Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 1 of 7
United States District Court District of Nevada (Reno)
CIVIL DOCKET FOR CASE #: 3:20−cv−00303−RFB−VCF

APPEAL

Calvary Chapel Dayton Valley v. Sisolak et al Assigned to: Judge Richard F. Boulware, II Referred to: Magistrate Judge Cam Ferenbach Case: 2:20−cv−00907−RFB−VCF Case in other court: 9th Circuit, 20−16169 Cause: 42:1983 Civil Rights Act Plaintiff
Calvary Chapel Dayton Valley

Date Filed: 05/22/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Kristen K Waggoner 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: kwaggoner@adflegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David A Cortman Alliance Defending Freedom 1000 Hurricane Shoals Rd NE Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@adflegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jason D. Guinasso 500 Damonte Ranch Parkway, Suite 980 Reno, NV 89521 (775) 853−8746 Fax: (775) 201−9611 Email: jguinasso@hutchlegal.com ATTORNEY TO BE NOTICED
Jeremiah Galus Alliance Defending Freedom 15100 N. 90th St SCOTTSDALE, AZ 85260−2901 480−444−0020 Fax: 480−444−0028 Email: jgalus@ADFlegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan J Tucker Alliance Defending Freedom 15100 N. 90th St SCOTTSDALE, AZ 85260−2901 480−444−0020 Fax: 480−444−0028 Email: rtucker@adflegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 2 of 7

V. Defendant Steve Sisolak in his official capacity as Governor of Nevada
Defendant Aaron Ford in his official capacity as the Nevada Attorney General
Defendant Frank Hunewill in his official capacit as Sheriff of Lyon County

represented by Craig A. Newby Office of the Attorney General 100 N. Carson Street Carson City, NV 89701 (775) 684−1206 Email: cnewby@ag.nv.gov ATTORNEY TO BE NOTICED
represented by Craig A. Newby (See above for address) ATTORNEY TO BE NOTICED
represented by Craig R. Anderson Marquis & Aurbach 10001 Park Run Drive Las Vegas, NV 89145 702−382−0711 Fax: 702−382−5816 Email: canderson@marquisaurbach.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian R. Hardy Marquis Aurbach Coffing 10001 Park Run Drive Las Vegas, NV 89145 702−382−0711 Fax: 702−382−5816 Email: bhardy@maclaw.com ATTORNEY TO BE NOTICED

Date Filed 05/22/2020
05/22/2020 05/22/2020

# Docket Text
1 COMPLAINT against All Plaintiffs (Filing fee $400 receipt number 0978−6015961) by Calvary Chapel Dayton Valley. Proof of service due by 8/20/2020. (Attachments: # 1 Index Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Civil Cover Sheet, # 13 Summons Summons− Aaron Ford, # 14 Summons Summons− Steve Sisolak, # 15 Summons Summons− Frank Hunewill) (Guinasso, Jason)
NOTICE of Certificate of Interested Parties requirement: Under Local Rule 7.1−1, a party must immediately file its disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court. (Entered: 05/22/2020)
Case randomly assigned to District Judge Larry R. Hicks and Magistrate Judge Carla Baldwin. (WJ) (Entered: 05/22/2020)
2 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 11−2. Counsel Kristen K. Waggoner to comply with completion and filing of the Verified Petition and Designation of Local Counsel. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov.
Upon approval of the Verified Petition, counsel is required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic

Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 3 of 7

05/22/2020
05/22/2020
05/22/2020
05/22/2020 05/26/2020 05/28/2020 05/28/2020 05/28/2020 05/28/2020

service of documents. Please visit the Court's website www.nvd.uscourts.gov to register Attorney. Verified Petition due by 6/5/2020. (no image attached) (WJ) (Entered: 05/22/2020)
3 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 11−2. Counsel Ryan J. Tucker to comply with completion and filing of the Verified Petition and Designation of Local Counsel. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov.
Upon approval of the Verified Petition, counsel is required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of documents. Please visit the Court's website www.nvd.uscourts.gov to register Attorney. Verified Petition due by 6/5/2020. (no image attached) (WJ) (Entered: 05/22/2020)
4 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 11−2. Counsel Jeremiah Galus to comply with completion and filing of the Verified Petition and Designation of Local Counsel. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov.
Upon approval of the Verified Petition, counsel is required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of documents. Please visit the Court's website www.nvd.uscourts.gov to register Attorney. Verified Petition due by 6/5/2020. (no image attached) (WJ) (Entered: 05/22/2020)
5 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 11−2. Counsel David A. Cortman to comply with completion and filing of the Verified Petition and Designation of Local Counsel. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov.
Upon approval of the Verified Petition, counsel is required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of documents. Please visit the Court's website www.nvd.uscourts.gov to register Attorney. Verified Petition due by 6/5/2020. (no image attached) (WJ) (Entered: 05/22/2020)
6 CERTIFICATE of Interested Parties by Calvary Chapel Dayton Valley. There are no known interested parties other than those participating in the case (Guinasso, Jason) (Entered: 05/22/2020)
7 SUMMONSES ISSUED as to All Defendants re ECF No. 1 Complaint. (Attachments: # 1 Summons Governor Steve Sisolak, # 2 Summons Sheriff Frank Hunewill) (KR) (Entered: 05/26/2020)
8 First AMENDED COMPLAINT against All Defendants by Calvary Chapel Dayton Valley. No changes to parties. (Attachments: # 1 Index Index of Exhibits to Amended Complaint, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Exhibit Exhibit 13, # 15 Exhibit Exhibit 14) (Guinasso, Jason) (Entered: 05/28/2020)
9 Emergency MOTION for Temporary Restraining Order by Plaintiff Calvary Chapel Dayton Valley. (Attachments: # 1 Declaration Declaration of G. Leist, # 2 Declaration Declaration of J. Guinasso, # 3 Proposed Order Proposed Order) (Guinasso, Jason) (Entered: 05/28/2020)
10 MOTION/VERIFIED PETITION for Permission to Practice Pro Hac Vice by David A. Cortman and DESIGNATION of Local Counsel Jason D. Guinasso (Filing fee $ 250 receipt number 0978−6021336) by Plaintiff Calvary Chapel Dayton Valley. (Guinasso, Jason) (Entered: 05/28/2020)
11 MOTION/VERIFIED PETITION for Permission to Practice Pro Hac Vice by Jeremiah Galus and DESIGNATION of Local Counsel Jason D. Guinasso (Filing fee $ 250 receipt number 0978−6021364) by Plaintiff Calvary Chapel Dayton Valley. (Guinasso, Jason) (Entered: 05/28/2020)

Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 4 of 7

05/28/2020 05/28/2020 05/28/2020
05/28/2020 05/29/2020 05/29/2020

12 MOTION/VERIFIED PETITION for Permission to Practice Pro Hac Vice by Kristen K. Waggoner and DESIGNATION of Local Counsel Jason D. Guinasso (Filing fee $ 250 receipt number 0978−6021380) by Plaintiff Calvary Chapel Dayton Valley. (Guinasso, Jason) (Entered: 05/28/2020)
13 MOTION/VERIFIED PETITION for Permission to Practice Pro Hac Vice by Ryan J. Tucker and DESIGNATION of Local Counsel Jason D. Guinasso (Filing fee $ 250 receipt number 0978−6021402) by Plaintiff Calvary Chapel Dayton Valley. (Guinasso, Jason) (Entered: 05/28/2020)
14 MINUTE ORDER IN CHAMBERS of the Honorable Judge Larry R. Hicks on 5/28/2020. By Judicial Assistant: Elaine Muhlebach. With good cause appearing, the Honorable Judge Larry R. Hicks recuses himself in this action. IT IS ORDERED that this action is referred to the Clerk for random reassignment of this case for all further proceedings. (no image attached) (Copies have been distributed pursuant to the NEF − EM) (Entered: 05/28/2020)
15 CLERK'S NOTICE that this case is randomly reassigned to Chief Judge Miranda M. Du for all further proceedings. All further documents must bear the correct case number 3:20−cv−00303−MMD−CLB. (no image attached) (LE) (Entered: 05/28/2020)
16 ORDER − Emergency basis denied. Expedited briefing set re ECF No. 9 Motion : Response due by 6/2/2020. Reply due by 6/3/2020. A telephonic hearing will likely be scheduled for June 4, 2020, to the extent the Court determines a hearing is necessary. Signed by Chief Judge Miranda M. Du on 5/29/2020. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 05/29/2020)
17 STANDING ORDER.

This case has been assigned to the Honorable Miranda M. Du. Chief Judge Du's Civil Standing Order is posted on the U.S. District Court, District of Nevada public website and may be accessed directly via this hyperlink: www.nvd.uscourts.gov

05/29/2020
05/29/2020 05/29/2020 05/29/2020 05/29/2020 05/30/2020

(Copies have been distributed pursuant to the NEF − KO) (Entered: 05/29/2020)
18 CLERK'S NOTICE. Attorney Action Required to ECF No. 9 . Document was not filed pursuant to LR IC 2−2(b). For each type of relief requested or purpose, a separate document must be filed. Counsel is advised to refile ECF No. 9 and be in compliance with LR IC 2−2(b) and LR IC 2−2(c) by filing the Motion for Preliminary Injunction as a separate document. Counsel may use the same PDF files as used in ECF No. 9 . (no image attached) (WJ) (Entered: 05/29/2020)
19 Emergency MOTION for Preliminary Injunction re 9 Motion for TRO, by Plaintiff Calvary Chapel Dayton Valley. Responses due by 6/12/2020. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Proposed Order) (Guinasso, Jason) (Entered: 05/29/2020)
20 Emergency MOTION for Reconsideration re 9 Motion for TRO, 19 Motion for Preliminary Injunction by Plaintiff Calvary Chapel Dayton Valley. Responses due by 6/12/2020. (Attachments: # 1 Index, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5) (Guinasso, Jason) (Entered: 05/29/2020)
21 Emergency MOTION for Reconsideration re 9 Motion for TRO, 19 Motion for Preliminary Injunction by Plaintiff Calvary Chapel Dayton Valley. Responses due by 6/12/2020. (Attachments: # 1 Index, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5) (Guinasso, Jason) (Entered: 05/29/2020)
22 RESPONSE to 20 Motion for Reconsideration, by Defendants Aaron Ford, Steve Sisolak. Replies due by 6/5/2020. (Newby, Craig) (Entered: 05/29/2020)
23 ORDER denying 20 , 21 Motion for Reconsideration. Signed by Chief Judge Miranda M. Du on 5/29/2020. (Copies have been distributed pursuant to the NEF − KO) (Entered: 05/30/2020)

Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 5 of 7

05/30/2020 05/31/2020
05/31/2020
05/31/2020
05/31/2020
06/02/2020 06/02/2020 06/02/2020 06/02/2020 06/02/2020
06/03/2020

24 ORDER. Case reassigned to Judge Richard F. Boulware, II and Magistrate Judge Cam Ferenbach for all further proceedings. All further documents must bear the correct case number 3:20−cv−00303−RFB−VCF. Signed by Chief Judge Miranda M. Du on 5/29/2020. (Copies have been distributed pursuant to the NEF − KO) (Entered: 05/30/2020)
25 ORDER approving ECF No. 10 Verified Petition for Permission to Practice Pro Hac Vice of Attorney David A. Cortman for Plaintiff Calvary Chapel Dayton Valley and approving Designation of Local Counsel Jason D. Guinasso. Signed by Judge Richard F. Boulware, II on 5/31/2020. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − DRM) (Entered: 06/01/2020)
26 ORDER approving ECF No. 11 Verified Petition for Permission to Practice Pro Hac Vice of Attorney Jeremiah Galus for Plaintiff Calvary Chapel Dayton Valley and approving Designation of Local Counsel Jason D. Guinasso. Signed by Judge Richard F. Boulware, II on 5/31/2020. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − DRM) (Entered: 06/01/2020)
27 ORDER approving ECF No. 12 Verified Petition for Permission to Practice Pro Hac Vice of Attorney Kristen K. Waggoner for Plaintiff Calvary Chapel Dayton Valley and approving Designation of Local Counsel Jason D. Guinasso. Signed by Judge Richard F. Boulware, II on 5/31/2020. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − DRM) (Entered: 06/01/2020)
28 ORDER approving ECF No. 13 Verified Petition for Permission to Practice Pro Hac Vice of Attorney Ryan J. Tucker for Plaintiff Calvary Chapel Dayton Valley and approving Designation of Local Counsel Jason D. Guinasso. Signed by Judge Richard F. Boulware, II on 5/31/2020. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − DRM) (Entered: 06/01/2020)
29 RESPONSE to 9 Motion for TRO, 19 Motion for Preliminary Injunction by Defendants Steve Sisolak, Aaron Ford. Replies due by 6/9/2020. (Attachments: # 1 Exhibit) (Newby, Craig) (Entered: 06/02/2020)
30 NOTICE of Appearance by attorney Brian R. Hardy on behalf of Defendant Frank Hunewill. (Hardy, Brian) (Entered: 06/02/2020)
31 CERTIFICATE of Interested Parties by Frank Hunewill. There are no known interested parties other than those participating in the case (Hardy, Brian) (Entered: 06/02/2020)
32 JOINDER to 29 Response by Defendant Frank Hunewill. (Hardy, Brian) Modified on 6/3/2020 add link to 9 19 (WJ). (Entered: 06/02/2020)
33 MINUTE ORDER IN CHAMBERS of the Honorable Richard F. Boulware, II on 6/2/2020. If the Plaintiff is seeking alternative or modified relief beyond that requested in its Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 19), IT IS ORDERED that the Plaintiff must file a supplement to the Motion by June 3, 2020. The Defendants shall make a special appearance and file its response to the supplement and Motion by June 7, 2020. IT IS FURTHER ORDERED that a hearing on the Preliminary Injunction Motion shall be held by videoconference on June 9, 2020 at 11:00 AM in LV Courtroom 7C before Judge Richard F. Boulware, II. The Court shall issue a minute order with the details of this videoconference.(no image attached) (Copies have been distributed pursuant to the NEF − BEL) (Entered: 06/02/2020)
34 CLERK'S NOTICE Regarding Local Rule IC 2−2(d). ECF No. 32 was not filed pursuant to LR IC 2−2(d). Documents must be linked to the document to which they pertain in the electronic filing system. The Clerk has modified the entry to properly establish the docket−entry relationship. Attorney is advised to properly link all further

Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 6 of 7

06/03/2020 06/03/2020 06/03/2020 06/04/2020
06/07/2020 06/08/2020 06/09/2020
06/10/2020
06/11/2020 06/11/2020

filed documents. (no image attached) (WJ) (Entered: 06/03/2020)
35 First MOTION to Extend Time (First Request) re 16 Order, 33 Minute Order,,,, Terminate Deadlines/Hearings,,,, Set/Reset Deadlines & Hearings,,, by Plaintiff Calvary Chapel Dayton Valley. (Tucker, Ryan) (Entered: 06/03/2020)
36 Submission of PROPOSED ORDER on 35 Motion to Extend/Shorten Time by Plaintiff Calvary Chapel Dayton Valley. (Tucker, Ryan) (Entered: 06/03/2020)
37 ORDER Granting Plaintiff's MOTION for Extension of time (ECF No. 35. Plaintiff shall file its supplement in support of its 19 Emergency Motion for Preliminary Injunction by June 4, 2020. Signed by Judge Richard F. Boulware, II on 6/3/2020. (Copies have been distributed pursuant to the NEF − BEL) (Entered: 06/03/2020)
38 SUPPLEMENT to 19 Motion for Preliminary Injunction by Plaintiff Calvary Chapel Dayton Valley (Attachments: # 1 Index, # 2 Exhibit 15, # 3 Exhibit 16, # 4 Exhibit 17, # 5 Exhibit 18, # 6 Exhibit 19, # 7 Exhibit 20, # 8 Exhibit 21, # 9 Exhibit 22, # 10 Exhibit 23, # 11 Exhibit 24, # 12 Exhibit 25, # 13 Exhibit 26, # 14 Exhibit 27, # 15 Exhibit 28, # 16 Exhibit 29, # 17 Exhibit 30, # 18 Exhibit 31, # 19 Exhibit 32, # 20 Exhibit 33, # 21 Exhibit 34, # 22 Exhibit 35, # 23 Exhibit 36, # 24 Exhibit 37, # 25 Exhibit 38, # 26 Exhibit 39, # 27 Exhibit 40, # 28 Exhibit 41, # 29 Exhibit 42, # 30 Exhibit 43, # 31 Exhibit 44, # 32 Exhibit 45) (Tucker, Ryan) (Entered: 06/04/2020)
39 RESPONSE to 38 Supplement,, by Defendant Steve Sisolak. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Newby, Craig) Modified on 6/8/2020 add link to 19 (WJ). (Entered: 06/07/2020)
40 CLERK'S NOTICE Regarding Local Rule IC 2−2(d). ECF No. 39 was not filed pursuant to LR IC 2−2(d). Documents must be linked to the document to which they pertain in the electronic filing system. The Clerk has modified the entry to properly establish the docket−entry relationship. Attorney is advised to properly link all further filed documents. (no image attached) (WJ) (Entered: 06/08/2020)
45 MINUTES OF PROCEEDINGS − Motion Hearing re: Preliminary Injunction and Temporary Restraining Order on 6/9/2020 before the Honorable Richard F. Boulware, II. Crtrm Administrator: Blanca Lenzi; Pla Counsel: Ryan Tucker, Esq., Jason Guinasso, Esq.; Def Counsel: Craig Newby, Deputy, S.G., Brian Hardy, Esq.; Court Reporter: Patty Ganci; Time of Hearing: 11:12 AM − 11:58 AM; Courtroom: 7C.The court notes that the hearing is consolidated as counsel for parties in both cases are present with case 2:20−cv−00907−RFB−VCF preceding this instant matter. The Court makes preliminary statements and hears representations from the parties regarding 9 Emergency Motion for Temporary Restraining Order and 19 Emergency Motion for Preliminary Injunction. For the reasons stated on the record and further expounded upon in a forthcoming written order, the Court denies the motions without prejudice. A written order will issue. (no image attached) (Copies have been distributed pursuant to the NEF − BEL) (Entered: 06/14/2020)
41 MOTION for Leave to File Post−Hearing Supplemental Brief re 19 Motion for Preliminary Injunction by Plaintiff Calvary Chapel Dayton Valley. (Attachments: # 1 Supplement Post−Hearing Brief, # 2 Index to Post Hearing Brief Exhibits, # 3 Exhibit 46 to Post−Hearing Brief, # 4 Exhibit 47 to Post−Hearing Brief, # 5 Exhibit 48 to Post−Hearing Brief, # 6 Exhibit 49 to Post−Hearing Brief, # 7 Exhibit 50 to Post−Hearing Brief, # 8 Exhibit 51 to Post−Hearing Brief, # 9 Exhibit 52 to Post−Hearing Brief, # 10 Exhibit 53 to Post−Hearing Brief, # 11 Exhibit 54 to Post−Hearing Brief, # 12 Exhibit 55 to Post−Hearing Brief, # 13 Exhibit 56 to Post−Hearing Brief) (Tucker, Ryan) (Entered: 06/10/2020)
42 RESPONSE to 41 Motion for Leave to File Document,, by Defendants Steve Sisolak, Aaron Ford. Replies due by 6/18/2020. (Newby, Craig) (Entered: 06/11/2020)
43 ORDER − Plaintiff's Emergency Motion for Temporary Restraining Order and Emergency Motion for Preliminary Injunction (ECF Nos. 9 , 19 ) are DENIED.
The Motion for Leave (ECF No. 41 ) is DENIED without prejudice. The Court does grant Plaintiff leave to file a new subsequent Motion for Injunctive Relief in which it

Case: 3:20-cv-303 As of: 08/06/2020 01:03 PM PDT 7 of 7

06/14/2020
06/15/2020
06/15/2020 06/16/2020 06/16/2020 06/16/2020
06/17/2020 06/17/2020 06/18/2020 06/19/2020 06/19/2020 07/02/2020
07/24/2020

may provide more evidence for an as−applied challenge to the Emergency Directive. The Court finds that full briefing would be appropriate for consideration of any additional evidence presented by any party.
Signed by Judge Richard F. Boulware, II on 6/11/2020. (Copies have been distributed pursuant to the NEF − AB) (Entered: 06/12/2020)
44 TRANSCRIPT of Proceedings, held on 6/9/2020, Motion Hearing, before Judge Richard F. Boulware, II. Court Reporter: Patricia Ganci, PG@nvd.uscourts.gov. Any Redaction Request is due by 7/5/2020. Redacted Transcript Deadline is set for 7/15/2020. Release of the Transcript Restriction is set for 9/12/2020. Before release date, the transcript may be viewed at the court public terminal or purchased through the reporter. Transcript Order form is available on court website. After that date it may be obtained through the court reporter or PACER. (PG) (Entered: 06/14/2020)
46 NOTICE OF APPEAL as to 43 Order on Motion for Leave to File Document,,, Order on Motion for TRO,,, Order on Motion for Preliminary Injunction,,,,, by Plaintiff Calvary Chapel Dayton Valley. Filing fee $ 505, receipt number 0978−6044164. E−mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. (Attachments: # 1 Representation Statement) (Tucker, Ryan) (Entered: 06/15/2020)
47 MOTION and Memorandum in Support for an Injunction Pending Appeal by Plaintiff Calvary Chapel Dayton Valley. Responses due by 6/29/2020. (Attachments: # 1 Proposed Order) (Tucker, Ryan) (Entered: 06/15/2020)
48 FORMS − Designation of Transcripts and Transcript Order forms and instructions for ECF No. 46 Notice of Appeal. Forms may also be obtained on the Court's website at www.nvd.uscourts.gov. (Attachments: # 1 Transcript Order Form) (KR) (Entered: 06/16/2020)
49 USCA, Ninth Circuit Appellate Case Number 20−16169 assigned to ECF No. 46 Notice of Appeal. (DRM) (Entered: 06/16/2020)
50 MINUTE ORDER IN CHAMBERS of the Honorable Richard F. Boulware, II on 6/16/2020.IT IS ORDERED that Defendants must file a response to Plaintiff's Motion 47 in Support for an Injunction Pending Appeal by Wednesday, June 17th at 5:00 PM. (no image attached) (Copies have been distributed pursuant to the NEF − BEL) (Entered: 06/16/2020)
51 RESPONSE to 47 Motion by Defendant Frank Hunewill. Replies due by 6/24/2020. (Hardy, Brian) (Entered: 06/17/2020)
52 RESPONSE to 47 Motion by Defendant Steve Sisolak, Aaron Ford. Replies due by 6/24/2020. (Newby, Craig) (Entered: 06/17/2020)
53 REPLY to Response to 47 Motion by Plaintiff Calvary Chapel Dayton Valley. (Tucker, Ryan) (Entered: 06/18/2020)
54 TRANSCRIPT DESIGNATION by Plaintiff Calvary Chapel Dayton Valley re 46 Notice of Appeal, 44 Transcript,, 45 Preliminary/Permanent Injunction Hearing,,,,, Terminate Deadlines/Hearings,,,,. (Tucker, Ryan) (Entered: 06/19/2020)
55 ORDER denying Plaintiff's Motion for An Injunction. ECF No. 47 . Signed by Judge Richard F. Boulware, II on 6/19/2020. (Copies have been distributed pursuant to the NEF − BEL) (Copies have been distributed pursuant to the NEF − BEL) (Entered: 06/19/2020)
56 ORDER of USCA, Ninth Circuit, as to ECF No. 46 Notice of Appeal, filed by Calvary Chapel Dayton Valley. Appellant's emergency motion for injunctive relief pending appeal is denied. The previously established briefing schedule remains in effect. USCA Case Number 20−16169. (Copies have been distributed pursuant to the NEF − AB) (Entered: 07/02/2020)
57 NOTICE Letter from USSC to USCA dtd 7/24/2020. The application for injunctive relief presented to JUSTICE KAGAN and by her referred to the Court is denied. (Supreme Court No. 19A1070). USCA Case No. 20−16169. (LW) (Entered: 07/27/2020)

 
 Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 1 of 18

1 Jason D. Guinasso (SBN# 8478)

2

500 Damonte Ranch Pkwy, Suite 980 Reno, NV 89521

3

Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4 Kristen K. Waggoner (AZ Bar 032382)*
5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street Scottsdale, AZ 85260
8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*

12

ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE

13

Ste. D-1100 Lawrenceville, GA 30043

14 Telephone: (770) 339-0774

15 dcortman@ADFlegal.org *Pro hac vice application forthcoming
16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19 Plaintiff,
20
21 v.

22

STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his

23 official capacity as Attorney General of

24

Nevada; FRANK HUNEWILL, in his official capacity as Sheriff of Lyon County,

Case No.:
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

25

Defendants.

26

27

28

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 2 of 18

1

INTRODUCTION

2

1. This action challenges Governor Steve Sisolak’s emergency orders

3 prohibiting churches and other places of worship from holding in-person worship

4 services of ten or more people, even when such services could be held in accordance

5 with social distancing and public health guidelines (the “Church Gathering Ban”).

6

2. For over two months, Calvary Chapel Dayton Valley (the “Church”)

7 has been unable to hold an in-person worship service due to Covid-19 and the

8 Governor’s Church Gathering Ban. The Church has patiently waited for the

9 Governor to restore its First Amendment freedoms, trusting that the Governor

10 would prioritize constitutional rights and allow churches to resume in-person

11 worship services at the earliest opportunity.

12

3. But that trust has been broken. Instead of prioritizing religious

13 freedom, the Governor has moved “non-essential” secular businesses and activities

14 to the front of the line and pushed churches towards the back. Incredibly, the

15 Governor has allowed restaurants and food establishments to resume in-person, on-

16 site dining at 50% capacity, allowed all retail establishments to open at 50%

17 capacity, and has thrown open the doors of nail care salons, hair salons, and barber

18 shops—businesses that the Governor’s own orders say “promote extended periods of

19 public interaction where the risk of [Covid-19] transmission is high.” In addition,

20 there are numerous other exceptions to the Governor’s gathering restrictions.

21

4. Yet the Governor insists on maintaining the Church Gathering Ban,

22 refusing to allow churches and places of worship to open their doors to ten or more

23 people under any circumstance.

24

5. Regardless of the justifications the Governor may think he has for this

25 disparate treatment, they cannot survive constitutional scrutiny. Under the Free

26 Exercise Clause, a law is not generally applicable when it “fail[s] to prohibit

27 nonreligious conduct that endangers” the government’s interest “in a similar or

28

1

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 3 of 18

1 greater degree” than the prohibited religious conduct. Church of the Lukumi Babalu

2 Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993). That is exactly what the

3 exemptions under the Governor’s orders do.

4

6. Indeed, under the Governor’s orders, large numbers of people in Clark

5 County can gather for a similar amount of time as a church service at restaurants,

6 food establishments, non-essential retail establishments, nail salons, hair salons,

7 and barber shops, but it is illegal for the Church—which is located in rural Lyon

8 County—to hold in-person services with ten or more people.

9

7. This is unconstitutional, and it makes no sense. As of May 20, 2020,

10 Carson City Health and Human Services reports that Lyon County has only 16

11 active cases of Covid-19. See Lyon County Covid-19 Data, attached as Exhibit 1.

12 With a population of approximately 57,510, that means the per capita rate of active

13 Covid-19 infections in Lyon County is approximately 0.028%.

14

8. Consistent with its religious beliefs, the Church plans to resume in-

15 person worship services on Sunday, May 31, and has developed comprehensive

16 social distancing and health and safety protocols to govern those services. Despite

17 these health and safety measures, however, the Governor’s Church Gathering Ban

18 threatens the Church with criminal and civil penalties.

