bible and of gathering together for prayer and worship and to the church meeting the spiritual needs is no less essential meeting physical needs such as food and water and while the state may disagree the free exercise clause does not permit t state to make such value judgements coverage chapel has endured the state's discriminatory treatment for nearly ten months that's nearly forty weeks of worship services that have been either completely banned or subject to much limited numbers in size of attenders and when the state st shut down all worship services it allowed to stay open what is deemed to be essential businesses that included dozens of retail businesses manufacturing plants public transportation and the like and a few months later when the state did open up religious services it limited them to less than ten people at a time that's similar to the cal to the roman catholic diocese recent opinion but it allowed at the same time retail businesses including cannabis stores at fifty percent for usage and manufacturing plants at only social distancing limits and then after but i don't want to i don't want to interrupt you but what you're saying here with this is what you've done in your universe of comparable uses as this court is aware there's been a debate across the country over what is a proper comparable use is a laundromat is a liquor store is a big box store what roman catholic diocese did it recognize once and for all that these uses were indeed similar to religious worship services and house of worship what's interesting here is not only do we have those similar uses we do have better treatment of liquor stores and retail businesses but we also have a much stronger comparative years we have the casinos we have the restaurants the bars the gyms and those type of facilities so i think the short answer i think i think you would agree that due in part i don't here's what i mean by that religious religious animus is enough to bring it up to strict scrutiny although i don't think it is required at the core in roman catholic diocese notice there was probably some targeting some hostility but it set that aside and said regardless even if we don't find that there's still a violation for being not neutral or not generally applicable and your honor if we look to look to me that that your honor mentioned it was looking at analogous conduct also the hostility in that case was only joined by two justices it was not a majority opinion and so it looked at the analogous conduct of killing and what it said was well if you kill an animal in hunting or use a restaurant that would be permissible but if you kill different animal sacrifice that would not be so the neutral in generally a clickable comparison if you will i think is similar to what was done in smith and similar to what was said in the to me but i think what the roman catholic diocese did was a couple things number one it reiterated that standard but it expanded the i guess the universe of analogous conduct in these type of cases in coded cases and not only are the uses that we've been saying are similar you know the restaurants in the bars and in the gym similar the st supreme court majority opinion in these types of cases and so a lot of people were citing to south bay which was a concurrence by the chief there was no majority opinion there the important part about roman catholic diocese is that was the st supreme given that yours is two hundred and twenty five percent of two hundred would obviously be fifty who's treated worse i mean who is treated better rather well who is treated better our casinos they have in fact i'll go through the list but all of the other uses under directive twenty one have a fifty percent usage with no hard cap and i'm sorry let me let me ask a better question who's treated better under the directive that's currently fact all all retail businesses are treated better the same types of businesses and our our our retail business has treated better given that you were on fire code capacities two hundred because they're allowed to have fifty percent without any hard cap so for example if you have a store if you have a restaurant you have a big box store that was mentioned in roman catholic diocese big box or big b got the right that's correct except for there's no hard cap even under their current directive thirty five dollars all of those uses are still treated better because there is no hard cap so if you have a restaurant if you have a casino a casino that holds can still have hundreds of thousands of people so the differential treatment is the fact that there's a percentage basis but there's a hard cap with churches but no hard cap with with any of the other uses and i think that's the violation here because they're not treated the same  and found not to be moot already in this case which was a correct ruling is that directive twenty one dollars is being challenged in fact if you look at roman catholic diocese the directive that they challenged was already changed at the time of the hearing but the directive that the court ruled upon was the original one that was challenged and what the court said which is which applies here is that the case is not lose because the state can easily go back to it and that's exactly what i just saw for our purposes let's just assume argue and  was we have to go to town or we've been in a position to evaluate any changes that the governor's office in the direct report should rule on directive twenty one because that's what's been challenge here and it's not moot the court should either issue their from an injunction or send it back down instructing the lower court to issue the primary injunction and the reason for that is the question is are there putting junction standards satisfied now to this court and the answer is they clearly are based on roman catholic diocese because it's a legal question as to when you treat all these other sex of the uses better you're violating the facts the size clause because it's not neutral and generally applicable even the minimum requirement of neutrality is t to treat us no worse than casinos i would understand that but you want to go beyond that is it treatise no worse than anybody that is here so that as long as you allow it as warehouse in the world to be unlimited d you have to allow the churches to be unlimited have a little more trouble with that because in your as i understood it what they did was simply it took them back to a an area in the yellow which the churches were willing to live with they didn't want to live with the red and orange zones so in your case is there any limitation you're willing to live with and if so which one and why absolutely the st thing i'll say is we are not challenging any of the mask wearing distancing and sanitizing i just want to make that clear  church is only challenging the numerical limit and what the court did in roman catholic diocese it didn't put a number and what it said was when you treat houses of worship worse than comparable secular uses that violates the pixel size clause in this case because we're challenging directive twenty one i wouldn't just name a casino or particularly use although we can give examples and we have them so what i would say under directive twenty one dollars the church should be allowed fifty percent usage because that you can list the uses so fifty percent use is what i would add is per room because you have movie theaters you have schools that are allowed that kept her room where the church is only allowed a cap for one part of their building it's not their pray to peru so that's  yes your honor the court only said that the restriction in new york of ten people in the red zones and twenty five people in the orange zones was more restrictive restrictive than fifty people here and one hundred people