary matter, there is no record evidence that the Governor
violated Directive 021. The pictures associated with the article cited by Calvary in
its Application do not clearly show more or less than 50 attendees at the protest and
the article makes no reference to the size of the protest. See Application at 8 n. 5.
21 Finally, Calvary’s contentions pertaining to Nevada’s primary election
ignore Nevada’s significant efforts to reduce in-person voting in light of COVID-19,
including the cooperative effort by the Secretary of State and each county
20

19

C.

The Directives Do Not Otherwise Violate the First Amendment

Calvary contends that “Nevada privileges commercial speech over noncommercial religious speech[,]” but fails to explain the “commercial speech” Nevada
privileged in a public place. App. at 17. Nevada reiterates that it has imposed
similar or greater restrictions on secular mass gatherings, including movie theatres,
museums, and all spectator events. No preference has been provided for commercial
speech versus religious speech in public areas. In short, Nevada is not “regulating
speech when the specific motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction.” Rosenberger v. Rector and Visitors of
University of Virginia, 515 U.S. 819, 829 (1995). The record contains no evidence of
selective enforcement against religious services, as the district court correctly found.
Appendix A. at 9–10.
Further, there is no evidence before this Court or the lower courts that this
directive has been enforced against Calvary or any other religious institution. None.
Calvary’s reliance on Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981),
which pertained to viewpoint discrimination by a municipality against certain
messages for public billboards, is misplaced. Nevada’s directives do not regulate
Calvary’s speech in the public forum on a viewpoint basis. Nothing stops Calvary or
clerk
to
mail
ballots
to
each
active
registered
voter.
See
https://www.nvsos.gov/sos/Home/Components/News/News/2823/23 (detailing mail
primary plan). The Secretary of State’s mail election efforts withstood multiple
court challenges. See Paher, et al. v. Cegavske, et al., Case No. 3:20-cv-00243-MMDWGC at ECF No. 57 (denying first motion for temporary restraining order) and ECF
No. 83 (denying second motion for temporary restraining order); Corona, et al. v.
Cegavske, et al., Case No. 20 OC 00064 1 B (1st Jud. Dist. Ct. Nev.).

20

protesters from expressing their views within the public square. Instead, Nevada’s
directives regulate mass gatherings, which carry higher risks for COVID-19
transmission.
Calvary’s argument must be denied.
D.

The Directives Comply with Rational Basis Review

Because the orders are neutral and generally applicable, Calvary has to show
that they are unsupported by a rational basis to prevail. See Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 694 (2014). Given the State’s rational interest in
limiting the spread of COVID-19, Calvary is unable to make such a showing.
Calvary’s analysis as to why the emergency directives do not constitute the
“least restrictive means” of furthering any compelling interest highlights why
Jacobson and South Bay provide state officials with added discretion when
exercising emergency police powers.

Even under ordinary instructions, out of

federalism concerns, courts ensure that injunctions are “not overly intrusive and
unworkable ... [and] would [not] require for its enforcement the continuous
supervision by the federal court over the conduct of [state officers].” Armstrong v.
Davis, 275 F.3d 849, 872 (9th Cir. 2001), abrogated on other grounds by Johnson v.
California, 543 U.S. 499 (2005). Here, Calvary would have this Court substitute its
judgment on public health pertaining to a novel coronavirus for that of Nevada’s
officials responsible for public health. As circumstances change with this pandemic,
Calvary proposes having this court arbitrate each effort by Nevada and other states
to mitigate the risks associated with COVID-19. At this uncertain moment, where

21

the Constitution reserves public emergency powers to states like Nevada, 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.
Here, Directive 021 was developed in response to an emergency situation,
unlike the ordinance at issue in Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 543 (1993). Directive 021 does not “pursue the
[State]’s governmental interests only against conduct motivated by religious belief.”
Id. at 545. It was not “gerrymandered with care to proscribe religious” gatherings.
Id. at 521.
Directive 021 is neutral and generally applicable. It is facially neutral and
does not “target” religious establishments. Again, “[t]he right to practice religion
freely does not include liberty to expose the community … to communicable
disease…ill health or death.” Prince v. Massachusetts, 312 U.S. 158, 166–67 (1944).
For these reasons, Calvary is unlikely to succeed on the merits of its Free Exercise
claim.
E.

Calvary is Unlikely to Suffer Irreparable Harm Without
an Injunction

Calvary was already allowed to conduct in-person church services for up to 50
people a service, while continuing virtual or drive-up services. Simply doubling the
number of existing church services would allow Calvary to conduct in-person church
services for its entire congregation. Particularly where these mass gathering

22

requirements are generally applicable, there is no factual basis for concluding that
Calvary has or will suffer irreparable harm while it prosecutes its appeal.
Calvary’s presumption that it should be treated the same as a business
operating in commerce ignores the difference between commerce and mass
gatherings for purposes of COVID-19 risk. This Court and others have recognized
these differences. The Governor has an obligation to protect Nevadans’ health and
well-being, based on an assessment of risk. Consistent with White House guidelines
for mass gatherings, the Governor has implemented directives to slowly reopen
Nevada in an effort to ensure the curve stays flat. Nevada would suffer irreparable
harm should an emergency injunction be granted.
F.

Denying the Injunction Protects Nevadans from Worsened Risk
Of COVID-19

Calvary must also demonstrate that the granting of its Application is in the
public interest. It is not.
Here, Calvary presumes it should be treated the same as a business, ignoring
the particular risks associated with religious services.

This Court has rejected

ignoring these differences. In contrast, the Governor has an obligation to protect
Nevadans’ health and well-being, based on the risk during what one hopes is a oncea-century pandemic. Consistent with White House guidelines for mass gatherings,
the Governor has implemented directives to slowly reopen Nevada to ensure the
curve stays flat and that there is not a need to completely revert back to earlier
phases that required further sacrifices from all Nevadans to remain safe.

23

Under such circumstances, the public interest and the harms to Nevada weigh
against awarding Calvary emergency injunctive relief pending review of its appeal.
IV. CONCLUSION
This Court should deny the emergency application for preliminary injunction
pending appeal.
Respectfully submitted.
/s/ Heidi Parry Stern
HEIDI PARRY STERN
Solicitor General
CRAIG A. NEWBY
Deputy Solicitor General
555 E. WASHINGTON AVE., SUITE 3900
LAS VEGAS, NEVADA 89101
(702) 486-3420
hstern@ag.nv.gov
Counsel for Respondents
Steve Sisolak, Governor of the
State of Nevada
Aaron D. Ford, Attorney General

24

RESPONDENT FRANK HUNEWILL’S LIMITED JOINDER
I.

INTRODUCTION
The “question of when restrictions on particular social activities should be

lifted during the pandemic is a dynamic and fact-intensive matter subject to
reasonable disagreement.” See S. Bay United Pentecostal Church, et al. v. Newsom,
et al. Case No. 19A1044, 2020 WL 2813056 at *2 (Supreme Court of the United
States, May 29, 2020) (Roberts, C.J., concurring). However, it is well-established
that the Constitution principally entrusts the health and safety of communities to
the elected officials who are most accountable to the people and most knowledgeable
about the specific needs of their communities. See, e.g., id.; Marshall v. United
States, 414 U.S. 417, 427, 94 S. Ct. 700, 706 (1974); Jacobson v. Massachusetts, 197
U.S. 11, 38, 25 S. Ct. 358, 366 (1905).
Here, Frank Hunewill, the Sheriff for Lyon County, Nevada (the “Sheriff”),
firmly believes that individual counties and their elected officials should be afforded
discretion and wide latitude in addressing the novel coronavirus known as COVID19. After all, the population, demographics, and very way of life in Lyon County is
markedly different from other counties in Nevada - such as Clark County and
Washoe County. As statistics confirm, the spread and impact of COVID-19 has also
been different in rural Lyon County as compared to Nevada’s larger more populous
counties.
Based upon his direct knowledge of the situation in Lyon County, the Sheriff
has not used his limited law enforcement resources to monitor church attendance

25

and/or parishioners’ adherence to social distancing. Rather, the Sherriff is
optimistic that his fellow Lyon County residents will reasonably adhere to CDC
guidelines and continue their efforts to help keep the community safe and healthy.
Because the Sheriff is focused on protecting and serving the citizens of Lyon
County, he takes no position regarding the propriety of state-wide COVID-19
measures, including Governor Sisolak’s Directive 21. The Sheriff does, however,
oppose Calvary Chapel Dayton Valley’s Emergency Motion for an Injunction
Pending Appeal to the extent such relief could limit his or any other Lyon County
officials’ ability to address the evolving COVID-19 situation and the unique needs of
the businesses and residents in Lyon County.

II.

LEGAL ARGUMENT
The Justices of this Court use their authority to issue an injunction

“sparingly.” See Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S. 1401, 1403, 133 S.
Ct. 641, 642 (2012) (Sotomayor, J., in chambers) (citing 28 U.S.C. § 1651(a) and
Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1303, 113 S. Ct. 1806, 123
L.Ed.2d 642 (1993) (Rehnquist, C. J., in chambers)); see also Ohio Citizens for
Responsible Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312, 1312, 107 S.
Ct. 682, 683(1986) (Scalia, J., in chambers). Accordingly, injunctive relief issues
only in critical, exigent circumstances, when “the legal rights at issue are
indisputably clear.” Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 542
U.S. 1305, 1306, 125 S. Ct. 2, 159 L.Ed.2d 805 (2004) (Rehnquist, C.J., in chambers)
(internal quotation marks omitted); see also Fishman v. Schaffer, 429 U.S. 1325,

26

1326, 97 S. Ct. 14, 15, 50 L.Ed.2d 56 (1976) (Marshall, J., in chambers); Williams v.
Rhodes, 89 S. Ct. 1, 2, 21 L.Ed.2d 69, 70 (1968) (Stewart, J., in chambers).
In this case, Calvary’s arguments regarding Governor Sisolak’s Directive 021
are inapplicable to the Sheriff because he has not used his resources to monitor
whether houses of worship are complying with the Directive. The Sheriff also does
not plan to micromanage religious institutions that are wholly capable of making
sound decisions for the health and safety of their parishioners.
That being said, the Sheriff believes that local governments need discretion
in addressing the evolving COVID-19 situation. As Justice Jackson aptly stated, “a
little practical wisdom” is needed in such uncertain times, lest the Constitution and
Bill of Rights become “a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37,
69 S. Ct. 894, 910 (1949) (Jackson, J., dissenting) (cited with favor in S. Bay United
Pentecostal Church v. Newsom, 959 F.3d 938, 939 (9th Cir. 2020)). Indeed, while
the Sheriff firmly believes in the importance of free speech, assembly, and the right
to worship, Lyon County and the Sheriff should also be able to enforce nondiscriminatory, neutral measures if necessary, to protect the community.
Thus, to the extent Calvary Chapel seeks injunctive relief that would limit
the Sheriff’s ability to enforce county-specific measures that may become necessary
at a future date, the emergency motion for an injunction pending appeal should be
denied.

See, e.g., Helvering v. Gerhardt, 304 U.S. 405, 427, 58 S. Ct. 969, 978

(1938) (“The genius of our government provides that, within the sphere of
constitutional action, the people-acting not through the courts but through their

27

elected legislative representatives-have the power to determine as conditions
demand, what services and functions the public welfare requires.”
III.