19

9. Without a temporary restraining order and injunction, the Church will

20 face criminal and civil penalties for assembling and worshipping God. A temporary

21 restraining order and injunction are therefore needed to preserve the Church’s

22 constitutional rights.

23

JURISDICTION AND VENUE

24

10. This civil rights action raises federal questions under the United

25 States Constitution, specifically the First and Fourteenth Amendments, and under

26 federal law, particularly 42 U.S.C. § 1983.

27

28

2

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 4 of 18

1

11. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and

2 1343.

3

12. This Court has authority to grant the requested declaratory relief

4 under 28 U.S.C. §§ 2201 and 2202, the requested injunctive relief under 28 U.S.C. §

5 1343, and reasonable attorney’s fees and costs under 42 U.S.C. § 1988.

6

13. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a

7 substantial part of the events or omissions giving rise to the claims occurred in this

8 district and Defendants reside in this district.

9

PARTIES

10

14. Calvary Chapel Dayton Valley (the “Church”) is a nonprofit church

11 organized exclusively for religious purposes within the meaning of § 501(c)(3) of the

12 Internal Revenue Code. The Church is in Dayton, Nevada (Lyon County).

13

15. Defendant Steve Sisolak is the Governor of Nevada. Governor Sisolak

14 is responsible for issuing and enforcing the Church Gathering Ban. He is sued in his

15 official capacity only.

16

16. Defendant Aaron Ford is Nevada’s Attorney General. Attorney General

17 Ford is authorized to enforce and prosecute violations of the Church Gathering Ban.

18 He is sued in his official capacity only.

19

17. Defendant Frank Hunewill is the Sheriff of Lyon County. As Sheriff of

20 Lyon County, Defendant Hunewill has the power, both personally and through his

21 subordinates, to enforce the Church Gathering Ban. He is sued in his official

22 capacity only.

23

FACTS

24

Calvary Chapel Dayton Valley

25

18. Calvary Chapel Dayton Valley has operated as a Christian church in

26 Dayton, Nevada since February 5, 2006.

27

28

3

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 5 of 18

1

19. The Church believes that the Bible is the inspired Word of God and

2 infallible rule of faith and practice.

3

20. Thus, the Bible is the foundation upon which the Church operates and

4 is the basis on which it is governed.

5

21. The Church believes, among other things, that the Bible commands

6 Christians to gather together in person for corporate prayer, worship, and

7 fellowship and that such assembly is necessary and good for the Church and its

8 members’ spiritual growth.

9

22. Consistent with that belief, the Church’s mission and purpose is: (1) to

10 continue steadfastly in the apostles’ doctrine and fellowship, in the breaking of

11 bread, and in prayers; (2) to worship God the Father, Son, and Holy Spirit; (3) to

12 build up the Church of Jesus Christ through the teaching of the Word of God and

13 the ministry of the Holy Spirit; and (4) to persuade men and women to repent and

14 confess Jesus Christ as Lord.

15

The Church’s Response to Covid-19

16

and Plan to Resume In-Person Services

17

23. In response to federal, state, and local guidance at the beginning of the

18 Covid-19 outbreak—but before any local or state order prohibited in-person

19 gatherings—the Church voluntarily adopted rigorous social distancing and health

20 safety measures for its services.

21

24. In fact, immediately after the Governor declared a state of emergency

22 on March 12, the Church took proactive steps for its upcoming March 15 services.

23

25. The Church disinfected frequently touched surfaces such as door

24 handles, chairs, and tables before and after services; made hand sanitizer available

25 in multiple locations throughout the building’s common areas; advised church

26 attendees to refrain from personal contact such as handshakes and hugs; instructed

27

28

4

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 6 of 18

1 those who felt sick or lived with someone who felt sick to stay home; and encouraged

2 online giving through the Church’s website, among other things.

3

26. And the next day, on March 16, 2020, the Church temporarily

4 suspended in-person worship services and began streaming its services online.

5

27. More than two months later, the Governor’s intervening Church

6 Gathering Ban has prevented the Church from resuming in-person worship

7 services.

8

28. Although the Church’s initial decision to temporarily suspend in-

9 person services was voluntary, and made in an abundance of caution given the

10 health and safety concerns at the time, the Church believes it is called to resume in-

11 person worship services, consistent with its religious beliefs about corporate prayer,

12 worship, and fellowship.

13

29. The Church sincerely believes that online services and drive-in

14 services do not meet the Bible’s requirement that the Church meet together in

15 person for corporate worship.

16

30. In addition, some of the Church’s parishioners do not have internet

17 access or the ability to participate in online services.

18

31. The Church thus plans to resume in-person worship services on May

19 31, 2020 (Pentecost Sunday), but the Church Gathering Ban makes such services

20 illegal and would subject the Church to possible criminal and civil penalties.

21

32. Before Covid-19, the Church’s two Sunday services could hold up to

22 200 people each.

23

33. The Church seeks to hold in-person services at 50% of its sanctuary’s

24 capacity while also providing for proper social distancing of at least six feet

25 separation between families and individuals, which would amount to approximately

26 90 people in a service.

27

28

5

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 7 of 18

1

34. In preparation for resuming in-person worship services, the Church

2 has adopted—and will follow—strict social distancing and health and safety

3 protocols.

4

35. These protocols include the following precautions:

5



Holding Sunday and Wednesday services;

6



Strictly limiting Sunday services to 45 minutes (as opposed to the

7

usual 90 minutes);

8



Holding up to three services each Sunday to guarantee adequate space

9

for social distancing at each service;

10



Providing ½ hour between services to allow for thorough cleaning and

11

sanitizing of sanctuary, hallways, bathrooms, and common surfaces;

12



Posting signs on walls and floors to direct traffic;

13



Posting signs on restroom doors limiting use to one person at a time;

14



Posting signs in the restrooms encouraging proper washing of hands;

15



Making hand sanitizer stations easily accessible to attendees;

16



Encouraging attendees to arrive no earlier than 25 minutes before

17

service;

18



Using parking attendants to direct cars to designated parking areas;

19



Directing all attendees to a designated entrance;

20



Directing attendees to sanctuary seating designed to provide 6-feet of

21

separation between families and individuals;

22



Ensuring that all traffic for each service will be in one direction by

23

using “first in, last out” model;

24



Advising attendees of proper social distancing protocols;

25



Encouraging attendees to bring and wear face coverings;

26



Requiring all servants greeting or directing attendees to wear face

27

coverings;

28

6

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 8 of 18

1



Prohibiting any handouts or items to be passed to attendees during

2

services;

3



Prohibiting snacks or coffee from being served;

4



Using prepacked Communion elements whenever served;

5



Directing attendees out of the building to the parking area at the end

6

of each service;

7



Instructing attendees to refrain from congregating in the building.

8

The Governor’s Orders

9

36. On March 12, 2020, Governor Sisolak declared a state of emergency in

10 response to the Covid-19 outbreak. See Declaration of Emergency, attached as

11 Exhibit 2.

12

37. Noting that the Nevada Constitution gives him “[t]he supreme

13 executive power of this State,” Governor Sisolak “direct[ed] all state agencies to

14 supplement the efforts of all impacted and threatened counties” and announced that

15 he would “perform and exercise such other functions, powers, and duties as are

16 necessary to promote and secure the safety and protection of the civilian

17 population.” Id.

18

38. Five days later, on March 17, 2020, Governor Sisolak held a press

19 conference and explained steps the State would be taking to mitigate the risks

20 associated with Covid-19. See Press Release (Mar. 17, 2020), attached as Exhibit 3.

21

39. While Governor Sisolak encouraged “faith leaders” during that press

22 conference “to find ways to deliver to your congregation without bringing them

23 together in person,” he assured them that he “cannot and will not say that places of

24 worship should be closed.” Id. at 4.

25

26

27

28

7

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 9 of 18

1

“Essential” and “Non-Essential” Businesses

2

40. Three days later, Governor Sisolak issued an order mandating the

3 closure of all “Non-Essential Businesses.” See Declaration of Emergency Directive

4 003, attached as Exhibit 4.

5

41. The Governor’s order defined “Non-Essential Businesses” to include,

6 among other things, businesses that “promote recreational social gathering

7 activities” and businesses that “promote extended periods of public interaction

8 where the risk of [Covid-19] transmission is high,” including “beauty shops, barber

9 shops, [and] nail salons.” Id., §§ 1, 2.

10

42. Likewise, the Governor’s order limited restaurants and food

11 establishments to “take-out, drive-through, curbside pickup, [and] delivery” service

12 and prohibited them from providing dine-in service to any customers. Id., § 3.

13

43. The Governor’s order did not close “Essential Licensed Business[es]”

14 but rather encouraged them “to continue operation.” Id., § 4.

15

44. In addition, the Governor’s order stated that “[t]he construction,

16 mining, manufacturing, and infrastructure sector labor force may continue

17 operations.” Id., § 6.

18

45. In connection with the Governor’s order, the Nevada Department of

19 Public Safety, Division of Emergency Management, adopted emergency regulations

20 further defining “essential” and “non-essential” businesses. See Emergency

21 Regulations, March 20, 2020, attached as Exhibit 5.

22

46. Businesses not delineated in the Governor’s order or in the emergency

23 regulations could continue operations if they could “implement social distancing

24 safeguards for the protection of their employees” and, “[t]o the extent practicable,

25 provide services without causing members of the Nevada general public to

26 congregate in a manner contrary to social distancing goals of a minimum of six feet

27 of separation for more than incidental contact.” Ex. 4, § 8.

28

8

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 10 of 18

1

47. Because neither the Governor’s order nor the emergency regulations

2 referenced churches or places of worship, they should have been allowed to continue

3 operations and in-person services.

4

The Church Gathering Ban

5

48. A few days later, Governor Sisolak issued another order—this time

6 forbidding the “general public” from “gather[ing] in groups of ten or more in any

7 indoor or outdoor area.” Declaration of Emergency Directive 007, § 1, attached as

8 Exhibit 6.

9

49. The Governor issued his stay-at-home order shortly thereafter. See

10 Declaration of Emergency Directive 010, attached as Exhibit 7.

11

50. And even though Governor Sisolak assured faith leaders that he would

12 not and could not close houses of worship, he imposed a Church Gathering Ban on

13 April 8, 2020, expressly prohibiting “[p]laces of worship” from “hold[ing] in-person

14 worship services where ten or more persons may gather.” Declaration of Emergency

15 Directive 013, § 4, attached as Exhibit 8.

16

51. Related guidance from the Governor’s office claimed that “this is not

17 yet the time to get people together to celebrate their faith” and that “nobody should

18 be physically attending in-person worship services.” Guidance: Directive 013 (Apr.

19 8, 2020), attached as Exhibit 9.

20

52. The Church Gathering Ban is indefinite, with the applicable order

21 stating that it will remain in place “for the remainder of the Declaration of

22 Emergency.” Ex. 8, § 4.

23

Secular Exceptions to the Gathering Bans

24

53. There are numerous secular exceptions to the Governor’s gathering

25 restrictions.

26

27

28

9

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 11 of 18

1

54. For one thing, the Governor’s ban on gatherings of ten or more people

2 does not apply to “the gathering of persons . . . working at or patronizing Essential

3 Licensed Businesses or providing essential services to the public.” Ex. 6, § 1.

4

55. Thus, ten or more people could—and still can—gather for an extended

5 period of time to, among other things, work at or patronize:

6



“Essential infrastructure operations,” including “airport[s]”;

7



“Businesses that ship or deliver goods directly to residences”;

8



“Banks and Financial Institutions”;

9



“Pawnbrokers”;

10



Businesses or entities that provide “social services for economically

11

disadvantaged individuals, vulnerable populations, or victims of

12

crime”;

13



“Laundromats and dry cleaners”;

14



“Warehouses and storage facilities”;

15



“Professional or technical services including legal, accounting, tax,

16

payroll, real estate, and property management services”;

17



“Child care facilities”; and

18



“Newspapers, television, radio, and other media services.”

19 Ex. 5 (NAC 414.XXX(1)).

20

56. What is more, Governor Sisolak’s recent order implementing “Phase

21 One” of the State’s reopening plan has exempted some “non-essential” businesses

22 and activities from the ban, allowing even more gatherings of ten or more people for

23 secular reasons. For example, the Governor’s “Phase One” order allows:

24



All restaurants and food establishments to resume onsite, in-person

25

dining—up to “50% of the maximum seating capacity under normal

26

circumstances”;

27



All retail businesses to reopen at 50% capacity;

28

10

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 12 of 18

1



Auto showrooms, furniture showrooms, home furnishing showrooms,

2

and appliance showrooms to reopen at 50% capacity;

3



Cannabis dispensaries to resume in-person sales; and

4



Nail care salons, hair salons, and barber shops to reopen.

5 Declaration of Emergency Directive 018, §§ 13, 15, 16, 17, 22, attached as Exhibit

6 10; see also Ex. 8, § 3.

7

57. By allowing restaurants, food establishments, nail care salons, hair

8 salons, and barber shops to reopen, the Governor has allowed businesses and

9 entities to reopen that the State previously determined “promote extended periods

10 of public interaction where the risk of [Covid-19] transmission is high.” Ex. 4, § 2.

11

58. Yet the Governor has refused to provide a similar accommodation to

12 churches and other places of worship.

13

59. Nor has the Governor given any indication of when churches could

14 expect to resume in-person services of ten or more people.

15

60. In fact, on May 14, 2020, nearly 200 hundred churches (including

16 Plaintiff) sent a letter to Governor Sisolak respectfully asking him to lift the ban on

17 in-person worship services. At a press conference the next day, and in response to a

18 question about whether he received and read the letter from the churches, the

19 Governor first answered no but then said he read “parts of the letter.” He then

20 doubled down on his prior orders, stating that there would be no effort to amend

21 phase one to include churches.

