Jim Hartman: Freedom of Religion v. Sisolak

Governor Sisolak’s draconian “nonessential” business shutdown order of March 18 resulted in the highest state unemployment in U.S. history.

In April, the first full month of shutdown, Nevada’s unemployment rate was 28.2% — highest of any state since modern recordkeeping began in 1976. It was worse than the Great Depression levels in 1933 (25%).

Nevada’s highest unemployment rate in the nation persisted in May (25.3%), easing slightly in June (15.0%). That’s still well-above the national average (11.1%) and fourth highest in the country.

Nevada’s state unemployment system was overwhelmed with an historic number of people seeking assistance. The on-line DETR system crashed and the phone system was full nonstop.

More than 650,000 applications were submitted for unemployment benefits. While a majority of eligible claimants were paid, tens of thousands went unpaid. The new DETR director resigned on June 19 after only seven weeks on the job — the target of threats over benefit payment delays.

Sisolak’s statewide shutdown order was widely criticized as arbitrary, contradictory-- and discriminatory.

For example, his directive kept child care centers open, but closed schools. It allowed operation of completely enclosed public buses but banned riding two to a golf cart on an outdoor golf course. Picking up a six pack of beer at a convenience store was permitted, but going into a discount liquor store for a six pack was not allowed.

Claiming virtually unbounded power to restrict constitutional rights during the COVID-19 pandemic, Sisolak issued a directive on May 28 that severely limits attendance at religious services.

A church, synagogue, or mosque, regardless of its size may not admit more than 50 persons, but casinos, restaurants, bars, breweries, bowling alleys and gyms may admit 50% of their maximum occupancy. In the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

Calvary Chapel Dayton Valley has legally challenged the Sisolak directive citing the Constitutional guarantee of the free exercise of religion.

The Lyon County church wishes to host worship services for about 90 congregants, amounting to 50% of its fire-code capacity. In conducting these services, Calvary Chapel plans to take many precautions that go beyond anything the state requires.

In addition to adhering to proper social distancing protocols and mask wearing, the church intends to cut the length of services in half, sanitize the church between services and take other measures that are “equal to or more extensive than those recommended by the CDC.”

Yet hosting this type of service would violate Sisolak’s phase-two directive, which limits indoor worship services to “no more than 50 persons.” Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they may exceed, and in some cases far exceed, the 50-person limit imposed on places of worship.

Citing this disparate treatment, Calvary Chapel brought suit in Federal Court seeking an injunction allowing it to conduct services, in accordance with its plan. The District Court and the Ninth Circuit Court of Appeals denied Calvary’s application for an injunction. On July 24 the Supreme Court did as well.

Chief Justice Roberts sided with four liberal justices in denying the request without explanation. Three justices authored strongly worded dissents.

Justices Alito and Kavanaugh wrote, “the idea that allowing Calvary Chapel to admit 90 worshippers present a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow.”

Justice Gorsuch offered a compelling one paragraph dissent:

“In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Amen.

Jim Hartman is an attorney residing in Genoa, NV. E-mail address lawdocman1@aol.com.