CONCLUSION
A preliminary injunction “does not follow as a matter of course from a

plaintiff’s showing of a likelihood of success on the merits.” Benisek v. Lamone, 138
S. Ct. 1942, 1943-44 (2018). Instead, injunctive relief remains “an extraordinary
remedy that the Court may deny “[a]s a matter of equitable discretion.” Id. at 1943.
For the reasons stated above, this Court should be cautious to distinguish the
State of Nevada Respondents from the Sheriff. And, given the deference owed to
those local officials who are answerable directly to the people in their community,
this Court should deny any injunctive relief that would impose any requirement or
limit the Sheriff in his ability to address the specific needs of Lyon County during
the evolving COVID-19 situation.
Respectfully submitted.
MARQUIS AURBACH COFFING
/s/ Brian R. Hardy, Esq.
CRAIG R. ANDERSON, ESQ.
BRIAN R. HARDY, ESQ.
KATHLEEN A. WILDE, ESQ.
10001 PARK RUN DRIVE
LAS VEGAS, NEVADA 89145
(702) 382-0711
bhardy@maclaw.com
Counsel for Frank Hunewill,
Sheriff of Lyon County, Nevada

28

JESSICA L. ADAIR

AARON D. FORD

Chief of Staff

Attorney General

RACHEL J. ANDERSON

KYLE E.N. GEORGE

General Counsel

First Assistant Attorney General

STATE OF NEVADA

CHRISTINE JONES BRADY
Second Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

HEIDI PARRY STERN
Solicitor General

100 North Carson Street
Carson City, Nevada 89701

CERTIFICATE OF COMPLIANCE
19A-1070
CALVARY CHAPEL DAYTON VALLEY
Applicant,
v.
STEVE SISOLAK,
Respondent.
As required by the Supreme Court Rule 33.1(h), I certify that
the Brief in Opposition contains 6,816 words, excluding the parts of
the Brief that are exempted by Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing it true
and correct.
Executed on July 15, 2020
/s/ Heidi Parry Stern
Heidi Parry Stern
Nevada Solicitor General

Telephone: 775-684-1100 ● Fax: 775-684-1108 ● Web: ag.nv.gov ● E-mail: aginfo@ag.nv.gov
Twitter: @NevadaAG ● Facebook: /NVAttorneyGeneral ● YouTube: /NevadaAG

Exhibit 1

Exhibit 1

COVID positive case rates amongst state and federal prison inmates and staff are also included in the disease transmission data;
Testing data may help explain or provide context for interpreting the elevated disease transmission data.

1. Average number of tests per day (per 100,000) < 150. The average number of cases resulted during the previous week in a county,
divided by the number of people living in the county. This number is then multiplied by 100,000 to control for varying populations in
counties.
2. Case rate (per 100,000) >100. The total number of cases diagnosed and reported over a 14-day period divided by the number of people
living in the county. This number is then multiplied by 100,000 to control for varying populations in counties.
3. Case rate (per 100,000) >25 AND testing positivity >7.0%. The total number of positive polymerase chain reaction (PCR) tests divided by
the total number of PCR tests conducted. This number is then multiplied by 100 to get a percentage. Due to reporting delay (which
may be different between positive and negative tests), there is a 7-day lag.

A county is flagged for elevated disease transmission if it meets two of the three criteria:

The 14-day case rate and 7-day testing positivity rate are used to assess the level of COVID-19 burden in a county. For each measure, the higher
the number, the more a county is impacted by COVID-19. However, it is important to look at this data in the context of average number of tests
per day, as well as who is being tested. In general, higher number of tests per day indicates more widespread testing for COVID-19 beyond
individuals who have symptoms. This means that more individuals who either do not have COVID-19 or have COVID-19 but are asymptomatic
will be tested. As a result, as the number of tests per day increases, the case rate may increase (due to the identification of asymptomatic cases)
and the testing positivity rate may decrease (due to more testing among individuals who do not have COVID-19).

Elevated Disease Transmission




When reviewing the data, a few assumptions should be noted, such as:

Understanding the Data Being Monitored

Nevada’s counties are diverse in so many ways and have been impacted by COVID differently. In order to ensure that each county is assessed for
elevated disease transmission, the Nevada Health Response Team, a collaboration between the Governor’s Office, Department of Health and
Human Services, and the Division of Emergency Management, has created a county tracker. This tracker will be updated regularly to monitor
progress.

Background

Nevada’s County COVID-19 Elevated Disease Transmission Tracker

<150
Average # of test per
day per 100,000
199.3
175.6
297.7
53.5
208.9
220.0
72.7
118.1
159.6
27.5
79.8
178.5
77.5
90.3
16.0
200.7
1775.9

County

Carson City
Churchill
Clark
Douglas
Elko
Esmeralda
Eureka
Humboldt
Lander
Lincoln
Lyon
Mineral
Nye
Pershing
Storey
Washoe
White Pine

Threshold

Tracker Results as of 7/9/20

95.5
61.8
336.4
40.2
160.0
0.0
0.0
46.9
100.1
0.0
55.2
21.9
204.6
57.5
0.0
193.2
28.3

Elevated Disease Transmission

15%
2%
10%
6%
11%
0%
0%
22%
21%
0%
13%
0%
18%
0%
0%
8%
1%

Case Rate > 100 per 100,000 OR Case Rate > 25 and
Positivity > 7%
Case Rate per 100,000 Test Positivity (7 day average, with
(last 14 days)
7 day lag)

# of Criteria Met
1
0
2
1
2
0
1
2
2
1
2
0
3
1
1
2
0

Nevada’s County COVID-19 Elevated Disease Transmission Tracker

Exhibit 2

Exhibit 2

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 1 of 8

EXHIBIT D
Health and Safety Policies
for Resumption of Gaming
Operations – Nonrestricted
Licensees (May 27, 2020)

EXHIBIT D

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 2 of 8

HEALTH AND SAFETY POLICIES FOR RESUMPTION OF GAMING OPERATIONS
NONRESTRICTED LICENSEES

INTRODUCTION
On March 12, 2020, Governor Steve Sisolak issued the Declaration of Emergency for COVID19 pursuant to the emergency powers conferred upon the Governor of Nevada by chapter 414
of NRS. Pursuant to his Declaration of Emergency, Governor Sisolak issued Emergency
Directive 002 on March 18, 2020, which suspended all gaming operations for 30 days. The
expiration of Emergency Directive 002 was subsequently extended to April 30, 2020 by
Emergency Directive 010. Pursuant to Governor Sisolak’s “Nevada United: Roadmap to
Recovery” plan, gaming operations will not resume in the beginning stage of recovery, and it will
be incumbent upon the Board to ensure the safe reopening of gaming operations in this State.
The purpose of these policies and procedures (Policy) is to notify Nevada’s nonrestricted
gaming licensees of new operational requirements to mitigate and reduce the risk of exposure
to COVID-19 for all employees, patrons, and other guests. This Policy constitutes the minimum
requirements to be followed, and does not preclude a gaming licensee from implementing its
own additional requirements.
NRS 463.0129(1)(d) requires that all establishments where gaming is conducted and where
gaming devices are operated be controlled and assisted to protect the public health and safety
of Nevada’s residents. The Nevada Gaming Control Board (Board) and Nevada Gaming
Commission remain resolute in ensuring that gaming operations in this State do not
compromise the health and safety of Nevadans.
In consultation with the Office of the Governor, as well as federal, state, and local health
officials, the Board has created this Policy to diminish personal contact and increase the level of
disinfection in high-use areas, and expects full compliance with this Policy by its nonrestricted
licensees. COVID-19 research is continuously developing. In the event of a conflict between any
provision set forth in this Policy and any policy or requirement of a federal, state, or local health
authority, the requirements set forth by those health authorities shall control.
The Board issued Industry Notice #2020-25 on May 1, 2020. On May 7, the Nevada Gaming
Commission ratified this Policy and confirmed the Board’s ongoing responsibility to issue health
and safety policies for the gaming industry. On May 27, the Governor directed the Board to
promulgate requirements for a phased and incremental resumption of gaming operations, and
confirmed that the failure of a gaming licensee to comply with any such requirements shall be
considered injurious to the public health, safety, morals, good order, and general welfare of the
inhabitants of the State, and constitute a failure to comply with the Governor’s Emergency
Directives.

1

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 3 of 8

CREATION AND IMPLEMENTATION OF COVID-19 MITIGATION PLAN
Using this Policy as a guide, each nonrestricted licensee must create and implement a plan to
mitigate the spread of COVID-19 and infectious diseases (“Plan”). All Plans shall be submitted
to Ops@gcb.nv.gov at least seven (7) days before reopening occurs. Plans required pursuant to
this Policy should be regularly and continuously reviewed and executed to ensure the health
and safety of licensees’ guests and employees. The Board will provide updates to this Policy as
circumstances surrounding this health crisis evolve.
To comply with this Policy, the Board recognizes that certain statutory provisions, including,
without limitation, those set forth in NRS 463.1605 and 463.01865, contain certain requirements
imposed upon resort hotels licensed by the Commission after July 1, 1992. Pursuant to section
13 of the Governor's Declaration of Emergency Directive 016, the Board is required to
implement a phased and incremental resumption of gaming operations. Accordingly,
nonrestricted licensees subject to the requirements related to resort hotels may choose to delay
full compliance with certain of those criteria when executing their Plans required pursuant to this
Policy. A nonrestricted licensee that intends to delay full compliance with the resort hotel
requirements must include full details thereof in their Plan. The Board will not consider delayed
compliance with certain resort hotel criteria a violation of the Gaming Control Act, so long as a
licensee’s Plan fully complies with this Policy. The Board will revisit this exercise of prosecutorial
and regulatory discretion as the Governor's office and the Board continue to track the effects of
COVID-19 on the State of Nevada.
PROCEDURES PRIOR TO RESUMING GAMING OPERATIONS
Prior to reopening, each nonrestricted licensee shall clean and disinfect all of its hard and soft
surfaces in accordance with the guidelines published by the Centers for Disease Control and
Prevention (CDC) for Cleaning and Disinfecting Your Facility.
Each licensee must ensure its employees are adequately trained on: (1) the proper cleaning
and disinfecting procedures set forth in the CDC’s guidance above; and (2) how to prevent the
spread of infectious disease, including, without limitation, social distancing, handwashing, and
not spreading germs at work. Plans should ensure that any training provided pursuant to this
Policy is documented by the licensee.
HEALTH AND SAFETY PROCEDURES ONCE OPERATIONAL
When implementing their plans, licensees should utilize the Interim Guidance for Businesses
and Employers to Plan and Respond to COVID-19, published by the CDC. The Board expects
licensees to include the following components in its Plans.

2

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 4 of 8

Employee and Patron Health Concerns:
Signage should be posted throughout the property reminding employees and patrons of proper
hygiene, including, without limitation, proper handwashing, how to cover coughs and sneezes,
and to avoid touching their faces.
Employees should be instructed to stay home if they do not feel well, and to contact a
supervisor or manager if they notice a co-worker or patron experiencing symptoms associated
with COVID-19, such as coughing, shortness of breath, or other flu-like symptoms.
If a licensee is informed or is alerted to a case of COVID-19 at its property, it must communicate
the case to and cooperate with its local health authorities. All employees should receive clear
instructions on how to properly and efficiently respond to all presumed cases of COVID-19.
Licensees must follow the appropriate steps to conduct additional cleaning and disinfecting
protocols of all areas that patrons visited during their stay in accordance with guidelines issued
by the licensee’s local health authority.
Plans should identify personnel or a department on property to serve as a liaison to assist local
health authorities with aggregate data sharing and contract tracing.

Employee Training and Responsibilities:
Proper and frequent handwashing with soap is vital to help combat the spread of COVID-19. All
employees should be required and consistently reminded to wash their hands with soap and
warm water for 20 seconds, before the start of a shift, at least once during every break period,
and several times during their shifts, including, without limitation, when they change gloves or
otherwise contaminate their hands.
Appropriate personal protective equipment (PPE) may be required or recommended by federal,
state, or local authorities. When required or recommended, licensees must ensure that PPE is
available to employees and provide training on how to properly use and dispose of all PPE.
Plans must include a provision outlining training on COVID-19 safety and disinfection protocols
for all employees. Additional comprehensive training must be provided for employees who work
in areas with frequent patron contact, including, without limitation, housekeeping, food and
beverage, internal maintenance, hotel operations, casino operations, and security. Training,
whether conducted in person, online, by video, or in writing, should be available in English and
Spanish.

3

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 5 of 8

Availability of Face Coverings for Patrons and Guests:
Plans must provide for the availability of face masks or cloth face coverings for patrons and
guests upon request. Licensees should encourage patrons and guests to wear face masks or
cloth face coverings while in public places on the licensee’s property.