22

61. If the Church does not comply with the Governor’s orders or emergency

23 regulations, it would be “subject to criminal prosecution and civil penalties.” Ex. 4, §

24 9; Ex. 6, § 5; see also Ex. 8, § 11.

25

62. The Nevada Attorney General and “[a]ll law enforcement agencies in

26 the State of Nevada,” including the Lyon County Sheriff’s Office, are authorized to

27

28

11

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 13 of 18

1 enforce the Governor’s orders and the emergency regulations. Ex. 4, § 9; Ex. 6, § 5;

2 see also Ex. 8, § 11.

3

63. Thus, Calvary Chapel Dayton Valley may not hold its planned in-

4 person services without subjecting itself to criminal and civil penalties, even though

5 its services would amount to less than 50% of the building’s capacity and would

6 adhere to strict social distancing and sanitation measures.

7

64. But Governor Sisolak does not have the authority under Nevada law to

8 impose the Church Gathering Ban.

9

65. Rather, the power to investigate and quarantine people with

10 communicable or infectious diseases is given to health authorities, not the

11 Governor.

12

66. Without declaratory and injunctive relief, the Church’s religious

13 exercise will continue to be chilled and the Church will continue to suffer violations

14 of its constitutional rights and irreparable harm.

15

COUNT I

16

Violation of the First Amendment to the U.S. Constitution

17

(Free Exercise)

18

67. Plaintiff incorporates by reference paragraphs 1 through 66.

19

68. Plaintiff’s sincerely held religious beliefs teach that the Bible is the

20 inspired word of God and the sole authority for faith and practice.

21

69. Plaintiff sincerely believes that the Bible teaches the necessity of

22 gathering together for corporate prayer, worship, and fellowship and that such

23 assembly is necessary and good for the Church and its members’ spiritual growth.

24

70. The Governor’s Church Gathering Ban substantially burdens

25 Plaintiff’s religion by prohibiting it from holding in-person church services with ten

26 or more persons.

27

28

12

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 14 of 18

1

71. The Governor’s Church Gathering Ban interferes with Plaintiff’s

2 religious autonomy and ability to carry out its religious doctrine, faith, and mission.

3

72. The Governor’s Church Gathering Ban targets, discriminates against,

4 and shows hostility towards churches, including Plaintiff.

5

73. The Governor’s Church Gathering Ban is neither neutral nor generally

6 applicable because it is riddled with exceptions and is based on a system of

7 individualized assessments.

8

74. Defendants do not have a compelling reason for prohibiting Plaintiff’s

9 in-person church services when attendees can practice adequate social distancing,

10 especially when compared to the numerous secular activities exempted under the

11 Governor’s orders.

12

75. Defendants have not selected the least restrictive means to further any

13 purported interest.

14

76. The Church Gathering Ban violates the Free Exercise Clause of the

15 First Amendment to the United States Constitution, both facially and as applied.

16

77. Without declaratory and injunctive relief, Plaintiff will be irreparably

17 harmed.

18

COUNT II

19

Violation of the First Amendment to the U.S. Constitution

20

(Right to Assemble)

21

78. Plaintiffs incorporate by reference paragraphs 1 through 66.

22

79. The First Amendment prohibits Defendants from violating Plaintiff’s

23 right to peaceably assemble.

24

80. The Governor’s Church Gathering Ban violates Plaintiff’s right to

25 peaceably assemble because the ban on in-person services does not serve any

26 legitimate, rational, substantial, or compelling governmental interest, especially

27

28

13

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 15 of 18

1 when viewed in light of the numerous secular activities exempted under the

2 Governor’s orders.

3

81. Defendants have alternative, less restrictive means to achieve any

4 interest that it might have.

5

82. The Church Gathering Ban violates the right to assemble under the

6 First Amendment to the United States Constitution, both facially and as applied.

7

83. Without declaratory and injunctive relief, Plaintiff will be irreparably

8 harmed.

9

COUNT III

10

Violation of the First Amendment to the U.S. Constitution

11

(Free Speech)

12

84. Plaintiffs incorporate by reference paragraphs 1 through 66.

13

85. The Governor’s Church Gathering Ban violates Plaintiff’s freedom of

14 speech by prohibiting it from engaging in religious speech through its church

15 services, which occur exclusively on private property.

16

86. The Governor’s Church Gathering Ban specifically targets meetings of

17 ten or more people for the purpose of religious expression, while permitting

18 meetings of the same or greater size for secular purposes.

19

87. The Governor’s Church Gathering Ban is thus is content- and

20 viewpoint-based in violation of the First Amendment.

21

88. The Governor’s Church Gathering Ban gives government officials

22 unbridled discretion with respect to enforcement of the order and the imposition of

23 any penalty, making the order susceptible to both content- and viewpoint-based

24 discrimination.

25

89. Prohibiting or punishing Plaintiff’s religious speech does not serve any

26 legitimate, rational, substantial, or compelling governmental interest.

27

28

14

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 16 of 18

1

90. The State also has alternative, less restrictive means to achieve any

2 interest that it might have.

3

91. The Church Gathering Ban violates the Free Speech Clause of the

4 First Amendment to the United States Constitution, both facially and as applied.

5

PRAYER FOR RELIEF

6

WHEREFORE, Plaintiff respectfully requests that the Court:

7

a. Enter a temporary restraining order, preliminary injunction, and

8 permanent injunction prohibiting Defendants from enforcing those portions of the

9 Governor’s orders that limit in-person church services to fewer than 10 persons,

10 thereby allowing Plaintiff and its congregants to resume corporate prayer and

11 worship while following adequate social distancing and public health guidelines.

12

b. Enter a judgment declaring that those portions of the Governor’s

13 orders that limit in-person church services to fewer than 10 persons violate the U.S.

14 Constitution’s Free Exercise and Right to Assemble Clauses, both facially and as-

15 applied;

16

c. Award Plaintiff court costs and reasonable attorney’s fees; and

17

d. Award such other and further relief as to which Plaintiff may be

18 entitled.

19

20

21

22

23

24

25

26

27

28

15

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 17 of 18

1 Respectfully submitted this 22nd day of May 2020.

2 s/ Jason D. Guinasso

3 Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

4

Ryan J. Tucker (AZ Bar 034382)* Jeremiah Galus (AZ Bar 030469)*

500 Damonte Ranch Pkwy, Suite 980 Reno, NV 89521

5 ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street

Telephone: (775) 853-8746 jguinasso@hutchlegal.com

6 Scottsdale, AZ 85260

7

Telephone: (480) 444-0020 kwaggoner@adflegal.org

8 rtucker@adflegal.org

jgalus@adflegal.org 9

10

David A. Cortman (GA Bar 188810)* ALLIANCE DEFENDING FREEDOM

11 1000 Hurricane Shoals Rd. NE

Ste. D-1100 12 Lawrenceville, GA 30043

13

Telephone: (770) 339-0774 dcortman@ADFlegal.org

14 *Pro hac vice application forthcoming
15

16

17

18

19 20

21

22

23

24

25

26

27 28

16

Case 3:20-cv-00303-RFB-VCF Document 1 Filed 05/22/20 Page 18 of 18

 
 Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 1 of 20

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4

Kristen K. Waggoner (AZ Bar 032382)* 5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street

Scottsdale, AZ 85260 8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)* ALLIANCE DEFENDING FREEDOM
12 1000 Hurricane Shoals Rd. NE 13 Ste. D-1100
Lawrenceville, GA 30043 14 Telephone: (770) 339-0774
15 dcortman@ADFlegal.org *Pro hac vice application forthcoming
16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19

Case No.: 3:20-CV-00303-LRH-CLB

Plaintiff, 20

21 v.
22 STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his
23 official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official
24 capacity as Sheriff of Lyon County,

VERIFIED FIRST AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF

25

Defendants.

26

27

28

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 2 of 20

1

INTRODUCTION

2

1. Four days after filing of the initial complaint in this case, Governor

3 Steve Sisolak announced that Nevada would be moving into Phase 2 of the state’s

4 reopening plan on Friday, May 29. But instead of fixing the serious constitutional

5 problems identified in the initial complaint, the Governor has chosen to make them

6 worse.

7

2. The initial complaint challenged the Governor’s emergency orders

8 prohibiting churches and other places of worship from holding in-person worship

9 services of ten or more people, even when such services could be held in accordance

10 with social distancing and public health guidelines. In addition to spawning this

11 lawsuit, that prohibition caused the U.S. Department of Justice on Monday to urge

12 the Governor “to help preserve the Free Exercise Clause of the First Amendment by

13 amending earlier Emergency Directives and remedying their unequal treatment of

14 places of worship.” DOJ Letter, May 25, 2020, attached as Exhibit 1. The Governor

15 has failed to do so.

16

3. For over two months, Calvary Chapel Dayton Valley (the “Church”)

17 has been unable to hold an in-person worship service due to Covid-19 and the

18 Governor’s orders. The Church has patiently waited for Governor Sisolak to restore

19 its First Amendment freedoms, trusting that the Governor would prioritize

20 constitutional rights and allow churches to resume in-person worship services at the

21 earliest opportunity.

22

4. But that trust has been shattered. Instead of prioritizing religious

23 freedom, the Governor has moved “non-essential” secular businesses and activities

24 to the front of the line and pushed churches towards the back. Even before his

25 Phase 2 announcement, the Governor allowed restaurants and food establishments

26 to resume in-person, on-site dining at 50% capacity, allowed all retail

1

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 3 of 20

1 establishments to open at 50% capacity, and threw open the doors of nail care

2 salons, hair salons, and barber shops—businesses that the Governor’s own orders

3 say “promote extended periods of public interaction where the risk of [Covid-19]

4 transmission is high.”

5

5. Moreover, the Governor has now announced that the following “non-

6 essential” businesses can reopen in Phase 2:

7

• Gyms and fitness facilities, including group fitness classes, up to 50%

8

building capacity;

9

• Bars and taverns, up to 50% capacity;

10

• Salons and other businesses that provide aesthetic or skin services,

11

including facials, hair removal, tanning, eyelash services, eyebrow

12

threading, and salt therapy;

13

• Day and overnight spas;

14

• Massage services;

15

• Body art and piercing establishments;

16

• Aquatic facilities and swimming pools, up to 50% capacity;

17

• Water parks, up to 50% capacity;

18

• Museums, art galleries, zoos and aquariums, up to 50% capacity;

19

• Outdoor venues, like mini golf and amusement parks;

20

• Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to

21

50% capacity; and

22

• Casinos (starting June 4).

23

6. Incredibly, the Governor’s Phase 2 plan prohibits churches and places

24 of worship from opening their doors to more than 50 people under any circumstance

25 (the “Church Gathering Ban”).

26

2

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 4 of 20

1

7. Regardless of the Governor’s purported reasons for this disparate

2 treatment, they cannot survive constitutional scrutiny. Under the Free Exercise

3 Clause, a law is not generally applicable, and thus triggers strict scrutiny, when it

4 “fail[s] to prohibit nonreligious conduct that endangers” the government’s interest

5 “in a similar or greater degree” than the prohibited religious conduct. Church of the

6 Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993). That is

7 exactly what the exemptions under the Governor’s orders do.

8

8. Indeed, under the Governor’s orders, large numbers of people can

9 gather for a similar or greater amount of time as a church service at restaurants,

10 non-essential retail establishments, nail salons, hair salons, barber shops, gyms,

11 fitness facilities, pools, water parks, museums, aquariums, amusement parks,

12 indoor malls, bowling alleys, movie theaters, and casinos, but it is illegal for the

13 Church—which is located in rural Lyon County—to hold in-person services with

14 more than 50 people.

15

9. This is unconstitutional, and it makes no sense. As of May 25, 2020,

16 Carson City Health and Human Services reports that Lyon County has only 12

17 active cases of Covid-19. See Lyon County Covid-19 Data, attached as Exhibit 2.

18 With a population of approximately 57,510, that means the per capita rate of active

19 Covid-19 infections in Lyon County is approximately 0.021%.

20

10. Consistent with its religious beliefs, the Church plans to resume in-

21 person worship services on Sunday, May 31, and has developed comprehensive

22 social distancing and health and safety protocols to govern those services. Despite

23 these health and safety measures, however, the Governor’s Church Gathering Ban

24 threatens the Church with criminal and civil penalties.

25

11. Without a temporary restraining order and injunction, the Church will

26 face criminal and civil penalties for assembling and worshipping God. A temporary

3

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 5 of 20

1 restraining order and injunction are therefore needed to preserve the Church’s

2 constitutional rights.

3

JURISDICTION AND VENUE

4

12. This civil rights action raises federal questions under the United

5 States Constitution, specifically the First and Fourteenth Amendments, and under

6 federal law, particularly 42 U.S.C. § 1983.

7

13. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and

8 1343.

9

14. This Court has authority to grant the requested declaratory relief

10 under 28 U.S.C. §§ 2201 and 2202, the requested injunctive relief under 28 U.S.C. §

11 1343, and reasonable attorney’s fees and costs under 42 U.S.C. § 1988.

12

15. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a

13 substantial part of the events or omissions giving rise to the claims occurred in this

14 district and Defendants reside in this district.

15

PARTIES

16

16. Calvary Chapel Dayton Valley (the “Church”) is a nonprofit church

17 organized exclusively for religious purposes within the meaning of § 501(c)(3) of the

18 Internal Revenue Code. The Church is in Dayton, Nevada (Lyon County).

19

17. Defendant Steve Sisolak is the Governor of Nevada. Governor Sisolak

20 is responsible for issuing and enforcing the Church Gathering Ban. He is sued in his

21 official capacity only.