in south bay that's true as a matter of fact so it was more restrictive that's all the court said in the foot no what i would add here is that although we have fifty people that are allowed in the church casinos are allowed thousands of restaurants and bars are allowed hundreds so in comparison it is restrict parody and seriousness of the public night being read what we're dealing with here is whether the citizens who are acted by the direct issue by the governor's office are being treated equally or at least in how the supreme court treated our misra church where in cheer one counties which your honor is more familiar with exactly than i am but sure why that is a bit of a misnomer as almost the entire every business in the data currently but what about the cap so i think my understanding is my colleagues feel differently and we're reviewing direct you want not thirty baht you disagree with that i don't disagree that attractive twenty one is what what provisions of directive twenty one dollars which is not now in force with regard to which a preliminary injunction should be granted but now what since force as a matter of fact no one disputes it is directive thirty five dollars but if we find that what's in twenty one dollars doesn't pass strict scrutiny or doesn't appear to pass trix scrutiny what in the state of nevada as view should we do in terms of our order opposed to there or whatever one paragraph or two sentence order in the actual decision they wrote they enjoined what was going on in new york so your view is that if we find directive twenty one not asking strict scrutiny we should do what they did and the california case and just simply remand this to the district court  determination in light of the catholic diocese case which i'm sure the district court wouldn't spank us akam direction but that's that's view of what we should do yes that is that is my view of what should be done that is how the supreme court as well is treated as new decision roman catholic in terms of how it's address subsequent cases involving same issues so if i could they cue back to thirty five in an argument that you seem to be about to make say well i mean thirty five doesn't really hurt these folks because twenty five percent is fifty and i was going to say if that's the case and then across the board why wouldn't you be willing to just take off the cap and treat them the same as the vast majority of businesses at twenty five percent or if you went back to fifty percent at twenty five percent and no cap you're right dayton valley would be in the same position but they would be mostly maybe other churches that want a little bit lower but can you give me some specifics other than just like in the power why you wouldn't say give them the same capacity limits with no hard as other roughly comparable businesses which you're really doing almost all of them right except for these there that is if your implicit assumption is that twenty five percent capacity churches and synagogues are in some way you know closer together that people in that record here in the same sort of way as what was addressed in romans outside counsel as the attorney for the state of nevada give me your best argument as you are here today to w for churches synagogues mosques and other houses of worship they have the lesser and all these other entities and organizations  aquariums for verity of other things don't have the lesser so explain to me your best argument here as to why that is an acceptable limit for houses of worship but not for all the rest of these under directive thirty five that don't have the last or with regards interacting twenty one my question is thirty five my question is as to thirty five the record in terms of is the core around you look in terms of comparable simply number alone or to look at the overall directive itself in terms of the increase in orphan ability the casinos have increased regular restrictions in terms of the additional specific health training for its employees in terms of having open testing on signs having nineteen isolation abilities or people and a different party that determination prior to and and frankly to answer i think just as then it's earlier question there is no justification here the sheriff acknowledges the government officials may need to make difficult decisions when faced with a public health crisis but since the onset of the public health crisis earlier this year this year as steadfastly refused to enforce the governor's directives for three important reasons st the directives are in question we share believe them to be facially unconstitutional which is consistent with what i think the roman catholic diocese case holds and where does or should go aside from the governor saying he limitless emergency powers the open discrimination against places of worship and those resemble to exercise their faith raised serious st amendment issues this year understand the gatherings are concerned with trying to stop the spread of the virus however the rights of the constitution are far from non essential under severe restrictions on places of worship or simply in japan animal with the lesser restrictions on businesses unilaterally deemed essential as i understand the sheriff's position in the brief if we think the governor is wrong but don't issue any injunction that stops the surer from doing his job sheriff and the county commissioners aligned johnny there are accountable as elected officials to those residents those residents don't get a chance there but really doesn't count when it comes to voting for the governor ridge who d v d s who is responsible to them is a local officials the sheriff and the yes even looking at directive thirty five dollars which is not at issue it still violates the church's rights because retail businesses are allowed a fifty percent with no chapter and under roman catholic diocese those are proper comparative be that it violates the free exercise clause to treat such to their uses better than religious uses i would go on to say that what we're looking at is directive twenty one dollars and that a fifty percent cap limit with no cap per room secular that right yes that is correct i think that's what roman catholic diocese tells us and we know what the couple uses are in that case we tell businesses liquor stores laundromats we also have here restaurants bars casinos and similar that if the state decided that all retail business is all the ones we've named if you know that bars restaurants are allowed to present that should be the same as churches without a hard cap that doesn't apply to everybody else so casinos mean you know business is up fifty instead enforcing directive thirty five dollars i mean how exactly would that type of injunction work with regard to providing notice to the state of what they can and can't do if the governor is proceeding right now on thirty five would this be these are what are in effect if you ever try to reinstate twenty one or with this applied to your unsourced minutes thirty five also even though the terms there are different in your view hour would that affect the governor trying to enforce thirty five i think it would apply the same because the court would be giving the principle that whatever sex so whatever directive comes now or in the future the principle for the governor is however you treat retail businesses restaurants casinos in the future you have to treat churches the same we know in the director thirty five dollars retail business is around fifty percent so that same ruling under directive twenty one dollars would guide the governor under directive understand it under thirty five restaurants bars casinos that centra over twenty five percent of it is it is retail businesses apparently which you know could be i take it is largely or significantly