Gaming Machines:
Plans must ensure that the floor plan for gaming machines creates proper social distancing
between patrons. For example, chairs and stools in front of every other gaming machines could
be removed so that patrons do not sit next to each another, or licensees could propose other
measures to ensure proper distance between patrons. Additionally, licensees should assign
employees to focus on ensuring guests do not congregate in groups.
Plans must address how gaming machines, devices, chairs, and other ancillary equipment will
be cleaned and disinfected on a regular basis. Plans should also address the availability of hand
sanitizer or disinfectant wipes for patron use on the gaming floor.
Table Games and Card Games:
Plans must limit the number of patrons based on type of game to ensure proper distance
between players by limiting the number of seats or betting positions per table, or licensees may
submit alternative plans for approval by the Board. For example, player limit per table should be
limited to: three players per blackjack table, six players per craps table, four players per roulette
table, and four players per poker table. Casino supervisors and managers must ensure that
patrons do not congregate in groups around gaming tables. Licensees should ensure dealers
have hand sanitizer available to offer to patrons throughout their shifts.
Plans should ensure regular cleaning and disinfection of, without limitation, table games, rails,
dice, card shoes, shufflers, roulette wheels, Pai Gow tiles, pit podiums, blackjack discard
holders, and toke boxes on a regular basis and when a new employee comes into contact with
any of the aforementioned gaming equipment. Plans should also address how licensees will
disinfect cards and chips.
Race & Sportsbooks, Keno Lounges, and Bingo Halls:
Plans must ensure that patrons do not congregate in groups and practice proper distancing in
these areas. Plans must address how the race & sportsbook, keno lounge, bingo hall, and any
other gaming area will be cleaned and disinfected on a regular basis. Plans should also address
the availability of hand sanitizer or disinfectant wipes for patron use in these areas.
Responsible Gaming:
Plans must include the licensee’s commitment to and implementation of responsible gaming
measures. Licensees are encouraged to enhance their responsible gaming measures,
4

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 6 of 8

including, without limitation, providing enhanced training to employees and creating specialized
messaging for patrons.
Occupancy Limits:
In order to achieve the social distancing guidelines issued by federal, state, and local health
authorities, Plans must limit a property’s occupancy to no more than fifty percent (50%) of the
occupancy limit assigned to each gaming area of the property by local building and fire codes.
Licensees’ Plans should detail how compliance with this occupancy limit reduction will be
achieved, which may include, without limitation, head counts by security personnel, utilization of
a licensee’s existing surveillance systems, and making use of a licensee’s slot accounting
system to aid in monitoring the number of patrons on the casino floor.
Social Distancing Guidelines:
The Board expects all licensees to comply with any and all health and safety guidelines and
directives issued by federal, state, and local governing authorities with respect to the operation
of hotels, restaurants, retail establishments, and pools.
Guest Queuing. Any area where patrons queue should have appropriate signage requiring
social distancing in accordance with federal, state, and local health authority requirements.
Hotel Front Desk, Business Center, and Concierge. Social distancing protocols should be
maintained among employees and patrons, consistent with federal, state, and local
requirements.
Restaurants and Bars. All restaurants and bars should have reduced seating in accordance with
federal, state, and local guidance to allow for appropriate distancing between each table and
between patrons.
Meeting and Convention Spaces. Meeting and banquet arrangements should allow for social
distancing among attendees during all meetings and events based on federal, state, and local
recommendations. Food service for meetings and conventions should be served by personnel
and managed in accordance with federal, state, and local requirements. The size of gatherings
are further subject to restrictions set forth by a directive from the Office of the Governor or a
local health authority.
Nightclubs and Dayclubs. Nightclubs and dayclubs within a licensee’s property must be closed
until further notice.
Retail Spaces. Patron occupancy limits and social distancing protocols should be consistent
with federal, state, and local requirements and will be enforced at licensee-owned and leased
retail spaces.

5

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 7 of 8

Pools. Pool seating should be configured in a manner consistent with federal, state, and local
requirements to allow for appropriate distancing.
Back of House. Social distancing protocols, as provided by state and local health authorities,
must be implemented in employee dining rooms, employee entrances, uniform control rooms,
employee restrooms, loading docks, offices, kitchens, security scanning podiums, employee
relations service desks, and training classrooms.
Cleaning & Disinfection Guidelines Generally:
The Board expects all licensees to comply with any and all health and safety guidelines and
directives issued by federal, state, and local governing authorities with respect to the operation
of hotels, restaurants, retail establishments, and pools.
Plans should ensure that all public areas will be cleaned and disinfected on a continual and
regular basis in accordance with federal, state, and local guidelines for hotel operations.
Licensees should increase the frequency of cleaning and disinfecting high-contact surfaces,
including, without limitation, front desk check-in counters, bell desks, elevators and elevator
buttons, door handles, public bathrooms, room keys and locks, ATMs, redemption terminals,
rewards club kiosks, escalator and stair handrails, casino cage counters, gaming machines,
gaming tables, gym equipment, dining surfaces, and restaurant menus. Additionally, all
restrooms should be cleaned and disinfected on a regular basis.
Cleaning & Disinfection for Hotel Rooms and Operations:
Licensees should ensure that housekeeping staff receives comprehensive training on COVID19 safety and disinfection protocols. Additionally, licensees should provide employees access
to required PPE, cleaning products, and sanitizer. Any carts, trolleys, or mobile equipment
utilized by or to transport employees should be disinfected on a consistent basis.
Plans should utilize cleaning products that meet Environmental Protection Agency (EPA)
guidelines and are approved for use and effective against viruses, bacteria, and other airborne
and bloodborne pathogens. A list of disinfectants approved by the EPA for use against COVID19 can be found here. All disinfectants should be used in accordance with their labels to ensure
proper application, contact time, and user safety.
Plans should acknowledge the use of cleaning and disinfecting protocols to clean guest rooms
approved by the CDC and Occupational Safety and Health Administration (OSHA). Licensees
should ensure that increased attention is paid to high-touch items, including, without limitation,
remote controls, toilets and handles, door and furniture handles, water faucet handles,
nightstands, telephones, in-room control panels, light switches, temperature control panels, and
flooring. Linens should be washed at a high temperature and with appropriate cleaning products
in order to eliminate viral and bacterial pathogens.

6

Case 3:20-cv-00303-RFB-VCF Document 39-1 Filed 06/07/20 Page 8 of 8

Back of House. The frequency of cleaning and disinfecting will also increase in high traffic back
of house areas with an emphasis on the employee dining rooms, employee entrances, uniform
control rooms, employee restrooms, loading docks, offices, kitchens, security scanning
podiums, employee relations service desks, and training classrooms.
Plans should ensure that any tools and equipment shared by employees will be disinfected
before, during, and after each shift, or anytime the equipment is transferred to a different
employee. This includes, without limitation, phones, radios, computers, other communication
devices, payment terminals, engineering tools, safety buttons, folios, cleaning equipment, keys,
time clocks, and all other direct contact items used by employees throughout the licensee’s
property.
COVID-19 Room Recovery Protocol. Plans must include a cleaning procedure in the event of
notice or knowledge of a hotel guest with a confirmed case of COVID-19. The hotel guest’s
room must be removed from service and undergo an enhanced cleaning protocol as determined
by local health authorities. The licensee is prohibited from returning that hotel room to service
until the licensee has complied with the requirements set forth in NRS 447.100, as well as with
any additional guidance from local health authorities.
Additional Requirements for Resort Hotels:
If a licensee is a resort hotel pursuant to the definition in NRS 463.01865, the licensee’s Plan
must confirm that it will, at a minimum: (1) conduct temperature screenings of hotel guests upon
arrival; or (2) ensure that there is a medical professional on property at all times and require
hotel guests to complete a symptom self-assessment upon check-in.
A licensee that is a resort hotel must also provide a designated area within the resort where
hotel guests may be tested for COVID-19, and where such hotel guests can safely wait for the
test results.
Cleaning & Sanitation for Restaurants, Bars, and Lounges:
Plans should ensure that all dining tables, bar tops, stools, and chairs are disinfected after each
use. All host podiums, service stations, service carts, beverage stations, counters, handrails,
and trays should be disinfected on a regular basis. All point of sale terminals should be
disinfected between uses and after each shift.
Employees who handle food should comply with state and local health district guidelines.
CONCLUSION
This Policy is subject to revision by the Board based on recommendations from federal, state,
and local health authorities related to the spread of COVID-19. The Board will keep
nonrestricted licensees apprised of any changes so that Plans can be updated.
7

Exhibit 3

Exhibit 3

Case 3:20-cv-00303-RFB-VCF Document 39-2 Filed 06/07/20 Page 1 of 7

EXHIBIT E
Policy Memorandum –
Procedures for
Reopening after
Temporary Closure
due to COVID-19 (Apr.
21, 2020)

EXHIBIT E

Case 3:20-cv-00303-RFB-VCF Document 39-2 Filed 06/07/20 Page 2 of 7
NEVADA GAMING CONTROL BOARD
1919 College Parkway, P.O. Box 8003, Carson City, Nevada 89702
555 E. Washington Avenue, Suite 2600, Las Vegas, Nevada 89101
3650 S. Pointe Circle, Suite 203, P.O. Box 31109, Laughlin, Nevada 89028
557 W. Silver Street, Suite 207, Elko, Nevada 89801
9790 Gateway Drive, Suite 100, Reno, Nevada 89521
750 Pilot Road, Suite I, Las Vegas, Nevada 89119

STEVE SISOLAK
Governor

April 21, 2020

SANDRA D. MORGAN, Chairwoman
TERRY JOHNSON, Member
PHIL KATSAROS, Member

Las Vegas
(702) 486-2000
Fax: (702) 486-2045

POLICY MEMORANDUM
Procedures for Reopening after Temporary Closure Due to COVID-19
To assist licensees with reopening after the mandated COVID-19 temporary closures, the
Board has compiled a list of procedures that should, at a minimum, be considered and
addressed. These procedures are not intended to be all encompassing. Other steps may
be necessary and should be determined on an individual basis, and in consultation with
the Board, as necessary.
A Reopening Plan must be established and emailed to the Audit
(LVRisk@gcb.nv.gov or RNRisk@gcb.nv.gov) if the affected property is a
licensee, or to the Tax and License Division (TLCompliance@gcb.nv.gov) if a
licensee.
An additional copy should be emailed to the Enforcement
(Ops@gcb.nv.gov).

Division
Group I
Group II
Division

Note that the reopening plan is not intended to serve as a vehicle for requesting required
approvals or waivers, unless otherwise specified in the policy memorandum. Separate
letters should be sent to the appropriate Board divisions for waiver requests.
The plan must be submitted at least seven (7) days before reopening occurs or as soon
as reasonably possible thereafter. Additionally, all procedures performed during the
reopening process must be in compliance with the Minimum Internal Control Standards
(Group I licensees), the Internal Control Procedures (Group II licensees) or any Board
approved variations of these standards/procedures that were active at the time of closure
or were approved subsequent to the closure.
Reopening Plans must address the following items for each property, as applicable:
1. Contact information of person coordinating the reopening activity (i.e., name, title,
phone number, e-mail address, and if available, mobile phone number that can
be used to reach contact person during activities).
2. Notification of the reopening date and time. Additionally, identification of the
gaming, entertainment and club venue areas that will be reopened and, if
applicable, which will not. If the opening of various gaming/entertainment/club

Case 3:20-cv-00303-RFB-VCF Document 39-2 Filed 06/07/20 Page 3 of 7
Policy Memorandum - Reopening Procedures
Page 2

venue areas are to be phased in, then the anticipated reopening dates/times for
each area must be specified. Any changes made to a licensee’s gaming day
must also be specified.
3. A schedule for the replenishment of funds, including cash, chips and tokens, in all
areas of casino accountability (e.g., hoppers, booths, cage, kiosks, fill cabinets,
vaults, table games trays, etc.), along with an indication of the responsible
department(s).
4. Licensees must ensure that the Audit Division (Group I licensees) and the Tax and
License Division (Group II licensees) have been provided with the most current
count and drop times required by NGC Regulation 6.130(1)(a).
5. There were certain quarterly and semi-annual filings that were due to be submitted
to the Board during the time of the mandated closure, including those required by
NGC Regulations 3.100(2), 5.050, 6.130(1)(b) and 8.130(1), respectively. The
deadlines for these filings are administratively approved to extend to no later than
30 days after the Governor authorizes the reopening of gaming operations within
the state.
The Tax and License Division should be contacted regarding any questions that
are specifically related to filing tax and fee returns/forms.
6. Procedures and verifications must be performed to ensure that all liabilities to
patrons are correctly accounted for and reconciled from the time of the temporary
closure to the time of reopening, including but not limited to incremental
progressive amounts, safekeeping/front money/wagering account balances,
player tracking point balances, race and sports futures/unpaids, payout receipts
and wagering vouchers, etc.
7. As payout receipts and wagering vouchers may have expired during the temporary
closure, licensees must take measures to pay these liabilities or extend the
expiration dates for such liabilities to accommodate the period the property was
closed. Consequently, the redemption period requirements of Regulations
6.110(11) and 6.110(12)(b) are administratively approved to be extended to 30
days after the Governor authorizes reopening of gaming operations. Furthermore,
the revenue reporting requirements of Regulations 6.110(11) and 6.110(12)(b)(1)
are also extended to 30 days after the Governor authorizes reopening of gaming
operations. Additionally, the reporting requirement of Regulation 6.110(12)(b)(2) is
extended to the quarter following the quarter the Governor authorizes reopening
on gaming operations. Regardless of whether a licensee chooses to use these
waivers or chooses to comply with the requirements of the regulations, the
applicable tax forms that reflect monthly and/or quarterly payout receipt and
wagering voucher activity must continue to be submitted.
Licensees must also ensure that other payments owed to patrons (e.g., winning
sports tickets, etc.) are paid when submitted for payment. Any expiration dates