22

18. Defendant Aaron Ford is Nevada’s Attorney General. Attorney General

23 Ford is authorized to enforce and prosecute violations of the Church Gathering Ban.

24 He is sued in his official capacity only.

25

19. Defendant Frank Hunewill is the Sheriff of Lyon County. As Sheriff of

26 Lyon County, Defendant Hunewill has the power, both personally and through his

4

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 6 of 20

1 subordinates, to enforce the Church Gathering Ban. He is sued in his official

2 capacity only.

3

FACTS

4

Calvary Chapel Dayton Valley

5

20. Calvary Chapel Dayton Valley has operated as a Christian church in

6 Dayton, Nevada since February 5, 2006.

7

21. The Church believes that the Bible is the inspired Word of God and

8 infallible rule of faith and practice.

9

22. Thus, the Bible is the foundation upon which the Church operates and

10 is the basis on which it is governed.

11

23. The Church believes, among other things, that the Bible commands

12 Christians to gather together in person for corporate prayer, worship, and

13 fellowship and that such assembly is necessary and good for the Church and its

14 members’ spiritual growth.

15

24. Consistent with that belief, the Church’s mission and purpose is: (1) to

16 continue steadfastly in the apostles’ doctrine and fellowship, in the breaking of

17 bread, and in prayers; (2) to worship God the Father, Son, and Holy Spirit; (3) to

18 build up the Church of Jesus Christ through the teaching of the Word of God and

19 the ministry of the Holy Spirit; and (4) to persuade men and women to repent and

20 confess Jesus Christ as Lord.

21

The Church’s Response to Covid-19

22

and Plan to Resume In-Person Services

23

25. In response to federal, state, and local guidance at the beginning of the

24 Covid-19 outbreak—but before any local or state order prohibited in-person

25 gatherings—the Church voluntarily adopted rigorous social distancing and health

26 safety measures for its services.

5

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 7 of 20

1

26. In fact, immediately after the Governor declared a state of emergency

2 on March 12, the Church took proactive steps for its upcoming March 15 services.

3

27. The Church disinfected frequently touched surfaces such as door

4 handles, chairs, and tables before and after services; made hand sanitizer available

5 in multiple locations throughout the building’s common areas; advised church

6 attendees to refrain from personal contact such as handshakes and hugs; instructed

7 those who felt sick or lived with someone who felt sick to stay home; and encouraged

8 online giving through the Church’s website, among other things.

9

28. And the next day, on March 16, 2020, the Church temporarily

10 suspended in-person worship services and began streaming its services online.

11

29. More than two months later, the Governor’s orders have prevented the

12 Church from resuming in-person worship services.

13

30. Although the Church’s initial decision to temporarily suspend in-

14 person services was voluntary, and made in an abundance of caution given the

15 health and safety concerns at the time, the Church believes it is called to resume in-

16 person worship services, consistent with its religious beliefs about corporate prayer,

17 worship, and fellowship.

18

31. The Church sincerely believes that online services and drive-in

19 services do not meet the Bible’s requirement that the Church meet together in

20 person for corporate worship.

21

32. In addition, some of the Church’s parishioners do not have internet

22 access or the ability to participate in online services.

23

33. The Church thus plans to resume in-person worship services on May

24 31, 2020 (Pentecost Sunday), but the Church Gathering Ban makes such services

25 illegal and would subject the Church to possible criminal and civil penalties.

26

6

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 8 of 20

1

34. Before Covid-19, the Church’s two Sunday services could hold up to

2 200 people each.

3

35. The Church seeks to hold in-person services at 50% of its sanctuary’s

4 capacity while also providing for proper social distancing of at least six feet

5 separation between families and individuals, which would amount to approximately

6 90 people in a service.

7

36. In preparation for resuming in-person worship services, the Church

8 has adopted—and will follow—strict social distancing and health and safety

9 protocols.

10

37. These protocols include the following precautions:

11

•

Holding Sunday and Wednesday services;

12

•

Strictly limiting Sunday services to 45 minutes (as opposed to the

13

usual 90 minutes);

14

•

Holding up to three services each Sunday to guarantee adequate space

15

for social distancing at each service;

16

•

Providing ½ hour between services to allow for thorough cleaning and

17

sanitizing of sanctuary, hallways, bathrooms, and common surfaces;

18

• Posting signs on walls and floors to direct traffic;

19

• Posting signs on restroom doors limiting use to one person at a time;

20

• Posting signs in the restrooms encouraging proper washing of hands;

21

• Making hand sanitizer stations easily accessible to attendees;

22

• Encouraging attendees to arrive no earlier than 25 minutes before

23

service;

24

• Using parking attendants to direct cars to designated parking areas;

25

• Directing all attendees to a designated entrance;

26

7

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 9 of 20

1

• Directing attendees to sanctuary seating designed to provide 6-feet of

2

separation between families and individuals;

3

• Ensuring that all traffic for each service will be in one direction by

4

using “first in, last out” model;

5

• Advising attendees of proper social distancing protocols;

6

• Encouraging attendees to bring and wear face coverings;

7

• Requiring all servants greeting or directing attendees to wear face

8

coverings;

9

• Prohibiting any handouts or items to be passed to attendees during

10

services;

11

• Prohibiting snacks or coffee from being served;

12

• Using prepacked Communion elements whenever served;

13

• Directing attendees out of the building to the parking area at the end

14

of each service;

15

• Instructing attendees to refrain from congregating in the building.

16

The Governor’s Orders

17

38. On March 12, 2020, Governor Sisolak declared a state of emergency in

18 response to the Covid-19 outbreak. See Declaration of Emergency, attached as

19 Exhibit 3.

20

39. Noting that the Nevada Constitution gives him “[t]he supreme

21 executive power of this State,” Governor Sisolak “direct[ed] all state agencies to

22 supplement the efforts of all impacted and threatened counties” and announced that

23 he would “perform and exercise such other functions, powers, and duties as are

24 necessary to promote and secure the safety and protection of the civilian

25 population.” Id.

26

8

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 10 of 20

1

40. Five days later, on March 17, 2020, Governor Sisolak held a press

2 conference and explained steps the State would be taking to mitigate the risks

3 associated with Covid-19. See Press Release (Mar. 17, 2020), attached as Exhibit 4.

4

41. While Governor Sisolak encouraged “faith leaders” during that press

5 conference “to find ways to deliver to your congregation without bringing them

6 together in person,” he assured them that he “cannot and will not say that places of

7 worship should be closed.” Id. at 4.

8

“Essential” and “Non-Essential” Businesses

9

42. Three days later, Governor Sisolak issued an order mandating the

10 closure of all “Non-Essential Businesses.” See Declaration of Emergency Directive

11 003, attached as Exhibit 5.

12

43. The Governor’s order defined “Non-Essential Businesses” to include,

13 among other things, businesses that “promote recreational social gathering

14 activities” and businesses that “promote extended periods of public interaction

15 where the risk of [Covid-19] transmission is high,” including “beauty shops, barber

16 shops, [and] nail salons.” Id., §§ 1, 2.

17

44. Likewise, the Governor’s order limited restaurants and food

18 establishments to “take-out, drive-through, curbside pickup, [and] delivery” service

19 and prohibited them from providing dine-in service to any customers. Id., § 3.

20

45. The Governor’s order did not close “Essential Licensed Business[es]”

21 but rather encouraged them “to continue operation.” Id., § 4.

22

46. In addition, the Governor’s order stated that “[t]he construction,

23 mining, manufacturing, and infrastructure sector labor force may continue

24 operations.” Id., § 6.

25

47. In connection with the Governor’s order, the Nevada Department of

26 Public Safety, Division of Emergency Management, adopted emergency regulations

9

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 11 of 20

1 further defining “essential” and “non-essential” businesses. See Emergency

2 Regulations, March 20, 2020, attached as Exhibit 6.

3

48. Businesses not delineated in the Governor’s order or in the emergency

4 regulations could continue operations if they could “implement social distancing

5 safeguards for the protection of their employees” and, “[t]o the extent practicable,

6 provide services without causing members of the Nevada general public to

7 congregate in a manner contrary to social distancing goals of a minimum of six feet

8 of separation for more than incidental contact.” Ex. 5, § 8.

9

49. Because neither the Governor’s order nor the emergency regulations

10 referenced churches or places of worship, they should have been allowed to continue

11 operations and in-person services.

12

The Church Gathering Ban

13

50. A few days later, Governor Sisolak issued another order—this time

14 forbidding the “general public” from “gather[ing] in groups of ten or more in any

15 indoor or outdoor area.” Declaration of Emergency Directive 007, § 1, attached as

16 Exhibit 7.

17

51. The Governor issued his stay-at-home order shortly thereafter. See

18 Declaration of Emergency Directive 010, attached as Exhibit 8.

19

52. And even though Governor Sisolak assured faith leaders that he would

20 not and could not close houses of worship, he later prohibited “[p]laces of worship”

21 from “hold[ing] in-person worship services where ten or more persons may gather.”

22 Declaration of Emergency Directive 013, § 4, attached as Exhibit 9.

23

53. Related guidance from the Governor’s office claimed that “this is not

24 yet the time to get people together to celebrate their faith” and that “nobody should

25 be physically attending in-person worship services.” Guidance: Directive 013 (Apr.

26 8, 2020), attached as Exhibit 10.

10

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 12 of 20

1

54. Governor Sisolak continued to impose this ten-person restriction on

2 churches during Phase 1 of the state’s reopening plan. See Declaration of

3 Emergency Directive 016, § 10, attached as Exhibit 11; Declaration of Emergency

4 Directive 018, § 7, attached as Exhibit 12.

5

55. On May 26, 2020, Governor Sisolak announced that Nevada would be

6 moving into Phase 2 of the state’s reopening plan on Friday, May 29. See Press

7 Release (May 26, 2020), attached as Exhibit 13.

8

56. Although the Governor announced that even more “non-essential”

9 businesses and activities will be allowed in Phase 2, in-person worship services will

10 be limited to no more than 50 people.

11

57. The Church Gathering Ban is indefinite.

12

Secular Exceptions to the Gathering Bans

13

58. There are numerous secular exceptions to the Governor’s gathering

14 restrictions.

15

59. For one thing, the Governor’s ban on gatherings of more than 50 people

16 does not apply to persons working at or patronizing Essential Licensed Businesses

17 or providing essential services to the public.

18

60. Thus, more than 50 people can gather for an extended period of time

19 to, among other things, work at or patronize:

20

•

“Essential infrastructure operations,” including “airport[s]”;

21

•

“Businesses that ship or deliver goods directly to residences”;

22

•

“Banks and Financial Institutions”;

23

•

“Pawnbrokers”;

24

•

Businesses or entities that provide “social services for economically

25

disadvantaged individuals, vulnerable populations, or victims of

26

crime”;

11

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 13 of 20

1

• “Laundromats and dry cleaners”;

2

•

“Warehouses and storage facilities”;

3

•

“Professional or technical services including legal, accounting, tax,

4

payroll, real estate, and property management services”;

5

•

“Child care facilities”; and

6

•

“Newspapers, television, radio, and other media services.”

7 Ex. 6 (NAC 414.XXX(1)).

8

61. What is more, Governor Sisolak’s “Phase One” order exempts some

9 “non-essential” businesses and activities from the gathering restrictions. For

10 example, the Governor’s “Phase One” order allows:

11

•

All restaurants and food establishments to resume onsite, in-person

12

dining—up to “50% of the maximum seating capacity under normal

13

circumstances”;

14

•

All retail businesses to reopen at 50% capacity;

15

•

Auto showrooms, furniture showrooms, home furnishing showrooms,

16

and appliance showrooms to reopen at 50% capacity;

17

•

Cannabis dispensaries to resume in-person sales; and

18

•

Nail care salons, hair salons, and barber shops to reopen.

19 Ex. 12, §§ 13, 15, 16, 17, 22; see also Ex. 9, § 3.

20

62. By allowing restaurants, food establishments, nail care salons, hair

21 salons, and barber shops to reopen, the Governor has allowed businesses and

22 entities to reopen that the State previously determined “promote extended periods

23 of public interaction where the risk of [Covid-19] transmission is high.” Ex. 5, § 2.

24

63. These exemptions continue during Phase 2 of the Governor’s reopening

25 plan.

26

12

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 14 of 20

1

64. In addition, the Governor has exempted the following “non-essential”

2 businesses for Phase 2:

3

• Gyms and fitness facilities, including group fitness classes, up to 50%

4

building capacity;

5

• Bars and taverns, up to 50% capacity;

6

• Salons and other businesses that provide aesthetic or skin services,

7

including facials, hair removal, tanning, eyelash services, eyebrow

8

threading, and salt therapy;

9

• Day and overnight spas;

10

• Massage services;

11

• Body art and piercing establishments;

12

• Aquatic facilities and swimming pools, up to 50% capacity;

13

• Water parks, up to 50% capacity;

14

• Museums, art galleries, zoos and aquariums, up to 50% capacity;

15

• Outdoor venues, like mini golf and amusement parks;

16

• Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to

17

50% capacity; and

18

• Casinos (starting June 4).

19 Ex. 13; see also Road Map to Recovery Chart, attached as Exhibit 14.

20

65. Yet the Governor refuses to provide a similar accommodation to

21 churches and other places of worship.

22

66. Nor has the Governor given any indication of when churches can

23 expect to resume in-person services with more than 50 people.

24

67. In fact, on May 14, 2020, nearly 200 hundred churches (including

25 Plaintiff) sent a letter to Governor Sisolak respectfully asking him to treat houses of

26 worship equally and lift the ban on in-person worship services. At a press

13

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 15 of 20

1 conference the next day, and in response to a question about whether he received

2 and read the letter from the churches, the Governor first answered no but then said

3 he read “parts of the letter.”

4

68. If the Church does not comply with the Governor’s orders or emergency

5 regulations, it would be “subject to criminal prosecution and civil penalties.” Ex. 5, §

6 9; Ex. 7, § 5; see also Ex. 9, § 11.