Case 3:20-cv-00303-RFB-VCF Document 39-2 Filed 06/07/20 Page 4 of 7
Policy Memorandum - Reopening Procedures
Page 3

that such liabilities have, either through regulatory requirement (e.g., NGC
Regulation 22.080(3)) or through a licensee’s internal policy advised to patrons,
must be extended to include the time period the property was closed.
8. The “cash on hand” bankroll requirement of NGC Regulation 6.150, as calculated
using the Board’s prescribed bankroll formula, is waived for a period of 7 days after
the Governor authorizes the reopening of gaming operations. However, licensees
who reopen are still expected to comply with the “next business day” funds
requirement during this 7 day period. The Audit and Tax and License Divisions,
as applicable, should be contacted for any questions regarding this administrative
waiver.
9. An indication must be given as to whether the administrative waivers that were
granted in the Board’s March 17, 2020 Procedures for Casino Closures and
Changeovers Policy Memorandum will be used. These waivers provided licensees
with an additional 30 days for filing audited or reviewed financial statements (NGC
Regulation 6.080) and the CPA /Internal Audit reports (NGC Regulation 6.090 (9)
and (15)). If a request for extension is required beyond the 30 days, contact the
Audit Division for information related to additional administrative extensions.
Due to COVID-19, the financial statements and the CPA/Internal Audit reports that
are due during the first six months of 2020 are to be submitted to the Audit Division
(NComprpts@gcb.nv.gov for Northern Nevada and Scomprpts@dcb.nv.gov for
Southern Nevada). No hard copy filings will be required.
10. For the disposition of any progressive amounts pursuant to NGC Regulations
5.110(5)(c)(4) and 5.112(6)(d)(4), the disposition time requirements of NGC
Regulations 5.110 and 5.112 do not begin until the Governor authorizes the
reopening of gaming operations.
11. Amendments to the Internal Control System, if applicable, must be submitted
within 30 days after reopening.
12. Upon reopening, licensees with a reserve requirement under NGC Regulation
5.225 or 22.040 must ensure that the maintained reserve complies with the
requirements of these regulations or is in compliance with any active waivers that
were previously approved by the Board. If an increase to the reserve is necessary,
then the Audit Division must be provided with the original reserve agreement for
the increase within 20 days of reopening. Any questions regarding these reserves
should be directed to the Audit Division.
13. As the Minimum Internal Control Standards (Group I licensees) and Internal
Control Procedures (Group II licensees) require licensees to perform certain
monthly, quarterly and semi-annual procedures, it is possible that due to the
mandated closure, licensees may have been unable to perform certain accounting,
internal audit and CPA required procedures. If the temporary closure impeded a
licensee’s ability to perform certain required procedures, violations will not be cited.

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Policy Memorandum - Reopening Procedures
Page 4

Instead, those procedures will be administratively waived. Contact the Audit
Division or the Tax and License Division, as applicable, if additional clarification is
needed.
Licensees and club venue operators must be in full compliance with all applicable
Surveillance Standards and the surveillance system and camera coverage
should be checked by licensees to ensure proper functioning prior to the
commencement of live gaming. Additionally, the DVR system used for
surveillance should be tested to ensure:






Full screen review
Data with time and date superimposed
30 images per second
Media player has necessary software to view images
Watermark verification software

14. Upon reopening, licensees and club venue operators will be responsible for
reviewing the list of expired gaming employee registrations for their
property. Employees whose gaming registrations have expired during the closure
may work for up to 30 days while they renew their registrations. The Enforcement
Division will not take any regulatory action against licensees for expired gaming
registrations, as long as all applicable renewal applications are submitted via the
Board’s online registration system within 30 days of the reopening date. This
exemption is only for renewal applications. New registration applications must be
submitted prior to commencing work in a gaming position.
If you have already terminated laid off or furloughed employees in the Board’s
system, and they subsequently return to work at your location at the time of
reopening, the Board will offer a one-time option to administratively reinstate those
employees at your location in our system. Please communicate any affected
employees to the Enforcement Division at rgarcia@gcb.nv.gov. Employees must
have been previously registered at your location, separated from service due to the
COVID-19 closures, and must be reinstated within 60 days of your date of
reopening. If you communicate the list of affected employees to the Board, you will
not need to perform any transactions in the online registration system. The Board
will reactivate those employees at your location, and they will show on your
registered employee list in the online registration system the following day.
15. Verify that all new and modified gaming devices and associated equipment installed
between the period of closure and reopening have been approved in accordance
with NGC Regulation 14 prior to making the new or modified gaming device or
associated equipment available to the public. Unapproved new or modified gaming
devices and associated equipment must not be made available to the public.

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Policy Memorandum - Reopening Procedures
Page 5

16. For Club Venues:
 Club venues under the Board’s authority will be allowed to reopen in
compliance with any directive or guidance issued by the Governor’s office and
state and local health officials.
 Any registered club venue employee whose registration expired during the
temporary closure will be allowed to work for up to 30 days after resumption
of operations while they renew their application. This does not apply to new
registrations.
 If you have already terminated laid off or furloughed employees in the Board’s
system, and they subsequently return to work at your location at the time of
reopening, the Board will offer a one-time option to administratively reinstate
those employees at your location in our system. Please communicate any
affected
employees
to
the
Enforcement
Division
at
rgarcia@gcb.nv.gov. Employees must have been previously registered at
your location, separated from service due to the COVID-19 closures, and
must be reinstated within 60 days of your date of reopening. If you
communicate the list of affected employees to the Board, you will not need to
perform any transactions in the online registration system. The Board will
reactivate those employees at your location, and they will show on your
registered employee list in the online registration system the following day.
Licensees should conduct due diligence on recently terminated employees
whose registrations have not expired.
 Surveillance inspections will not be necessary prior to reopening as long as
the camera configurations have not changed and compliance with item #14
is met.
 If any changes were made to policies and procedures during the temporary
closure, please forward the revised version to ops@gcb.nv.gov.
17. Licensees should verify with all other state and local government entities to ensure
compliance with their specific reopening requirements. Additionally, licensees
must comply with all prescribed local, state and federal COVID-19 health
requirements. Further direction and requirements on these matters may be issued
by the GCB as the situation evolves.
18. Any additional information not addressed in #1 - #18 above that a licensee
considers relevant should also be included in the Reopening Plan that is submitted
pursuant to this Policy Memorandum.

Case 3:20-cv-00303-RFB-VCF Document 39-2 Filed 06/07/20 Page 7 of 7
Policy Memorandum - Reopening Procedures
Page 6

Nevada Gaming Control Board Agents may be present to observe some or all of these
procedures. The Board will coordinate Agent involvement with licensees, if Agent
observation is to occur. Any questions regarding reopening procedures may be directed
to the Board's Audit, Enforcement, Tax and License or Technology Divisions, as
applicable.
Sincerely,

Terry Johnson, Esq.
Board Member
TJ/KC
cc:

Sandra Douglass Morgan, Esq., Chairwoman
Phil Katsaros, Board Member

Exhibit 4

Exhibit 4

Case 3:20-cv-00303-RFB-VCF Document 39-4 Filed 06/07/20 Page 1 of 6

EXHIBIT G
Declaration of Ihsan
Azzam, Ph.D, M.D., Chief
Medical Officer for Nevada

EXHIBIT G

Case 3:20-cv-00303-RFB-VCF Document 39-4 Filed 06/07/20 Page 2 of 6
1

7

AARON D. FORD
Attorney General
CRAIG A. NEWBY (Bar No. 8591)
Deputy Solicitor General
State of Nevada
Office of the Attorney General
100 North Carson Street
Carson City, Nevada 89701-4717
(775) 684-1100 (phone)
(775) 684-1108 (fax)
Email: CNewby@ag.nv.gov

8

Attorneys for State Defendants

2
3
4
5
6

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11

CALVARY CHAPEL DAYTON VALLEY
Plaintiff,

12
13
14
15

vs.
STEVE SISOLAK, in his official capacity
as Governor of Nevada, et al.,

Case No. 3:20-cv-00303-RFB-VCF
DECLARATION OF IHSAN AZZAM,
PH.D, M.D., M.P.H., CHIEF MEDICAL
OFFICER FOR THE STATE OF
NEVADA, IN SUPPORT OF STATE
DEFENDANTS’ RESPONSE TO
PLAINTIFF’S SUPPLEMENT

Defendants.

16
17
18
19

I, IHSAN AZZAM, PhD, M.D., M.P.H., declare as follows:
1.

I am over the age of 18 and a United States citizen. I know the following facts

20

of my own personal knowledge, and if called upon as a witness, I could and would testify

21

competently thereto.

22
23

2.

This Declaration is in support of the State Defendants’ Response to Plaintiffs’

Supplement and is attached thereto as Exhibit G.

24

3.

I am the Chief Medical Officer for the State of Nevada.

25

4.

As the Chief Medical Officer, I lead and coordinate Nevada’s epidemiologic

26
27

response to disease outbreaks and emergency health threats.
5.

Previously, I served as the State Epidemiologist for nearly fourteen years.

28

Page 1

Case 3:20-cv-00303-RFB-VCF Document 39-4 Filed 06/07/20 Page 3 of 6
1

6.

I earned my medical degree from Cluj University of Medicine in Romania in

2

1982 and completed my OBGYN residency in 1986. I also hold a Centers for Disease Control

3

and Prevention (CDC) Graduate Certificate in Epidemiology, Biostatistics and

4

Demography from the University of Seattle School of Public Health and Community

5

Medicine, and a CDC Chronic Disease Epidemiology Certificate from the Penn State

6

College of Medicine. At the University of Nevada, Reno, I completed my MPH in 2002 and

7

PhD in 2010. I have been the recipient of several awards, including the 2011 National

8

Sheppard Award for Excellence in Epidemiology.

9

7.

I work for the Division of Public and Behavioral Health (“DPBH”), which is

10

part of Nevada’s Department of Health and Human Services (“DHHS”).

11

Department of Health and Human Services Health (DHHS)

12

8.

Nevada

I have been intimately involved with the statewide COVID-19 response. My

13

role is to oversee analysis of statewide data on COVID-19 cases and trends in disease in

14

disease morbidity and mortality. I am familiar with the Governor’s emergency declaration

15

and subsequent emergency directives.

16

9.

The virus that causes COVID-19 is thought to spread mainly from person to

17

person, mainly through respiratory droplets produced when an infected person—even one

18

who exhibits no symptoms—speaks, coughs or sneezes. These droplets can land in the

19

mouths or noses of people who are nearby or possibly be inhaled into the lungs. The role of

20

other transmission pathways such as through aerosols that may travel long distances or

21

through contaminated surfaces has been suggested and is still being researched.

22
23
24

10.

One of the aspects of COVID-19 that makes it difficult to prevent spread is

that it can be transmitted by a person who is asymptomatic.
11.

COVID-19 can spread quickly. A person with COVID-19, on average, infects

25

approximately two to three people. Unchecked, COVID-19 spreads exponentially and over

26

10 transmission cycles, one person could be responsible for 1,024 other people contracting

27

the virus. Physical distancing interventions have been successful in reducing the number

28

of persons infected by each case and changing the exponential pattern of case increases.

Page 2

Case 3:20-cv-00303-RFB-VCF Document 39-4 Filed 06/07/20 Page 4 of 6
1

That is why these interventions are so important for controlling COVID-19 in Nevada.

2

Physical distancing measures include staying home except for needing to address

3

important things such as picking up medications; and staying at least six feet away from

4

others when outside the home.

5

12.

Spread is more likely when people are in close contact with one another

6

(within about six feet). COVID-19 is currently spreading in the community (community

7

spread) in many affected geographic areas. An area is experiencing community spread

8

when residents are becoming infected with the virus in community settings, and it is not

9

possible to identify the source of exposure in some cases.

10

13.

In light of evidence of widespread COVID-19 transmission in communities

11

across the country, CDC recommends that people wear a cloth face covering to cover their

12

nose and mouth in the community setting. This is an additional public health measure

13

people should take to reduce the spread of COVID-19 in addition to, not instead of, physical

14

distancing, frequent hand cleaning, and other everyday preventive actions. A cloth face

15

covering is not intended to protect the wearer but may prevent the spread of virus from the

16

wearer to others. This would be especially important in the event that someone is infected

17

but is not aware of their illness and is not self-isolating. A cloth face covering should be

18

worn when people must go into public settings and especially if they expect to have

19

difficulty maintaining physical distancing, such as when going to the grocery store.

20

However, wearing a mask or frequently washing one’s hands, will not prevent completely

21

the spread of the disease. Each of these measures contributes to reducing the risk of

22

transmission.

23

14.

People with COVID-19 have had a wide range of symptoms reported – ranging

24

from mild symptoms to severe illness. A large number of people with COVID-19 have no

25

symptoms. People who have no symptoms can, however, still spread COVID-19. COVID-19

26

can cause severe disease, including death. Older adults and people of any age who have

27

serious underlying medical conditions are at higher risk for severe illness from COVID-19.

28

Page 3

Case 3:20-cv-00303-RFB-VCF Document 39-4 Filed 06/07/20 Page 5 of 6
1

15.

The purpose of the state’s current health and safety rules is to protect

2

vulnerable people from infection with the coronavirus that causes COVID-19 (SARS-CoV-

3

2) and to reduce the spread of that virus in the community. By reducing community spread,

4

we can protect persons at increased risk of severe disease and prevent critical

5

infrastructure, particularly health care facilities, from being overwhelmed. As geographical

6

areas become less susceptible to being overwhelmed by a potential increase in community

7

spread and areas demonstrate the ability to test and trace consistent with relevant

8

guidelines, other health and safety rules may be promulgated to allow more sectors of the

9

economy to operate, based on risk factors those sectors pose to public health and safety.

10

16.

Whenever a number of people interact outside the home, there is an increased

11

risk that COVID-19 may be transmitted. There have been multiple reports of sizable to

12

large gatherings such as sport events, concerts, religious services, choir practices, funerals,

13

and parties resulting in significant spread of COVID-19.

14

17.

Based on my experience with infectious disease prevention, measures that

15

depend on individual behavior, such as mask wearing, are difficult to sustain and less

16

effective than systematic measures, such as canceling gatherings and curtailing activities

17

that increase the risk of transmission. I believe that in gatherings of large numbers of

18

people, it may be very hard to maintain physical distancing.

19

18.

As noted earlier, the virus can be spread by people who are not showing

20

symptoms. Thus, people who gather in groups or near others (other than those with whom

21

they live) will not be able to know whether other individuals who are in close proximity are

22

carrying the virus. By gathering in large groups, and in close proximity to others,

23

individuals put themselves and others at risk. The risk appears to be increased where

24

groups of individuals are in close proximity for extended period.

25

19.

Individuals attending large gatherings, including but not limited to the types

26

of events where there have prior instances of COVID-19 spreading, would be at increased

27

risk of disease and could be expected to increase the spread of COVID-19 in their

28

communities and any other communities they visit. When an individual is exposed to and

Page 4

Case 3:20-cv-00303-RFB-VCF Document 39-4 Filed 06/07/20 Page 6 of 6
1

contracts the novel coronavirus at a large gathering, there is a high likelihood that he or

2

she will spread COVID-19 to other individuals in his/her community, and in some cases

3

perpetuate the infection rates across county lines. This spread could fan out into different

4

parts of the state, jeopardizing the hard work to contain COVID-19 that is going on in many

5

communities and placing a further strain on hospitals and other resources across the state.

6

20.

While keeping six feet of separation and wearing masks can reduce the risk

7

of disease transmission, any gathering poses some risk. Asymptomatic and presymptomatic

8

patients can spread COVID-19 more than 6 feet (up to 12 feet) through coughing and

9

sneezing. Additionally, the virus can survive for significant time in the environment. This

10
11

is why the CDC recommends that large gatherings be cancelled.
21.

Operations at work places pose a lower risk of transmission than in large

12

gatherings that have the purpose of engaging in a shared communal experience. In work

13

places workers often work independently or on small teams most of the time, social

14

interactions are typically brief and ancillary, precautions can be mandated easily because

15

of the employer/employee relationship, and contact tracing can be easier to carry out in the

16

case of an outbreak. Furthermore, places like restaurants are subject to stringent health

17

and safety guidelines that can mitigate transmission.

18

22.

In-person worship services pose specific risks for disease transmission.

19

Statewide guidance has been issued regarding ways to reduce those risks. In addition, the

20

COVID-19 situation varies by locality in Nevada. The ability to reduce the risk of in-person

21

worship will depend on whether localities have attained sufficient testing, tracking,

22

hospital capacity, and infection rates that indicate epidemiological stability and an ability

23

to contain outbreaks if they occur.

24
25
26
27
28

I declare under the penalty of perjury under the laws of the United States that the
foregoing is true and correct to my personal knowledge.
DATED June 7, 2020
__/s/ Ihsan Azzam_________________________________________
IHSAN AZZAM, Ph.D, M.D., M.P.H.
CHIEF MEDICAL OFFICER FOR THE STATE OF NEVADA

Page 5
APP NO. 19A1070
--------------------------IN THE SUPREME COURT OF THE UNITED STATES
--------------------------CALVARY CHAPEL DAYTON VALLEY,
Applicant,
v.
STEVE SISOLAK, in his official capacity as Governor of Nevada; et al.,
Respondents.
--------------------------To the Honorable Elena Kagan,
Associate Justice of the United States Supreme Court
and Circuit Justice for the Ninth Circuit
--------------------------REPLY BRIEF IN SUPPORT OF EMERGENCY APPLICATION
FOR AN INJUNCTION PENDING APPELLATE REVIEW
KRISTEN K. WAGGONER
JOHN J. BURSCH
ALLIANCE DEFENDING FREEDOM
440 First Street, NW
Suite 600
Washington, DC 20001
(616) 450-4235
kwaggoner@ADFlegal.org
jbursch@ADFlegal.org
RYAN J. TUCKER
JEREMIAH J. GALUS
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
rtucker@ADFlegal.org
jgalus@ADFlegal.org

DAVID A. CORTMAN
Counsel of Record
RORY T. GRAY
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd, NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
dcortman@ADFlegal.org
rgray@ADFlegal.org
JASON D. GUINASSO
500 Damonte Ranch Parkway, Suite 980
Reno, NV 89521
(775) 853-8746
jguinasso@hutchlegal.com

Counsel for Applicant
Calvary Chapel Dayton Valley

CORPORATE DISCLOSURE STATEMENT
The corporate disclosure statement in the application for an injunction pending
appellate review remains unchanged.

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ................................................................ i
TABLE OF AUTHORITIES ......................................................................................... iii
ARGUMENT .................................................................................................................. 4
I.

The Governor’s response confirms the Free Exercise violation. ....................... 4
A.

Nevada treats comparable secular assemblies better than
Calvary Chapel’s religious gatherings..................................................... 5

B.

The Governor’s claim that commercial assemblies and worship
gatherings are never comparable fails. ................................................. 12

C.

The Governor’s own response eliminates any suggestion that
places of worship pose a unique risk. .................................................... 14

II.

The Governor’s own words prove that he favors secular over religious
speech. ............................................................................................................... 15

III.

The Governor misreads South Bay and Jacobson as granting him a
blank check. ....................................................................................................... 17

CONCLUSION............................................................................................................. 19
CERTIFICATE OF SERVICE ..................................................................................... 21

ii

TABLE OF AUTHORITIES
Cases
Cantwell v. Connecticut,
310 U.S. 296 (1940) ................................................................................................. 18
Cruzan v. Director, Missouri Department of Health,
497 U.S. 261 (1990) ................................................................................................. 18
Espinoza v. Montana Department of Revenue,
No. 18-1195, 2020 WL 3518364 (U.S. 2020) ......................................................... 1, 4
Exxon Mobil Corp. v. Allapattah Services, Inc.,
545 U.S. 546 (2005) ................................................................................................... 3
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ............................................................................................... 2, 18
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) ................................................................................................. 16
Northern Heel Corp. v. Compo Industries,
851 F.2d 456 (1st Cir. 1988) ...................................................................................... 9
Phillips v. City of New York,
775 F.3d 538 (2d Cir. 2015) ..................................................................................... 19
South Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020) ..................................................................................... passim
South Bay United Pentecostal Church v. Newsom,
959 F.3d 938 (9th Cir. 2020) ................................................................................... 18
Thomas v. Review Board of Indiana Employment Security Division,
450 U.S. 707 (1981) ................................................................................................... 9
Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017) ............................................................................................... 4
Trump v. Vance,
No. 19-635, 2020 WL 3848062 (U.S. 2020) ............................................................... 3
United States v. Burr,
25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) ............................................................... 3

iii

Other Authorities
Carson City Health & Human Services, Lyon County COVID-19 Data
(July 15, 2020), https://bit.ly/3ekOn0T ............................................................... 2, 10
Carson Plains Casino, https://carsonplainscasino.net ............................................... 10
Governor Sisolak, COVID-19 Declaration of Emergency Directive 013
(Apr. 8, 2020), https://bit.ly/2ChHujR ..................................................................... 16
Governor Sisolak, COVID-19 Declaration of Emergency Directive 016
(Apr. 29, 2020), https://bit.ly/2B5eivX .................................................................... 16
Governor Sisolak, COVID-19 Declaration of Emergency Directive 024
(June 24, 2020), https://bit.ly/32p7PXU ............................................................. 7, 10
Governor Sisolak, COVID-19 Declaration of Emergency Directive 027
(July 10, 2020), https://bit.ly/2OgmFYC ............................................................... 2, 9
Jackie Valley & Riley Snyder, Sisolak, elected official pledge to address systemic
racism and society’s ‘double standard’ toward black protestors, The Nevada
Independent (June 5, 2020), https://bit.ly/32qAVq2 .............................................. 16
Kelsey Penrose, Gov. Sisolak makes appearance at Black Lives Matter Protest in
Carson City, Carson NOW.org (June 19, 2020), https://bit.ly/2VKTS2p .............. 11
Lauran Neergaard, First COVID-19 vaccine tested in US poised for final testing,
AP News (July 14, 2020), https://bit.ly/2CHgMAR .................................................. 3
MapQuest, http://mapq.st/3iXbkuo ............................................................................. 10
Nevada Department of Health & Human Services, COVID-19 Dashboard
(July 15, 2020), https://bit.ly/3j5kBAK ................................................................... 10
United States Census Bureau, Quick Facts, Lyon County, Nevada
(July 12, 2020), https://bit.ly/2C715TE ............................................................... 2, 10

iv

To the Honorable Elena Kagan, as Circuit Justice for the United States Court of
Appeals for the Ninth Circuit:
The State of Nevada does not dispute that it is treating casinos, gyms,
restaurants, certain bars, indoor amusement parks, bowling alleys, water parks,
pools, arcades, and more, better than places of worship. Nor could it. Governor
Sisolak’s Directive 021 subjects each of these secular businesses to only a 50%-firecode-capacity limit while limiting gatherings at places of worship to no more than 50
people, regardless of their facilities’ size or the precautions they take. By “exempt[ing]
or treat[ing] more leniently” similar secular activities “where large groups of people
gather in close proximity for extended periods of time,” S. Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in the
denial of application for injunctive relief), the directive violates the Free Exercise
Clause.
Nor do the Governor’s reasons for favoring casinos remedy the “unequal
treatment.” Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, 2020 WL 3518364, at
*5 (U.S. 2020). First, they say nothing about the Governor’s better treatment of all
the other secular comparators Calvary Chapel raised in its application. Second,
Nevada’s gaming regulation of casinos does not ward off any comparison to churches.
To be sure, casinos—with their daily mix of shared handles, cards, tokens, tables,
servers, drinks, restrooms, and seats by hundreds to thousands of people—face some
regulations that others do not, but so do churches. Ninth Circuit Excerpts of Record
(“ER”) 546–47 (industry guidance for places of worship). What matters is that both

1

casinos and churches are places where “people gather in close proximity for extended
periods of time.” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring). Yet the
Governor allows hundreds to thousands to assemble in pursuit of financial fortunes
but only 50 to gather in pursuit of spiritual ones. That is unconstitutional.
The Governor’s newest directive fails to fix the unequal treatment. Shortly
after Calvary Chapel filed its application with the Court, the Governor issued a
directive closing bars in some—but not all—counties. See Governor Sisolak, COVID19 Declaration of Emergency Directive 027 (July 10, 2020), https://bit.ly/2OgmFYC.
The Governor is mandating bar closures only in those counties he claims have
“Elevated Disease Transmission.” Incredibly, the Governor has labeled Lyon County
(the county where Calvary Chapel is located) as one such county, even though it has
just 33 active cases out of roughly 57,000 people—an active infection rate of 0.058%.1
The classification appears to be a litigation tactic that serves no valid public-health
purpose. In fact, Lyon County is on the Governor’s list because the Governor decided
to punish the county for its low number of COVID-19 tests. Resp. Ex. 1 at 1–2. And
even Lyon County’s designation does not fix the unequal treatment Calvary Chapel
faces next to the numerous other secular comparators that have not been closed.
Unable to seriously dispute his unequal treatment of churches, Governor
Sisolak says that South Bay and Jacobson v. Massachusetts, 197 U.S. 11 (1905), write
him a blank check to address the COVID-19 outbreak as he likes, however unequal.