7

69. The Nevada Attorney General and “[a]ll law enforcement agencies in

8 the State of Nevada,” including the Lyon County Sheriff’s Office, are authorized to

9 enforce the Governor’s orders and the emergency regulations. Ex. 5, § 9; Ex. 7, § 5;

10 see also Ex. 9, § 11.

11

70. Thus, Calvary Chapel Dayton Valley may not hold its planned in-

12 person services without subjecting itself to criminal and civil penalties, even though

13 its services would amount to less than 50% of the building’s capacity and would

14 adhere to strict social distancing and sanitation measures.

15

71. But Governor Sisolak does not have the authority under Nevada law to

16 impose the Church Gathering Ban.

17

72. Rather, the power to investigate and quarantine people with

18 communicable or infectious diseases is given to health authorities, not the

19 Governor.

20

73. Without declaratory and injunctive relief, the Church’s religious

21 exercise will continue to be chilled and the Church will continue to suffer violations

22 of its constitutional rights and irreparable harm.

23

COUNT I

24

Violation of the First Amendment to the U.S. Constitution

25

(Free Exercise)

26

74. Plaintiff incorporates by reference paragraphs 1 through 73.

14

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 16 of 20

1

75. Plaintiff’s sincerely held religious beliefs teach that the Bible is the

2 inspired word of God and the sole authority for faith and practice.

3

76. Plaintiff sincerely believes that the Bible teaches the necessity of

4 gathering together for corporate prayer, worship, and fellowship and that such

5 assembly is necessary and good for the Church and its members’ spiritual growth.

6

77. The Governor’s Church Gathering Ban substantially burdens

7 Plaintiff’s religion by prohibiting it from holding in-person church services with

8 more than 50 persons.

9

78. The Governor’s Church Gathering Ban interferes with Plaintiff’s

10 religious autonomy and ability to carry out its religious doctrine, faith, and mission.

11

79. The Governor’s Church Gathering Ban targets, discriminates against,

12 and shows hostility towards churches, including Plaintiff.

13

80. The Governor’s Church Gathering Ban is neither neutral nor generally

14 applicable because it is riddled with exceptions and is based on a system of

15 individualized assessments.

16

81. Defendants do not have a compelling reason for prohibiting Plaintiff’s

17 in-person church services when attendees can practice adequate social distancing,

18 especially when compared to the numerous secular activities exempted under the

19 Governor’s orders.

20

82. Defendants have not selected the least restrictive means to further any

21 purported interest.

22

83. The Church Gathering Ban violates the Free Exercise Clause of the

23 First Amendment to the United States Constitution, both facially and as applied.

24

84. Without declaratory and injunctive relief, Plaintiff will be irreparably

25 harmed.

26

15

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 17 of 20

1

COUNT II

2

Violation of the First Amendment to the U.S. Constitution

3

(Right to Assemble)

4

85. Plaintiffs incorporate by reference paragraphs 1 through 73.

5

86. The First Amendment prohibits Defendants from violating Plaintiff’s

6 right to peaceably assemble.

7

87. The Governor’s Church Gathering Ban violates Plaintiff’s right to

8 peaceably assemble because the ban on in-person services does not serve any

9 legitimate, rational, substantial, or compelling governmental interest, especially

10 when viewed in light of the numerous secular activities exempted under the

11 Governor’s orders.

12

88. Defendants have alternative, less restrictive means to achieve any

13 interest that it might have.

14

89. The Church Gathering Ban violates the right to assemble under the

15 First Amendment to the United States Constitution, both facially and as applied.

16

90. Without declaratory and injunctive relief, Plaintiff will be irreparably

17 harmed.

18

COUNT III

19

Violation of the First Amendment to the U.S. Constitution

20

(Free Speech)

21

91. Plaintiffs incorporate by reference paragraphs 1 through 73.

22

92. The Governor’s Church Gathering Ban violates Plaintiff’s freedom of

23 speech by prohibiting it from engaging in religious speech through its church

24 services, which occur exclusively on private property.

25

26

16

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 18 of 20

1

93. The Governor’s Church Gathering Ban specifically targets meetings of

2 more than 50 people for the purpose of religious expression, while permitting

3 meetings of the same or greater size for secular purposes.

4

94. The Governor’s Church Gathering Ban is thus is content- and

5 viewpoint-based in violation of the First Amendment.

6

95. The Governor’s Church Gathering Ban gives government officials

7 unbridled discretion with respect to enforcement of the order and the imposition of

8 any penalty, making the order susceptible to both content- and viewpoint-based

9 discrimination.

10

96. Prohibiting or punishing Plaintiff’s religious speech does not serve any

11 legitimate, rational, substantial, or compelling governmental interest.

12

97. The State also has alternative, less restrictive means to achieve any

13 interest that it might have.

14

98. The Church Gathering Ban violates the Free Speech Clause of the

15 First Amendment to the United States Constitution, both facially and as applied.

16

PRAYER FOR RELIEF

17

WHEREFORE, Plaintiff respectfully requests that the Court:

18

a. Enter a temporary restraining order, preliminary injunction, and

19 permanent injunction prohibiting Defendants from enforcing those portions of the

20 Governor’s orders that limit in-person church services to 50 or fewer persons,

21 thereby allowing Plaintiff and its congregants to resume corporate prayer and

22 worship while following adequate social distancing and public health guidelines.

23

b. Enter a judgment declaring that those portions of the Governor’s

24 orders that limit in-person church services to 50 or fewer persons violate the U.S.

25 Constitution’s Free Exercise and Right to Assemble Clauses, both facially and as-

26 applied;

17

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 19 of 20

1

c. Award Plaintiff court costs and reasonable attorney’s fees; and

2

d. Award such other and further relief as to which Plaintiff may be

3 entitled.

4 Respectfully submitted this 28th day of May 2020.

5 s/ Jason D. Guinasso
6 Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

7

Ryan J. Tucker (AZ Bar 034382)* Jeremiah Galus (AZ Bar 030469)*

500 Damonte Ranch Pkwy, Suite 980 Reno, NV 89521

8 ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street
9 Scottsdale, AZ 85260

Telephone: (775) 853-8746 jguinasso@hutchlegal.com

10

Telephone: (480) 444-0020 kwaggoner@adflegal.org

11 rtucker@adflegal.org

jgalus@adflegal.org 12

13

David A. Cortman (GA Bar 188810)* ALLIANCE DEFENDING FREEDOM

14 1000 Hurricane Shoals Rd. NE

Ste. D-1100 15 Lawrenceville, GA 30043

16

Telephone: (770) 339-0774 dcortman@ADFlegal.org

17 *Pro hac vice application forthcoming
18

19

20

21

22

23

24

25

26

18

Case 3:20-cv-00303-RFB-VCF Document 8 Filed 05/28/20 Page 20 of 20

 
 Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 1 of 28

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4
Kristen K. Waggoner (AZ Bar 032382)* 5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street
Scottsdale, AZ 85260 8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*

ALLIANCE DEFENDING FREEDOM 12 1000 Hurricane Shoals Rd. NE

13 Ste. D-1100 Lawrenceville, GA 30043
14 Telephone: (770) 339-0774

dcortman@ADFlegal.org 15
*Pro hac vice application forthcoming 16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19 Plaintiff,
20
21 v.
22 STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his
23 official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official
24 capacity as Sheriff of Lyon County,

Case No.: 3:20-cv-00303-LRH-CLB
PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
ORAL ARGUMENT REQUESTED

25

Defendants.

26

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 2 of 28 ***EMERGENCY MOTION***

1

Pursuant to Fed. R. Civ. P. 65 and LR 7-4, Plaintiff Calvary Chapel Dayton Valley, hereby

2 moves the Court for a temporary restraining order and preliminary injunction, and permanent

3 injunction prohibiting Defendants from enforcing those portions of the Governor’s orders that limit

4 in-person church services to 50 or fewer persons, thereby allowing Plaintiff and its congregants to

5 resume corporate prayer and worship while following adequate social distancing and public health

6 guidelines.

7

In support of this motion, Plaintiff relies upon the attached memorandum of points and

8 authorities, the Declaration of Garry D. Leist, and the Declaration of Jason D. Guinasso Pursuant

9 to Local Rule 7-4. A proposed order is attached. Oral argument is respectfully requested.

10

Respectfully submitted this 28th day of May 2020.

11

s/ Jason D. Guinasso

Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

12 Ryan J. Tucker (AZ Bar 034382)*

500 Damonte Ranch Pkwy, Suite 980

13 Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

Reno, NV 89521 Telephone: (775) 853-8746

14 15100 N. 90th Street

jguinasso@hutchlegal.com

Scottsdale, AZ 85260 15 Telephone: (480) 444-0020

16 kwaggoner@adflegal.org rtucker@adflegal.org

17 jgalus@adflegal.org

18 David A. Cortman (GA Bar 188810)* 19 ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE 20 Ste. D-1100
Lawrenceville, GA 30043 21 Telephone: (770) 339-0774 22 dcortman@ADFlegal.org

23 *Pro hac vice application forthcoming

24

25

26

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 3 of 28

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4 Kristen K. Waggoner (AZ Bar 032382)*
5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street Scottsdale, AZ 85260
8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*
ALLIANCE DEFENDING FREEDOM 12 1000 Hurricane Shoals Rd. NE
13 Ste. D-1100 Lawrenceville, GA 30043
14 Telephone: (770) 339-0774
dcortman@ADFlegal.org 15
*Pro hac vice application pending 16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19
Plaintiff, 20

Case No.: 3:20-cv-00303-LRH-CLB

21 v.
22 STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his
23 official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official
24 capacity as Sheriff of Lyon County,

MEMORANDUM OF POINTS AND AUTHORTIIES IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

25

Defendants.

26

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 4 of 28

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................... ii

3 INTRODUCTION .......................................................................................................... 1

4 BACKGROUND ............................................................................................................. 2

5

A. Calvary Chapel Dayton Valley ........................................................... 2

6

B. The Church’s Plan to Resume In-Person Services ............................ 2

7

C. Governor Sisolak’s Orders .................................................................. 5

8 LEGAL STANDARD...................................................................................................... 9

9 ARGUMENT .................................................................................................................. 9

10

I.

The Church is likely to succeed on the merits of its claims......................... 9

11

A. The Church Gathering Ban violates the Free Exercise

12

Clause. ................................................................................................. 9

13

1. The Ban triggers strict scrutiny because it is not generally

applicable. .................................................................................... 10

14 2. The Ban also triggers strict scrutiny because it is not

15

neutral.......................................................................................... 13

16

3. The Ban triggers strict scrutiny because it involves a

system of individual exemptions................................................. 15 17

18

B. The Church Gathering Ban violates the Church’s free speech and assembly rights. ......................................................................... 16

19

C. The Church Gathering Ban fails strict scrutiny.............................. 17

20

II. Covid-19 does not justify banning the Church’s services while

21

allowing larger secular gatherings. ............................................................ 19

22

III. The Church has already suffered and will continue to suffer

irreparable harm without an injunction..................................................... 21

23

IV. The balance of equities sharply favors the Church.................................... 21

24

V. An injunction would serve the public interest............................................ 21

25

CONCLUSION............................................................................................................. 22 26

i

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 5 of 28

1

TABLE OF AUTHORITIES

2 Cases

3 Berean Baptist Church v. Cooper,

No. 4:20-CV-81-D, 2020 WL 2514313 (E.D.N.C. May 16, 2020) ..................... 14 4

Brown v. Entertainment Merchandisers Ass’n,

5

564 U.S. 786 (2011) ........................................................................................... 17

6 Burwell v. Hobby Lobby Stores, Inc.,

7

573 U.S. 682 (2014) ........................................................................................... 17

8 Calvary Chapel of Bangor v. Mills,

No. 1:20-cv-00156, 2020 WL 2310913 (D. Me. May 9, 2020)........................... 12

9

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

10

508 U.S. 520 (1993) ....................................................................................passim

11 Contractors Ass’n of Eastern Pa. v. City of Philadelphia,

12

6 F.3d 990 (3d Cir. 1993) .................................................................................. 17

13

Cross Culture Christian Center v. Newsom, No. 2:20-cv-00832, 2020 WL 2121111 (E.D. Cal. May 5, 2020)....................... 12

14 Elrod v. Burns,

15

427 U.S. 347 (1976) ........................................................................................... 21

16 Employment Division, Department of Human Resources of Or. v. Smith,

494 U.S. 872 (1990) ..................................................................................... 15, 16 17

First Baptist Church v. Kelly,

18

No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) ................. 18–19

19 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

20

170 F.3d 359 (3d Cir. 1999) .............................................................................. 12

21 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ........................................................................................... 17

22 Guru Nanak Sikh Society of Yuba City v. County of Sutter,

23

456 F.3d 978 (9th Cir. 2006) ............................................................................. 16

24 In re Abbott,

25

2020 WL 1685929 (5th Cir. Apr. 7, 2020) ........................................................ 19

26

Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905) ............................................................................................. 20

ii

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 6 of 28

1 Koller v. Brown,

224 F. Supp. 3d 871 (N.D. Cal. 2016) ................................................................. 9 2

Lovell v. City of Griffin,

3

303 U.S. 444 (1938) ........................................................................................... 16

4 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n,

5

138 S. Ct. 1719 (2018) ....................................................................................... 13

6 Melendres v. Arpaio,

695 F.3d 990 (9th Cir. 2012) ......................................................................... 9, 21

7

Midrash Sephardi, Inc. v. Town of Surfside,

8

366 F.3d 1214 (11th Cir. 2004) ......................................................................... 12

9 Quiroga v. Chen,

10

735 F. Supp. 2d 1226 (D. Nev. 2010) .................................................................. 9

11

Reed v. Town of Gilbert, 576 U.S. 155 (2015) ........................................................................................... 16

12 Roberts v. Neace,

13

958 F.3d 409 (6th Cir. 2020) ......................................................................passim

14 Sanders County Republican Cent. Comm. v. Bullock,

698 F.3d 741 (9th Cir. 2012) ............................................................................. 17 15

Sherbert v. Verner,

16

374 U.S. 398 (1963) ........................................................................................... 15

17 South Oregon Barter Fair v. Jackson County, Or.,

18

372 F.3d 1128 (9th Cir. 2004) ........................................................................... 17

19 Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016) ............................................................................. 17

20 United States v. Chalk,

21

441 F.2d 1277 (4th Cir. 1971) ........................................................................... 19

22 Widmar v. Vincent,

23

454 U.S. 263 (1981) ........................................................................................... 16

24

Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7 (2008) ................................................................................................. 9

25

26

iii

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 7 of 28

1

INTRODUCTION

2

This action challenges Governor Steve Sisolak’s emergency orders prohibiting

3 churches and other places of worship from holding in-person worship services of

4 more than 50 people, even when such services could be held in accordance with

5 social distancing and public health guidelines (the “Church Gathering Ban”).