See Carson City Health & Human Servs., Lyon County COVID-19 Data (July 15,
2020), https://bit.ly/3ekOn0T; United States Census Bureau, Quick Facts, Lyon
County, Nev. (July 12, 2020), https://bit.ly/2C715TE.
1

2

That is not true. And it is imperative for this Court to say so. South Bay did not
involve an order like Nevada’s that treats casinos, bars, gyms, fitness centers,
amusement parks, water parks, bowling alleys, arcades, mass protests, and polls
better than worship services. A crisis is no time for elected officials to survey the vast
“crowd” of First-Amendment-protected activity and “pick[] out [their] friends.” Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). Even during the
COVID-19 outbreak, governors—like presidents—are “‘of the people’ and subject to
the law.” Trump v. Vance, No. 19-635, 2020 WL 3848062, at *5 (U.S. 2020) (quoting
United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807)).
And far from being a temporary measure, the Governor’s restrictions on houses
of worship have spanned nearly four months, with no end in sight. Even the rosiest
predictions are that a safe and effective vaccine will not be ready before next year. 2
That is—at least—five more months of assemblies and expression at casinos,
restaurants and certain bars, indoor theme parks, bowling alleys, pools, and arcades
thriving, while their religious counterparts wither. Neither Calvary Chapel nor the
First Amendment can tolerate such religious discrimination. The church respectfully
requests that this Court issue an injunction now.

Lauran Neergaard, First COVID-19 vaccine tested in US poised for final testing, AP
News (July 14, 2020), https://bit.ly/2CHgMAR.
2

3

ARGUMENT
Not every COVID-19 order violates the First Amendment. But Governor
Sisolak’s Directive 021 palpably does, and this is not a case in which he acted
hurriedly. The Governor has had nearly four months to refine the rules, including
almost two months after Calvary Chapel filed suit and clarified the First Amendment
violation. But rather than fix inequalities, the Governor has consistently doubled
down on the discrimination against places of worship, as his response tells.
All Calvary Chapel requests is the ability to meet at 50% fire-code capacity like
the secular assemblies the Governor has freely permitted for almost two months.
Ordering “‘equal treatment’” of religious gatherings and expression is not intrusive
or outside the Court’s scope. Espinoza, 2020 WL 3518364, at *5 (quoting Trinity
Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)). It just
prevents the Governor from discriminating against religion, as the Constitution
demands.
Nothing about Calvary Chapel’s requested order would require this Court to
supervise the Governor’s every move, as he portends. Resp. 22. The church only
requests equal treatment. The Governor simply needs to give Calvary Chapel the
same right to meet he extends to comparative secular gatherings. Yet the Governor
continues to resist that common-sense requirement.
I.

The Governor’s response confirms the Free Exercise violation.
The Governor’s response proves that Nevada treats secular assemblies better

than religious gatherings, that the Governor’s oft-repeated “commerce” label is

4

meaningless, and that none of the state’s justifications for disfavoring religion make
sense. Rather than dispel the free-exercise violation described in Calvary Chapel’s
application, the Governor’s response amplifies it.
A.

Nevada treats comparable secular assemblies better than
Calvary Chapel’s religious gatherings.

The Governor claims that he treats houses of worship the same as “comparable
mass gatherings.” Resp. 2. That argument is baffling until the Governor clarifies that
“all mass gatherings,” id. at 17, is actually a tiny subset of large assemblies. What
the Governor means by “mass gatherings generally,” id. at 7, are assemblies covered
under Directive 021, § 10’s catch-all—not the secular assemblies addressed in other
portions of the directive. Calvary Chapel’s application explains that overlooking the
directive’s many explicit and real-life exemptions for large, close, and prolonged
secular assemblies is “irrational.” Application 21. Yet the Governor rehashes this
sleight of hand.
The Governor next cites three types of secular assemblies that are (at least
nominally) subject to a 50-person cap: (1) movie theaters (§ 20), (2) museums, art
galleries, zoos, and aquariums (§ 30), and (3) trade schools and technical schools
(§ 32). Resp. 5, 15. But he never explains how it is equal to allow 50 customers per
room in a multiplex cinema and 50 people total in a place of worship, no matter how
many separate rooms could be used for worship without any contact between people
in different spaces. Application 16–17. Nor does the Governor give any reason why
museums and trade schools, in which people regularly move back and forth in tight

5

spaces, are comparable to places of worship, where people usually remain seated—
and socially distanced—in large rooms.
The Governor also claims that he treats places of worship better than “musical
performances, live entertainment, concerts . . . and any events with live
performances.” Resp. 14. But Calvary Chapel already proved that people have been
attending live circus acts and musical shows at casinos for a month. Application 13.
The Governor does not refute this evidence. And in any event, the Governor is wrong
to contend that there is no First Amendment violation if he treats at least one secular
gathering worse than or as poorly as he treats places of worship. Free exercise is a
fundamental right that demands enhanced protection. By the Governor’s logic, he
could shut down every religious service in Nevada if a single form of disfavoredsecular assembly (say, concerts) is banned. That is wrong.
The

Governor’s

explanations—or

lack

thereof—for

treating

secular

comparators more favorably than he treats places of worship are equally
unconvincing:
Casinos
The Governor’s justifications for excluding casinos as secular comparators are
meritless. First, the right to hold a non-restricted gaming license may be “a privilege,”
Resp. 5 n.10, with certain restrictions attached, Resp. 5. But no state-licensed
privilege compares to Calvary Chapel’s fundamental right to the free exercise of
religion. Nevada cannot treat places of worship worse because religion is

6

constitutionally protected (and subject to fewer restrictions), and gambling is not (and
subject to greater control). That gets things precisely backwards.
This Court in South Bay did not compare secular and religious assemblies’
licensing regimes. If it had, this Court likely would not have deemed any secular
businesses comparable to places of worship. But that is not what transpired. S. Bay,
140 S. Ct. at 1613 (Roberts, C.J., concurring) (discussing businesses on both sides of
the comparability line). The Chief Justice asked whether the state “exempts or treats
more leniently . . . [ ]similar activities [to religious services] in which people . . .
congregate in large groups [and] remain in close proximity for extended periods.” Ibid.
Thousands of people gambling and enjoying entertainment at casinos fit that bill.
Second, the Governor says that casinos take more safety precautions. Resp. 6.
For example, the Governor argues that casinos provide “masks for all guests” and
require patrons to “wear face coverings at table and card games if there is no other
barrier.” Resp. 6–7. But nearly everyone must wear a face covering in public places,
including casinos and places of worship.3 And Calvary Chapel also gives a mask to
anyone entering its building who needs one.
Then the Governor says that all casinos have locations for people to get
COVID-19 tests. Resp. 6 (citing Exhibit 2). But that requirement applies only to
casinos that are “a resort hotel” and their “hotel guests.” Resp. Ex. 2 at 7. And all the
policy mandates is that hotels “provide a designated area within the resort where

Governor Sisolak, COVID-19 Declaration of Emergency Directive 024 (June 24,
2020), https://bit.ly/32p7PXU.
3

7

hotel guests may be tested for COVID-19, and where such hotel guests can safely wait
for the test results.” Resp. Ex. 2 at 7 (emphasis added). It obliges no hotel guest to
take a COVID-19 test: a temperature screening or self-assessment is all that is
required. Resp. Ex. 2 at 7. Places of worship are not hotels, so it makes sense that the
state has not applied this rule to them.
Third, the Governor alleges that casinos face stiffer punishments and quicker
shutdowns. Resp. 18. But he has never explained how any penalty levied by the
Nevada Gaming Control Board could be more serious than the potential shutdown of
in-person worship, and civil and criminal penalties that Calvary Chapel faces. And
given that the Governor had no trouble closing down almost the entire state in less
than 24 hours last March, his claim that regulatory oversight is necessary to realize
an abrupt halt if a second outbreak happens is hard to take seriously.
Restaurants and Bars, Amusement Parks, and Fitness Facilities
The Governor ignores Calvary’s Chapel’s comparisons to restaurants and bars,
amusement and theme parks, and gyms and fitness facilities. Because people
obviously “congregate in large groups [and] remain in close proximity for extended
periods” in these secular locations, S. Bay, 140 S. Ct. at 1613 (Roberts, C.J.,
concurring), the Governor essentially refuses to address them. He simply dismisses
Calvary Chapel’s arguments as “breezily offer[ing] its opinion” and feigns that the
church should have presented evidence in the district court on how restaurants,
theme parks, and fitness facilities work. Resp. 17–18.

8

But Nevada bears the burden of “justify[ing its] inroad on religious liberty.”
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). Nor has any
court awaited—let alone required—record evidence of such well-known facts about
how people interact in restaurants and bars, amusement parks, and fitness facilities.
“Judges, unlike ostriches, are not required to bury their heads periodically in the
sand.” N. Heel Corp. v. Compo Indus., 851 F.2d 456, 473 (1st Cir. 1988).
The Governor does briefly mention that, one business day before Calvary
Chapel’s Ninth Circuit opening brief was due, he ordered new restrictions on
restaurants and certain bars. Resp. 1, 4. Yet restaurants’ and bars’ base ability to
operate at 50% capacity remains unchanged. Application 14–15. Restaurants must
simply limit each party to six people.4 And bars and bar tops must close only if they
are in a county the Governor brands as at risk of “Elevated Disease Transmission.”
This label does not mean that the rate of COVID-19 infections is high. Based on the
Governor’s odd criteria, it could signify only that the county (1) averages what the
Governor deems to be too few COVID-19 tests per day, and (2) has a case rate higher
than 25 and a test positive rate—no matter how few tests are performed—higher than
7%. Resp. Ex. 1 at 1–2.
To that point, the Governor just last week labeled Lyon County—where
Calvary Chapel is located—as at risk of “Elevated Disease Transmission.” Resp. Ex.
1 at 2. But this seems to be a litigation tactic that serves no valid public-health

Governor Sisolak, COVID-19 Declaration of Emergency Directive 027, § 4–6 (July
10, 2020), https://bit.ly/2B7lF64.
4

9

purpose. Resp. 4, 8. Lyon County has just 33 active cases out of roughly 57,000
people—an active infection rate of only 0.058%.5 It is on the Governor’s list simply
because he chose to punish Lyon County for its low number of COVID-19 tests. Resp.
Ex. 1 at 1–2. The actual COVID-19 hotspots are Clark and Washoe County, where
most of Nevada’s casinos, tourism, and population is located: those two counties
collectively account for 96.25% of all confirmed cases in the state.6 So the argument
that Lyon County is a dangerous locale cannot be taken seriously. Resp. 4 n.8.
Nevada’s restaurants and many bars continue to operate at 50% capacity. Even
where bars and bar tops are closed, restaurants and casinos may continue to serve
alcohol to groups seated at restaurant and gaming tables.7 And large secular
assemblies continue to occur at casinos like the Carson Plains Casino in Dayton
Valley, which is only about a four-mile drive from Calvary Chapel on U.S. route 50.8
Mass Protests
The Governor argues that mass protests are distinct from worship services,
Resp. 19, but the only differences he notes are: (1) protestors raising serious
discussions about policing and race, (2) the cost “of enforcement of social distancing,”
and (3) state officials “attempting to address important community issues.” Resp. 19.