6

For over two months, Covid-19 and the Governor’s Orders have prevented

7 Plaintiff Calvary Chapel Dayton Valley (the “Church”) from holding in-person

8 worship services. The Church has patiently waited for Governor Sisolak to restore

9 its First Amendment freedoms, trusting that the Governor would prioritize

10 constitutional rights and allow churches to resume in-person worship services at the

11 earliest opportunity. But that trust has been shattered.

12

Rather than prioritize religious freedom, the Governor has moved “non-

13 essential” secular businesses and activities to the front of the line and pushed

14 churches towards the back. Currently, in-person worship services of more than 50

15 people are banned across the state. But no such restriction applies to a host of

16 similarly situated secular businesses and gatherings, including movie theaters,

17 restaurants, bars, bowling alleys, amusement parks, indoor shopping malls, gyms,

18 fitness facilities, museums, art galleries, swimming pools, water parks, aquariums,

19 and casinos, to name just a few.

20

There is no good reason—let alone a constitutional one—for this disparate

21 treatment. Thus, the Church seeks to resume in-person worship services on Sunday,

22 May 31, and has adopted strict social distancing and hygiene protocols to govern

23 those services. Despite these health and safety measures, however, the Church

24 Gathering Ban threatens the Church with criminal and civil penalties. A temporary

25 restraining order and injunction are needed to preserve the Church’s constitutional

26 rights and allow it to resume worship services consistent with its religious beliefs.

1

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 8 of 28

1

BACKGROUND

2

A. Calvary Chapel Dayton Valley

3

Calvary Chapel Dayton Valley (“CCDV” or the “Church) has been serving its

4 community since 2006. First Am. Compl. (“FAC”) ¶ 20; Leist Decl. ¶¶ 2, 14–15. As a

5 Christian church, the Church believes that the Bible is the inspired Word of God

6 and sole authority for faith and practice; it is the foundation upon which the Church

7 operates and the basis on which it is governed. Leist Decl. ¶ 4. Among other things,

8 the Church believes that the Bible commands Christians to gather in-person for

9 corporate prayer, worship, and fellowship and that such assembly is necessary and

10 good for the Church and its members’ spiritual growth. Id. ¶¶ 5, 7–13; accord

11 Hebrews 10:24–25 (ESV) (“And let us consider how to stir up one another to love

12 and good works, not neglecting to meet together, as is the habit of some, but

13 encouraging one another, and all the more as you see the Day drawing near). The

14 gathering of the “ekklesia”—the New Testament term for “assembly” or “called

15 out”—is central to the Church’s faith in Jesus Christ. Leist Decl. ¶ 7. Indeed, the

16 Church believes that such assembly is “the embodiment of Christ on earth” and how

17 believers “best express His image and likeness.” Id. ¶ 10. This “sacred assembly”

18 cannot simply be substituted with virtual or “drive-in” services. Id.

19

B. The Church’s Plan to Resume In-Person Services

20

In response to federal, state, and local guidance at the beginning of the

21 Covid-19 outbreak—but before any local or state order prohibited in-person

22 gatherings—the Church voluntarily adopted rigorous social distancing and health

23 safety measures for its worship services. Id. ¶ 17.

24

Right after Governor Sisolak declared a state of emergency on March 12, the

25 Church took proactive steps for its upcoming March 15 services. Id. ¶ 18. The

26 Church disinfected common surfaces such as door handles, chairs, and tables before

2

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 9 of 28

1 and after services; made hand sanitizer available in multiple locations throughout

2 common areas; advised attendees to refrain from personal contact such as

3 handshakes and hugs; and instructed those who felt sick or lived with someone who

4 felt sick to stay home. Id. The next day, on March 16, 2020, the Church temporarily

5 suspended in-person worship services and began streaming its services online. Id. ¶

6 19.

7

More than two months later, and as a direct result of the Governor’s orders,

8 the Church has been prohibited from resuming in-person worship services. Id. ¶ 20.

9 Consistent with its religious beliefs about corporate prayer, worship, and fellowship,

10 the Church believes that it is called to resume in-person services. Id. ¶ 21. Not only

11 have some parishioners been unable to participate in online services, but the

12 Church believes that neither virtual nor drive-in services satisfy the biblical

13 requirement that the Church meet in person for corporate worship. Id. ¶ 8.

14

Before Covid-19, the Church held two Sunday services with about 200

15 persons at each service. To ensure the health and safety of its staff and attendees,

16 the Church plans to hold in-person services up to 50% of its sanctuary’s capacity

17 while also providing for proper social distancing of at least six feet separation

18 between families and individuals. Id. ¶¶ 30–31. That amounts to about 90 people

19 per service. Id. ¶ 31.

20

The Church also has adopted—and will follow—strict social distancing and

21 health and safety protocols. These include:

22

• Holding services only on Sunday and Wednesday;

23

• Limiting Sunday services to 45 minutes (as opposed to the usual 90

24

minutes);

25

• Holding up to three services each Sunday to guarantee adequate space for

26

social distancing at each service;

3

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 10 of 28

1

• Providing ½ hour between services to allow for thorough cleaning and

2

sanitizing of the sanctuary, hallways, bathrooms, and common surfaces;

3

• Posting signs on walls and floors to direct traffic;

4

• Posting signs on restroom doors limiting use to one person at a time;

5

• Posting signs in the restrooms encouraging proper washing of hands;

6

• Making hand sanitizer stations easily accessible to attendees;

7

• Encouraging attendees to arrive no earlier than 25 minutes before service;

8

• Using parking attendants to direct cars to designated parking areas;

9

• Directing all attendees to a designated entrance;

10

• Directing attendees to sanctuary seating designed to provide six feet of

11

separation between families and individuals;

12

• Ensuring that all traffic for each service will be in one direction by using

13

“first in, last out” model;

14

• Advising attendees of proper social distancing protocols;

15

• Encouraging attendees to bring and wear face coverings;

16

• Requiring all servants greeting or directing attendees to wear face

17

coverings;

18

• Prohibiting any handouts or items to be passed to attendees during

19

services;

20

• Prohibiting snacks or coffee from being served;

21

• Using prepacked Communion elements whenever served;

22

• Directing attendees out of the building to the parking area at the end of

23

each service; and

24

• Instructing attendees to refrain from congregating in the building.

25 Id. ¶ 32.

26

4

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 11 of 28

1

C. Governor Sisolak’s Orders

2

On March 12, 2020, Governor Sisolak declared a state of emergency in

3 response to the Covid-19 outbreak. See Declaration of Emergency (FAC, Ex. 3).

4 Noting that the Nevada Constitution gives him “[t]he supreme executive power of

5 this State,” Governor Sisolak “direct[ed] all state agencies to supplement the efforts

6 of all impacted and threatened counties” and further announced that he would

7 “perform and exercise such other functions, powers, and duties as are necessary to

8 promote and secure the safety and protection of the civilian population.” Id.

9

Five days later, Governor Sisolak held a press conference and explained

10 actions the State would be taking to mitigate the risks associated with Covid-19.

11 See Press Release, Mar. 17, 2020 (FAC, Ex. 4). Notably, Governor Sisolak assured

12 “faith leaders” that he “cannot and will not say that places of worship should be

13 closed.” Id. at 4. That promise, however, proved to be short lived.

14

“Essential” and “Non-Essential Businesses. Shortly after holding his

15 press conference, Governor Sisolak issued an order mandating the closure of all

16 “Non-Essential Businesses.” See Directive 003 (FAC, Ex. 5). That order defined

17 “Non-Essential Businesses” to include, among other things, businesses that

18 “promote recreational social gathering activities” and businesses that “promote

19 extended periods of public interaction where the risk of [Covid-19] transmission is

20 high,” such as “beauty shops, barber shops, [and] nail salons.” Id., §§ 1, 2. The order

21 therefore also limited restaurants and food establishments to “take-out, drive-

22 through, curbside pickup, [and] delivery” service and prohibited them from

23 providing dine-in service to any customers. Id., § 3.

24

The Governor’s order did not close “Essential Licensed Business[es]” but

25 encouraged them “to continue operation.” Id., § 4. In connection with that order, the

26 State adopted emergency regulations further defining “essential” and “non-

5

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 12 of 28

1 essential” businesses. See Emergency Regulations, March 20, 2020 (FAC, Ex. 6).

2 Businesses not delineated in the Governor’s order or in the emergency regulations

3 could continue operations if they could “implement social distancing safeguards for

4 the protection of their employees” and, “[t]o the extent practicable, provide services

5 without causing members of the Nevada general public to congregate in a manner

6 contrary to social distancing goals of a minimum of six feet of separation for more

7 than incidental contact.” Directive 003, § 8 (FAC, Ex. 5).

8

Because neither the Governor’s order about “essential” and “non-essential”

9 businesses nor the emergency regulations referenced churches or places of worship,

10 they should have been allowed to continue operations and in-person services.

11

The Church Gathering Ban. A few days later, Governor Sisolak issued

12 another order—this time forbidding the “general public” from “gather[ing] in groups

13 of ten or more in any indoor or outdoor area.” Directive 007, § 1 (FAC, Ex. 7). And

14 even though the Governor had assured faith leaders that he would not shut down

15 their services, he later prohibited “[p]laces of worship” from “hold[ing] in-person

16 worship services where ten or more persons may gather.” Directive 013, § 4 (FAC,

17 Ex. 9). The Governor’s office then issued “guidance” claiming “this is not yet the

18 time to get people together to celebrate their faith” and that “nobody should be

19 physically attending in-person worship services.” Guidance: Directive 013, Apr. 8,

20 2020 (FAC, Ex. 10). Governor Sisolak continued to impose this ten-person

21 restriction on churches during Phase 1 of the state’s reopening plan. FAC ¶ 54.

22

On May 26, 2020, Governor Sisolak announced that Nevada would be moving

23 into Phase 2 of the state’s reopening plan on Friday, May 29. FAC ¶ 55. Although

24 the Governor announced that even more “non-essential” businesses and activities

25 will be allowed in Phase 2, in-person worship services will be restricted to 50 people.

26 FAC ¶ 56. The Church Gathering Ban is indefinite.

6

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 13 of 28

1

Secular Exceptions to the Gathering Restrictions. There are many

2 secular exceptions to the Governor’s gathering restrictions. For one thing, the

3 restrictions do not apply to “the gathering of persons . . . working at or patronizing

4 Essential Licensed Businesses or providing essential services to the public.”

5 Directive 007, § 1 (FAC, Ex. 7). Thus, at least 28 categories of businesses have been

6 exempted all along from the Governor’s gathering restrictions. This includes, for

7 example:

8

•

“Essential infrastructure operations,” including “airport[s]”;

9

•

“Businesses that ship or deliver goods directly to residences”;

10

• “Banks and Financial Institutions”;

11

• “Pawnbrokers”;

12

• Businesses or entities that provide “social services for economically

13

disadvantaged individuals, vulnerable populations, or victims of

14

crime”;

15

• “Laundromats and dry cleaners”;

16

• “Warehouses and storage facilities”;

17

• “Professional or technical services including legal, accounting, tax,

18

payroll, real estate, and property management services”;

19

•

“Child care facilities”; and

20

•

“Newspapers, television, radio, and other media services.”

21 See NAC 414.XXX(1) (FAC, Ex. 6).

22

Moreover, Governor Sisolak’s “Phase One” order exempted certain “non-

23 essential” businesses and activities and allowed:

24

•

All restaurants and food establishments to resume onsite, in-person

25

dining—up to “50% of the maximum seating capacity under normal

26

circumstances”;

7

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 14 of 28

1

• All retail businesses to reopen at 50% capacity;

2

• Auto showrooms, furniture showrooms, home furnishing showrooms,

3

and appliance showrooms to reopen at 50% capacity;

4

• Cannabis dispensaries to resume in-person sales; and

5

• Nail care salons, hair salons, and barber shops to reopen.

6 Directive 018, §§ 13, 15, 16, 17, 22 (FAC, Ex. 12).

7

And just this week, the Governor exempted even more “non-essential”

8 businesses and activities as part of Phase 2, allowing the following to now reopen:

9

• Gyms and fitness facilities, including group fitness classes, up to 50%

10

building capacity;

11

• Bars and taverns, up to 50% capacity;

12

• Salons and other businesses that provide aesthetic or skin services,

13

including facials, hair removal, tanning, eyelash services, eyebrow

14

threading, and salt therapy;

15

• Day and overnight spas;

16

• Massage services;

17

• Body art and piercing establishments;

18

• Aquatic facilities and swimming pools, up to 50% capacity;

19

• Water parks, up to 50% capacity;

20

• Museums, art galleries, zoos, and aquariums, up to 50% capacity;

21

• Outdoor venues, like mini golf and amusement parks;

22

• Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to

23

50% capacity; and

24

• Casinos (starting June 4).