See Carson City Health & Human Servs., Lyon County COVID-19 Data (July 15,
2020), https://bit.ly/3ekOn0T; United States Census Bureau, Quick Facts, Lyon
County, Nev. (July 12, 2020), https://bit.ly/2C715TE.
6 Nev. Dep’t of Health & Human Servs., COVID-19 Dashboard (July 15, 2020),
https://bit.ly/3j5kBAK.
7 Directive 024, § 5–6, supra p. 7 n.3.
8 Carson Plains Casino, https://carsonplainscasino.net;
MapQuest, http://mapq.st/3iXbkuo.
5

10

It should be self-evident that religious gatherings can address policing and race too:
Reverend Martin Luther King was a minister after all. Yet those who speak and pray
from the pulpit may reach only 49 people at a time, whereas those who address crowds
at mass protests have no limits.
Nor does it make sense for the Governor to encourage mass protests when he
admits they do not involve social distancing (hence the need for “enforcement of social
distancing”), Resp. 19, over Calvary Chapel’s worship services, which comply with or
exceed CDC guidelines, ER 107. Speakers who abide by the Governor’s socialdistancing and face-covering rules (like Calvary Chapel) should be allowed to host
larger gatherings, not smaller ones.
When it comes to Governor Sisolak’s personal participation in a mass protest,
he cannot have his cake and eat it too. Application 23–24. The Governor admits that
mass protests are not socially distanced and then claims the one he participated in
did not violate any rules. Resp. 19 & n.20. But photographs make clear that Governor
Sisolak did not socially distance at the protest.9 Unless mass gatherings under
Directive 021, § 10 are not subject to the same social-distancing requirements that
worship gatherings are under § 11, the Governor violated his own directive. And if
the Governor holds worship services to social-distancing requirements from which he
exempts general mass gatherings, that discriminatory treatment violates even his
narrow construction of South Bay. Resp. 2, 7, 17.

Kelsey Penrose, Gov. Sisolak makes appearance at Black Lives Matter Protest in
Carson City, Carson NOW.org (June 19, 2020), https://bit.ly/2VKTS2p.
9

11

Last but not least, the Governor suggests that he can decide what is an
“important community issue[ ]” and what is not. Resp. 19. The clear assumption is
that the intersection of race and policing is vital, and religion falls short. But that
sort of value judgment violates the First Amendment. State officials cannot devalue
religious reasons for speaking to large groups or pick and choose what subjects are
worthy of public debate. Application 19–20, 23–25.
Election Polls
When it comes to election polls, the Governor’s only argument is that Calvary
Chapel “ignore[s] Nevada’s significant efforts to reduce in-person voting.” Resp. 19
n.21. But maximizing mail-in ballots has nothing to do with the lack of safety
precautions at the polls. It is not as if the Governor shut down all in-person voting
sites. He knew large crowds would come.
Crowds waiting in meandering lines for hours to vote at a few state-sponsored
voting locations, ER 68–72, qualify as “large groups . . . in close proximity for
extended periods.” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring). Yet the
Governor exempted polls from the directive wholesale and treated them far “more
leniently” than places of worship that are subject to a 50-person cap. Ibid.
B.

The Governor’s claim that commercial assemblies and worship
gatherings are never comparable fails.

One of the Governor’s primary themes is that “mass gatherings are different
than commercial activities.” Resp. 13. He faults Calvary Chapel for “presum[ing] that
it should be treated the same as a business,” Resp. 23, and cites South Bay as

12

confirming the “difference between mass gatherings and commercial activities,” Resp.
12. But the Chief Justice’s concurrence in South Bay said nothing of the sort.
Where the Governor discovers such a categorical rule is never explained. Chief
Justice Robert’s concurrence states that some commercial gatherings like “movie
showings” are comparable to religious services, whereas other commercial assemblies
like “grocery stores” are not. S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring). So
commerce was not the deciding factor. The size, proximity, and duration of the secular
assembly is what mattered. Ibid.
For all the Governor’s talk about South Bay, Resp. 2, 7, 13–15, 17, he overlooks
what Chief Justice Roberts’ brief concurrence said: because California “exempt[ed] or
treat[ed] more leniently only dissimilar activities . . . in which people neither
congregate[d] in large groups nor remain[ed] in close proximity for extended periods”
of time, the Chief Justice detected no free-exercise violation. South Bay, 140 S. Ct. at
1613 (Roberts, C.J., concurring) (emphasis added). In contrast here, the Governor
favors a vast array of large, close, and extended secular assemblies over places of
worship, including those at casinos, restaurants and certain bars, amusement and
theme parks, gyms and fitness facilities, bowling alleys, pools, arcades, movie
theaters, mass protests, polls and more. The Governor holds only places of worship to
a 50-person cap. And that is not equal under any definition of the term. In short, the
Governor’s directive is nothing like “California’s order . . . in South Bay.” Contra
Resp. 13.

13

Another claim the Governor briefly repeats is that religious services are
different than “general commerce,” Resp. 15, or “shopping, in which people do not
congregate or remain for extended periods,” Resp. 16 (quotation omitted). But none
of Calvary Chapel’s secular comparators emphasize shopping or general commerce,
so this assertion is beside the point, as the application explains. Application 22.
C.

The Governor’s own response eliminates any suggestion that
places of worship pose a unique risk.

In a few sentences, Nevada implies that places of worship pose some kind of
unique health risk. Resp. 1–2, 18 n.18. But the state’s own response proves that is
false. The Governor’s “assessment of risk,” Resp. 23, is that “COVID-19 is most
effectively spread through interpersonal interaction with an infected person . . .
particularly over an extended period of time,” Resp. 1. This risk is inherent in all
“mass gatherings, which carry higher risks for COVID-19 transmission.” Resp. 21.
That is all Nevada’s Chief Medical Officer said. After distinguishing gatherings
like religious services from “important things such as picking up medications,” Resp.
Ex. 4 at 3, the Chief Medical Officer’s declaration states that “[i]ndividuals attending
large gatherings, including but not limited to the types of events where there have
prior instances of COVID-19 spreading, would be at increased risk of disease and
could be expected to increase the spread of COVID-19 in their communities and any
other communities they visit.” Resp. Ex. 4 at 4 (emphasis added). These concerns
apply equally to secular assemblies at casinos, restaurants and bars, theme parks,
fitness facilities, mass protests, and polls, as they do religious gatherings at places of
worship. No evidence supports uniquely impeding worship.

14

On the contrary, an expert in infectious diseases testified on Calvary Chapel’s
behalf that “[t]here is no scientific or medical reason that a religious service that
follows the guidelines issued by the CDC would pose a more significant risk of
spreading SARS-CoV-2 than gatherings or interactions at other establishments or
institutions.” ER 105 (¶ 27). He also testified that the health precautions Calvary
Chapel adopted for its in-person services are “equal to or more extensive than those
recommend by the CDC” and that “there is no scientific or medical reason to limit or
restrict [the church’]s religious activities but not similarly limit other gatherings or
activities.” Id. at 107 (¶¶ 35, 36).
Nevada’s Chief Medical Officer may say he disagrees with these expert
conclusions. Resp. 18 n.18. But he never offered a reason why, and the substance of
his declaration is consistent with Calvary Chapel’s infectious-disease expert’s
testimony.
II.

The Governor’s own words prove that he favors secular over
religious speech.
The Governor claims that he does not prefer “commercial speech [over]

religious speech” or regulate on a “viewpoint basis.” Resp. 20. But his own words
prove that is not true. Indeed, the Governor’s position tilts to extremes, claiming that
the church has not even suffered true free-exercise harm because it may hold:
(1) outdoor services (in nearly 100 degree summer temperatures), 10 (2) offer

Notably, Directive 016, § 10 did not allow the faithful to gather for unlimited
outdoor religious services, as the Governor claims. Resp. 7. It simply allowed places
of worship to hold drive-in services, which the Governor previously banned in
Directive 013, § 4. Governor Sisolak, COVID-19 Declaration of Emergency Directive
10

15

additional in-person services (which it already does) or (3) begin drive-in services
(that do not satisfy its religious beliefs or meet its members’ spiritual needs). Resp.
10, 22.
Governor Sisolak’s treatment of commercial businesses and secular protests is
miles away. Not once has the Governor suggested that casinos, restaurants, fitness
facilities, arcades, protests, or elections move their expression online. Indeed, the
Governor would hardly allow these secular assemblies at 50% capacity (or no limits)
if he regarded these alternatives as sufficient.
The freedoms of speech and assembly are closely joined, NAACP v. Ala. ex rel.
Patterson, 357 U.S. 449, 460 (1958) (citation omitted), which is why the Governor
made a personal appearance at a mass protest, rather than expressing his support
merely through tweets, ER 254, 256, or press conferences.11 But what is good for the
goose is good for the gander. Governor Sisolak did not tell casinos that online
gambling is good enough to entice patrons to part with their money from afar, or
encourage protestors to hold multiple, small protests to effect social change. So he
has no right to tell places of worship to hold more services or stream online to convey
their religious messages. The inequality is blatant and wrong.
State officials cannot reserve free speech for themselves, commercial
businesses, and private citizens whose views they champion. Calvary Chapel’s

013 (Apr. 8, 2020), https://bit.ly/2ChHujR; Governor Sisolak, COVID-19 Declaration
of Emergency Directive 016 (Apr. 29, 2020), https://bit.ly/2B5eivX.
11 Jackie Valley & Riley Snyder, Sisolak, elected official pledge to address systemic
racism and society’s ‘double standard’ toward black protestors, The Nev. Indep. (June
5, 2020), https://bit.ly/32qAVq2.
16

religious messages stand on an equal constitutional rung as the protesters’ message.
And the church’s religious expression stands on a much higher plane than the
commercial speech of casinos, theme parks, bowling alleys, and other businesses that
Directive 021 promotes and allows to flourish. Application 18–20.
III.

The Governor misreads South Bay and Jacobson as granting him a
blank check.
Much of Nevada’s brief is dedicated to the argument that the extraordinary

facts of this case make no difference because South Bay and Jacobson write the
Governor a blank check to address the COVID-19 outbreak as he likes. But those
cases could hardly be more different.
The Governor repeatedly urges this Court to just cite South Bay and deny the
application, as did the Ninth Circuit. Resp. 2, 7, 14–15, 17. But South Bay’s facts were
nothing like those here. The primary comparators in that case were warehouses and
retail stores. Not only were the number of potential secular comparators far more
limited, but their similarities to religious services were much less clear. Nothing in
South Bay indicates this Court would regard casinos, restaurants and certain bars,
theme parks, pools, bowling alleys, arcades, mass protests, and polling places the
same way. Based on the Chief Justice’s concurrence, the opposite is true. Supra p.11–
12.
Once more, the Governor errs by claiming that South Bay reaffirmed Jacobson.
This Court did not say so explicitly, nor should it. Jacobson issued before the Court
applied the First Amendment to the states. E.g., Cantwell v. Connecticut, 310 U.S.

17

296, 303 (1940). It is a shaky foundation on which to ground any merits analysis 115
years later, let alone review under the First Amendment.
What’s more, Jacobson involved a five-dollar criminal fine that Cambridge,
Massachusetts imposed on a resident who refused to comply with the city’s
mandatory and universal vaccination regime during a local smallpox outbreak. 197
U.S. 13. Jacobson’s only claim was that the Fourteenth Amendment’s liberty
guarantee entitled him to an exemption that the city offered no one else. Id. at 38;
accord Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990) (Jacobson
“balanced an individual’s liberty interests in declining an unwanted smallpox vaccine
against the State’s interesting in preventing disease”).
This Court held that even when it came to a universally-required vaccine, the
mandate would be invalid if it had “no real or substantial relation to [the] object” of
protecting public health or safety “or is, beyond all question, a plain, palpable
invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. And
the Jacobson Court further stressed that “no [emergency health] rule prescribed by a
state . . . shall contravene the Constitution of the United States, nor infringe any
rights granted or secured by that instrument.” Id. at 25.
So Jacobson does not displace normal constitutional standards, as Judge
Collins proved. S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 941–43
(9th Cir. 2020) (Collins, J., dissenting). It just “rejected . . . a ‘substantive due process’
challenge to a compulsory vaccination requirement, holding that such a mandate ‘was

18

within the State’s police power.’” Id. at 942 (quoting Phillips v. City of New York, 775
F.3d 538, 542 (2d Cir. 2015)).
Nothing in South Bay or Jacobson supports the Governor’s expansive claim
that “emergency public health decisions are left by the Constitution to a State’s
elected officials” alone. Resp. 18. Chief Justice Roberts’ concurrence indicates that the
Constitution “principally entrusts” these matters to elected officials and that they
have “broad” discretion in devising solutions. S. Bay, 140 S. Ct. at 1613 (Roberts, C.J.,
concurring) (emphasis added). But the Chief Justice recognized that even “those
broad limits [can be] exceeded,” id. at 1614, as is the case here.
Unless this Court intervenes, Nevada and other states will continue
misjudging this Court’s precedent and using South Bay and Jacobson to trample on
delicate First Amendment rights. Granting Calvary Chapel’s application would
benefit not just the church but go a long way towards helping courts properly navigate
these difficult issues.
CONCLUSION
Calvary Chapel respectfully requests that this Court issue an injunction
pending appellate review that allow the church to host religious gatherings on the
same terms as comparable secular assemblies (at present, 50% fire-code capacity),
with social distancing, face coverings, and other neutral and generally-applicable
precautions in keeping with the church’s comprehensive health and safety plan.

19

Respectfully submitted.
/s/ David A. Cortman
KRISTEN K. WAGGONER
JOHN J. BURSCH
ALLIANCE DEFENDING FREEDOM
440 First Street, NW
Suite 600
Washington, DC 20001
(616) 450-4235
kwaggoner@ADFlegal.org
jbursch@ADFlegal.org

DAVID A. CORTMAN
Counsel of Record
RORY T. GRAY
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd, NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
dcortman@ADFlegal.org
rgray@ADFlegal.org

RYAN J. TUCKER
JEREMIAH J. GALUS
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
rtucker@ADFlegal.org
jgalus@ADFlegal.org

JASON D. GUINASSO
500 Damonte Ranch Parkway, Suite 980
Reno, NV 89521
(775) 853-8746
jguinasso@hutchlegal.com

Counsel for Applicant
Calvary Chapel Dayton Valley

20

CERTIFICATE OF SERVICE
A copy of this application was served by email and U.S. mail to the counsel
listed below in accordance with Supreme Court Rule 22.2 and 29.3:
Heidi Parry Stern, Solicitor General
Craig A. Newby, Deputy Solicitor
OFFICE OF THE NEVADA ATTORNEY GENERAL
555 E. Washington Ave, Suite 3900
Las Vegas, NV 89101
(702) 486-3420
hstern@ag.nv.gov
cnewby@ag.nv.gov
Craig R. Anderson
Brian R. Hardy
Kathleen A. Wilde
MARQUIS AURBACH COFFING
10001 Park Run Drive
Las Vegas, NV 89145
(702) 382-0711
canderson@marquisaurbach.com
bhardy@maclaw.com
kwilde@maclaw.com
/s/ David A. Cortman
DAVID A. CORTMAN
Counsel of Record
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd, NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
dcortman@ADFlegal.org

21
Search documents in this case:

Search

No. 19A1070
Title:

Calvary Chapel Dayton Valley, Applicant
v.
Steve Sisolak, Governor of Nevada, et al.

Docketed:

July 8, 2020

Lower Ct:

United States Court of Appeals for the Ninth Circuit

Case Numbers:

(20-16169)

DATE

PROCEEDINGS AND ORDERS

Jul 08 2020

Application (19A1070) for injunctive relief, submitted to Justice Kagan.
Main Document

Jul 09 2020

Response to application (19A1070) requested by Justice Kagan, due
Wednesday, July 15, 2020, by 4 p.m. ET.

Jul 15 2020

Response to application from respondents Steve Sisolak, et al. filed.
Main Document

Jul 16 2020

Proof of Service

Reply of applicant Calvary Chapel Dayton Valley filed.
Reply

Jul 24 2020

Application (19A1070) referred to the Court.

Jul 24 2020

Application (19A1070) denied by the Court. JUSTICE ALITO, with whom
JUSTICE THOMAS and JUSTICE KAVANAUGH join, dissenting from denial
of application for injunctive relief. (Detached Opinion). JUSTICE
GORSUCH, dissenting from denial of application for injunctive relief.
(Detached Opinion). JUSTICE KAVANAUGH, dissenting from denial of
application for injunctive relief. (Detached Opinion).

NAME

ADDRESS

PHONE

Alliance Defending Freedom

7703390774

Attorneys for Petitioner
David Andrew Cortman
Counsel of Record

1000 Hurricane Shoals Road, NE
Suite D-1100
Lawrenceville, GA 30043
dcortman@adflegal.org

Party name: Calvary Chapel Dayton Valley
Attorneys for Respondents
Heidi Jill Parry Stern
Counsel of Record

Office of the Nevada Attorney General 702-486-3594
555 E. Washington Ave., Suite 3900
Las Vegas, NV 89101
hstern@ag.nv.gov

Party name: Steve Sisolak, et al.
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Amy Howe Independent Contractor and Reporter

Posted Fri, July 24th, 2020 10:55 pm
Bio & Post Archive >>

Justices decline to intervene in dispute over Nevada COVID-19 restrictions

Posted Fri, July 24th, 2020 10:55 pm by Amy Howe

A divided Supreme Court on Friday night turned down a request by a
Nevada church for permission to hold services on the same terms that
other facilities in the state, including casinos, are allowed to hold
gatherings during the COVID-19 pandemic. Chief Justice John Roberts
joined the court's more liberal justices in denying the plea from
Calvary Chapel Dayton Valley, a Christian church located about 15 miles
outside the state's capital, Carson City. The ruling drew sharp
dissents from the court's more conservative justices, with Justice
Samuel Alito writing that although the "Constitution guarantees the
free exercise of religion," it "says nothing about the freedom to play
craps or blackjack."

Earlier this month the church asked the justices to issue an order that
would allow it to hold in-person worship services with as many as 90
people while it challenges the COVID-19 shutdown order issued by the
state's Democratic governor, Steve Sisolak. The order discriminates
against places of worship, the church argued, because it limits
services there to a maximum of 50 people while allowing casinos, gyms,
bars and restaurants to operate at 50% of capacity. The church stressed
that it is willing to comply with rules regarding masks and social
distancing (both of which were largely absent from a photo included in
the church's brief, taken at a crowded Las Vegas casino on June 4); all
that it was asking, it emphasized, was to be treated the same as
everyone else.

The state pushed back against the church's suggestion that casinos and
churches should be treated the same. Unlike houses of worship, the
state noted, casinos are "highly regulated" industries that face
"significant punishment" if they do not comply with COVID-19
restrictions and can be shut down quickly during a second wave of the
pandemic. Indeed, the state continued, under the COVID-19 restrictions
religious services receive better treatment than similar mass
gatherings like lectures, concerts, sporting events and plays. And in
any event, the state concluded, Calvary could accommodate its entire
congregation if it wanted to, simply by holding more services.

In a brief one-sentence order, the court rejected the church's request.
In a dissent joined by Justices Clarence Thomas and Brett Kavanaugh,
Alito observed that it was not necessarily a surprise that "Nevada
would discriminate in favor of the powerful gaming industry and its
employees," "but this Court's willingness to allow such discrimination
is disappointing. We have," Alito wrote, "a duty to defend the
Constitution, and even a public health emergency does not absolve us of
that responsibility." "For months now," Alito continued, state and
local governments have "responded to the pandemic by imposing
unprecedented restrictions on personal liberty, including the free
exercise of religion." Although that "initial response was
understandable," Alito conceded, government officials do not have free
rein "to disregard the Constitution for as long as the medical problem
persists."

And as a practical matter, Alito suggested, the idea that "allowing
Calvary Chapel to admit 90 worshippers presents a greater public health
risk than allowing casinos to operate at 50% capacity is hard to
swallow": For casinos, operating at 50% is likely to mean thousands of
people, standing close together and drinking alcohol, which requires
them to take off their masks. What's more, Alito added, casino patrons
often come from all over the country and visit several casinos during
their stay in Las Vegas. By contrast, Alito suggested, worshippers can
maintain social distancing and keep their masks on, and are unlikely
either to travel from far away or to go from church to church.

Justice Neil Gorsuch filed a separate dissent in which he described the
dispute as a "simple case": Although "a 10-screen `multiplex' may host
500 moviegoers at any time," houses of worship are limited to 50
people, "no matter how large the building, how distant the individuals,
how many wear facemasks, no matter the precautions at all." "The world
we inhabit today, with a pandemic upon us, poses unusual challenges.
But there is no world," Gorsuch concluded, "in which the Constitution
permits Nevada to favor Caesars Palace over Calvary Chapel."

Kavanaugh filed his own dissent in which he stressed that the "risk of
COVID-19 transmission is at least as high at restaurants, bars, casinos
and gyms as it is at religious services." So although states can
"subject religious organizations to the same limits as secular
organizations" when dealing with COVID-19, Kavanaugh indicated, and
"those limits may be very strict," states cannot "impose strict limits
on places of worship and looser limits on restaurants, bars, casinos,
and gyms, at least without sufficient justification for the
differential treatment of religion" - which, in this case, the state
has not offered.

In late May, the Supreme Court - with Roberts again joining the four
more liberal justices - rejected a request by a church in southern
California for an order that would have allowed it to hold services.
The church in that case, South Bay United Pentecostal Church, argued
that state and county shutdown orders discriminated against houses of
worship by requiring them to remain closed while allowing retail
stores, offices, restaurants and schools to remain open. Kavanaugh
dissented from that order, but in his dissent on Friday in the Nevada
case he noted that, in any event, the Calvary Chapel case is different
"because it involves bars, casinos, and gyms."

This post was originally published at Howe on the Court.

Posted in Featured, Emergency appeals and applications

Recommended Citation: Amy Howe, Justices decline to intervene in
dispute over Nevada COVID-19 restrictions, SCOTUSblog (Jul. 24, 2020,
10:55 PM),
https://www.scotusblog.com/2020/07/justices-decline-to-intervene-in-dis
pute-over-nevada-covid-19-restrictions/

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Invisible majorities: Counting to nine votes in per curiam cases - Josh
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Opponents of border wall ask court to lift year-old stay and halt
construction - Amy Howe
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lks-end-of-term-review-with-lyle-denniston

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Merits Case Pages and Archives
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Term Snapshot
* This Week at the Court
The justices are on their summer recess.
* Major Cases
+ Chiafalo v. Washington
+ Trump v. Mazars USA, LLP
+ Trump v. Vance
+ Little Sisters of the Poor Saints Peter and Paul Home v.
Pennsylvania
+ Seila Law LLC v. Consumer Financial Protection Bureau
+ June Medical Services LLC v. Russo
+ Espinoza v. Montana Department of Revenue
+ Department of Homeland Security v. Regents of the University
of California
+ Bostock v. Clayton County, Georgia
see all this term's cases >>
* Statistical Snapshot

Cases granted for this term 71
Cases argued 58
Cases decided 57
Summary reversals 6
Cases granted for next term 20
see all >>
* Recent Special Features
Symposium before oral argument in Trump v. Vance and Trump v.
Mazars
Symposium before oral argument in June Medical Services v. Russo
Symposium before oral argument in Seila Law v. Consumer Financial
Protection Bureau
Symposium before oral argument in Espinoza v. Montana Department of
Revenue
Symposium before oral argument in Kelly v. United States
2010-2019 Decade in review
Symposium before oral argument in New York State Rifle & Pistol
Association v. City of New York
Symposium before oral argument in DHS v. UC Regents, Trump v. NAACP
and McAleenan v. Vidal
Symposium before oral argument in Bostock v. Clayton County and
Harris Funeral Homes v. EEOC
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At a Glance
* 5-4 Lineups
* Voting Breakdown
* Majority Authorship

* Calendar: July 2020
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July 2020

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* Videos see all
16th Annual Robert H. Jackson Lecture
On Monday, July 6, 2020, Ruth Marcus of the Washington Post
delivered the Chautauqua Institution's 16th annual Robert H.
Jackson Lecture on the Supreme Court.

Awards
* Peabody Award

Awarded the Peabody Award for excellence in electronic media.

Awarded the Peabody Award for excellence in electronic media.
* Sigma Delta Chi

Sigma Delta Chi

Awarded the Sigma Delta Chi deadline reporting award for online
coverage of the Affordable Care Act decision.
* National Press Club Award

National Press Club Award

Awarded the National Press Club's Breaking News Award for coverage of
the Affordable Care Act decision.
* Silver Gavel Award

Silver Gavel Award

Awarded the Silver Gavel Award by the American Bar Association for
fostering the American public's understanding of the law and the legal
system.
* American Gavel Award

American Gavel Award

Awarded the American Gavel Award for Distinguished Reporting About the
Judiciary to recognize the highest standards of reporting about courts
and the justice system.
* Webby Award

Webby Award

Awarded the Webby Award for excellence on the internet.

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