25

26

8

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 15 of 28

1

LEGAL STANDARD

2

The same standard applies to requests for preliminary injunctions and

3 requests for temporary restraining orders. Quiroga v. Chen, 735 F. Supp. 2d 1226,

4 1228 (D. Nev. 2010). To obtain a preliminary injunction or restraining order, the

5 plaintiff must establish (1) that it is likely to succeed on the merits, (2) that it is

6 likely to suffer irreparable harm in the absence of preliminary relief, (3) that the

7 balance of equities tips in its favor, and (4) that an injunction is in the public

8 interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord

9 Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012).

10

To satisfy the “likelihood of success” element, the Church does not have to

11 “prove his case in full” or show that it is “more likely than not to prevail.” Koller v.

12 Brown, 224 F. Supp. 3d 871, 875 (N.D. Cal. 2016) (internal citation and quotations

13 omitted). Rather, the Church must show only that it has a “fair chance of success on

14 the merits” or raises questions “serious enough to require litigation.” Id. (internal

15 quotations omitted).

16

ARGUMENT

17 I. The Church is likely to succeed on the merits of its claims.

18

This Court should grant the Church’s motion because it is likely to succeed on

19 the merits of one or more of its claims.

20

A. The Church Gathering Ban violates the Free Exercise Clause.

21

The Free Exercise Clause protects the Church’s right to gather for religious

22 worship and the Church Gathering Ban restricts that right. Strict scrutiny

23 therefore applies because the Ban is neither neutral nor generally applicable and

24 because it involves a system of “individualized government assessments.” Church of

25 the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993).

26

9

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 16 of 28

1

1. The Ban triggers strict scrutiny because it is not generally

applicable. 2
Under the Free Exercise Clause, a law or rule that is not generally applicable

3 is subject to strict scrutiny. Id. at 531. A law is not generally applicable if it “fail[s]

4 to prohibit nonreligious conduct that endangers” the government’s interest “in a

5 similar or greater degree” than the prohibited religious conduct. Id. at 542.

6 Here, the State is not pursuing its purported interest evenhandedly, favoring

7 secular businesses and activities over religious services. Indeed, the Governor has

8 artificially capped church services at 50 people but allowed:

9 • Movie theaters, bowling alleys, and indoor malls to reopen at 50%

10 capacity;

11 • Museums, art galleries, zoos, and aquarium to reopen at 50% capacity;

12 • Restaurants and food establishments to resume onsite, in-person dining at

13 50% capacity;

14 • Bars and taverns to reopen at 50% capacity;

15 • Non-essential retail businesses to reopen at 50% capacity;

16 • Gyms and fitness facilities, including group fitness classes, to reopen at

17 50% capacity;

18 • Aquatic facilities and pools to reopen at 50% capacity;

19 • Massage services to resume;

20 • Nail care salons, hair salons, and barber shops to reopen; and

21 • Casinos to reopen June 4.

22 Directive 018, §§ 13, 15, 16, 17, 22 (FAC, Ex. 12); Press Release, May 26, 2020

23 (FAC, Ex. 13).

24 These exemptions are constitutionally significant. Indeed, the Governor has

25 exempted from his gathering restrictions businesses and activities that prior orders

26

10

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 17 of 28

1 have determined “promote extended periods of public interaction where the risk of

2 [Covid-19] transmission is high.” Directive 003, § 2 (FAC, Ex. 5).

3

What is more, these exemptions from the State’s gathering restrictions are in

4 addition to 28 other categories of previously exempted activities and businesses.

5 Even before the Governor exempted the “non-essential” businesses and activities

6 identified above, the State’s gathering restrictions—including both the earlier 10-

7 person limit and current 50-person limit—did not apply to “the gatherings of

8 persons . . . working at or patronizing Essential Licensed Businesses or providing

9 essential services to the public.” Directive 007, § 1 (FAC, Ex. 7). That means an

10 unlimited number of people can assemble for an unlimited period of time to, among

11 other things, work at or patronize: “essential infrastructure operations,” including

12 “airports”; “businesses that ship or deliver goods directly to residences”; “banks and

13 financial institutions”; “pawnbrokers”; businesses or entities that provide “social

14 services for economically disadvantaged individuals, vulnerable populations, or

15 victims of crime”; “laundromats and dry cleaners”; “warehouses and storage

16 facilities”; “professional or technical services including legal, accounting, tax,

17 payroll, real estate, and property management services; “child care facilities”; and

18 “newspapers, television, radio, and other media services.” NAC 414.XXX(1) (FAC,

19 Ex. 6).

20

Given these exemptions, the Church Gathering Ban cannot reasonably be

21 said to be “generally applicable.” Indeed, the Sixth Circuit recently recognized as

22 much in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), where it held that the

23 Kentucky Governor’s restrictions on in-person worship services likely violated the

24 Free Exercise Clause because there were “serial exemptions for secular activities

25 [that] pose comparable public health risks.”

26

11

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 18 of 28

1

So too here. In fact, even those courts that have upheld restrictions on in-

2 person worship services during the Covid-19 outbreak have explained that the

3 analysis and outcome would be different if the governors there did what the Nevada

4 Governor has done here. See, e.g., Calvary Chapel of Bangor v. Mills, No. 1:20-cv-

5 00156, 2020 WL 2310913, at *8 (D. Me. May 9, 2020) (holding that Governor’s

6 Covid-19 orders were generally applicable because certain entities, including

7 “restaurants” and “movie theaters,” faced “the same restrictions as the [church]”);

8 Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832, 2020 WL 2121111, at *6

9 (E.D. Cal. May 5, 2020) (stating that a “restaurant” or “movie” is “[a] more apt

10 comparison” to an in-person church service, where “a large group of individuals

11 come together at the same time in the same place for the same purpose”).

12

Because the many secular exemptions from the State’s gathering restrictions

13 undermine the government’s purported interest in slowing or preventing the spread

14 of Covid-19, the Governor’s orders are not generally applicable. The Church

15 Gathering Ban therefore triggers strict scrutiny. Lukumi, 508 U.S. at 543–44; see

16 also Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1234–35 (11th Cir.

17 2004) (exempting clubs and lodges, but not houses of worship, “violates the

18 principles of neutrality and general applicability because private clubs and lodges

19 endanger [the town’s] interest in retail synergy as much or more than churches and

20 synagogues”); Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170

21 F.3d 359, 366 (3d Cir. 1999) (Alito, J.) (“[W]hen the government makes a value

22 judgment in favor of secular motivations, but not religious motivations, the

23 government’s actions must survive heightened scrutiny.”)

24

25

26

12

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 19 of 28

1

2. The Ban also triggers strict scrutiny because it is not

neutral. 2

The Church Gathering Ban triggers strict scrutiny for another independent 3

reason: it is not neutral. See Lukumi, 508 U.S. at 531. 4

For one thing, the Church Gathering Ban is not even facially neutral. The 5

Governor specifically calls out religious gatherings, prohibiting places of worship 6

from holding in-person services of more than 50 people and accusing churches of 7

being “hotspots for COVID-19 transmission.” Press Release, May 26, 2020 (FAC, Ex. 8

13). 9

Moreover, “[t]he Free Exercise Clause bars even ‘subtle departures from 10

neutrality’ on matters of religion.” Masterpiece Cakeshop, Ltd. v. Colorado Civil 11

Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting Lukumi, 508 U.S. at 534). 12

The Supreme Court has explained that a law or rule is not neutral if it singles out 13

religious conduct for adverse treatment; visits “gratuitous restrictions on religious 14

conduct”; creates a “religious gerrymander” that in practical effect singles out 15

religious practices for worse treatment; or treats the same conduct as lawful when 16

performed for secular reasons but unlawful when performed for religious reasons. 17

Lukumi, 508 U.S. at 533–35; accord Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) 18

(“Faith-based discrimination can come in many forms,” including in laws or rules 19

that “might appear to be generally applicable on the surface but not be so in 20

practice due to exceptions for comparable secular activities”). The Supreme Court’s 21

free-exercise jurisprudence therefore demands that this Court “survey 22

meticulously,” Lukumi, 508 U.S. at 534, the risks and character of the businesses 23

and activities that the State continues to allow. 24

Here, the Church Gathering Ban places an artificial numerical cap on 25

religious services rather than allow houses of worship to hold services in accordance 26

13

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 20 of 28

1 with social-distancing and safety guidelines, as the State allows for many secular

2 businesses and activities. The Church has voluntarily adopted procedures more

3 than adequate to this end. See FAC ¶¶ 35–36. While the State has imposed a strict

4 numerical limit on the Church’s religious services, there is no such limitation for

5 the secular businesses and activities detailed above.

6

In other words, with the Church Gathering Ban, the State has targeted the

7 Church for unfair treatment while allowing great latitude for preferred secular

8 businesses and activities. This includes even “non-essential” businesses and

9 activities that the State determined “promote extended periods of public interaction

10 where the risk of [Covid-19] transmission is high.” Directive 003, § 2 (FAC, Ex. 5).

11 Remarkably, the State trusts its residents to socially distance and follow general

12 health and safety guidelines while gathering on a daily basis for similar secular

13 activities, but it does not trust them to do so once or twice a week if they are

14 assembling for religious purposes. This is unconstitutional. See Lukumi, 508 U.S. at

15 547 (strict scrutiny applies “even upon slight suspicion” that “state intervention”

16 stems from “distrust of [religious] practices”); accord Berean Baptist Church v.

17 Cooper, No. 4:20-CV-81-D, 2020 WL 2514313, at *9 (E.D.N.C. May 16, 2020)

18 (applying strict scrutiny to Governor’s restrictions on in-person church services

19 because exceptions for other activities “reveals that the Governor appears to trust

20 citizens to perform non-religious activities indoors (such as shopping or working or

21 selling merchandise) but does not trust them to do the same when they worship

22 indoors together”).

23

24

25

26

14

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 21 of 28

1

3. The Ban triggers strict scrutiny because it involves a system

of individual exemptions. 2

The Church Gathering Ban also triggers strict scrutiny because it involves “a 3

system of individual exemptions.” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 4

494 U.S. 872, 884 (1990). 5

In Smith, the Supreme Court held that laws burdening religious exercise 6

must survive strict scrutiny if they are not “neutral” towards religion or “of general 7

applicability.” Id. at 879. Applying that test, the Court held that the Free Exercise 8

Clause did not prohibit the government from denying unemployment benefits to a 9

worker fired for using illegal drugs, even if the drugs were used for religious 10

reasons. Id. at 890. In so doing, the Court was careful to distinguish neutral, 11

generally applicable drug laws from laws allowing a government official to make an 12

“individualized … assessment of the reasons for the relevant conduct.” Id. at 882–84 13

(citing cases). 14

In explaining this distinction, the Court discussed Sherbert v. Verner, 374 15

U.S. 398 (1963), which involved an unemployment compensation law that allowed 16

the government to deny unemployment benefits if the person refused work “without 17

good cause.” Smith, 494 U.S. at 884. The Court explained that strict scrutiny 18

applied in Sherbert because the law’s “good cause” inquiry “created a mechanism for 19

individualized exemptions” depending on a government official’s discretion. Id. at 20

884–85. It then held that, “where the State has in place a system of individual 21

exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ 22

without compelling reason.” Id. at 884. 23

This case falls within the “individualized assessments” exception to Smith. 24

By declaring a state of emergency, the Governor has given himself unbridled 25

discretion to grant individualized exemptions from any of his orders, including 26

15

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 22 of 28

1 gathering restrictions. And the Governor has exercised that discretion. He has

2 excused a wide-array of both “essential” and “non-essential” businesses from the

3 State’s prohibition of gatherings of 50 or more people, while refusing to extend a

4 similar accommodation to the Church’s services.

5

Because the Governor’s exercise of power has resulted in a system of

6 “individual exemptions,” he cannot now “refuse to extend that system to cases of

7 ‘religious hardship’” without surviving strict scrutiny. Smith, 494 U.S. at 884;

8 accord Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456 F.3d 978, 993

9 (9th Cir. 2006) (“When such regulations involving individualized assessments

10 impose substantial burdens on religious exercise, they are subject to strict scrutiny

11 to protect and vindicate the right of free exercise of religion from governmental

12 encroachment.”).

13

B. The Church Gathering Ban violates the Church’s free speech

and assembly rights. 14

Religious speech is protected under the First Amendment. See, e.g., Widmar 15

v. Vincent, 454 U.S. 263, 269 (1981); Lovell v. City of Griffin, 303 U.S. 444 (1938). 16

And the government may not restrict private speech on private property, religious 17

or otherwise, without satisfying strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 18

155 (2015) (town’s sign ordinance restricting speech “on private property or on a 19

public right of way” subject to strict scrutiny). 20

Here, the State has banned the Church from holding worship services on its 21

own property. Because the Church’s services consist entirely of protected expression 22

and speech, such as praise and worship, participation in biblical ordinances and 23

rites, and religious preaching and teaching, the Church Gathering Ban restricts 24

speech and triggers strict scrutiny. 25

26

16

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 23 of 28

1

In addition, the Governor’s orders restrict religious expression but do not

2 impose a similar restriction on secular expressive activities performed at museums,

3 movie theaters, art galleries, and fitness classes. See S. Oregon Barter Fair v.

4 Jackson Cnty., Or., 372 F.3d 1128 (9th Cir. 2004) (“religious ceremonies” are

5 “expressive”). Such a content- and viewpoint-based restriction likewise triggers

6 strict scrutiny. See Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741,

7 746 (9th Cir. 2012) (content-based restriction triggers strict scrutiny).

8

As explained below, the Defendants cannot satisfy that rigorous standard.

9

C. The Church Gathering Ban fails strict scrutiny.

10

Because strict scrutiny applies, Defendants must prove that banning the

11 Church’s in-person services “advance[s] interests of the highest order and [is]

12 narrowly tailored in pursuit of those interests.” Lukumi, 508 U.S. at 546.

13 Defendants cannot satisfy this “highest level of review.” Susan B. Anthony List v.

14 Driehaus, 814 F.3d 466, 473 (6th Cir. 2016).

15

While enacting safety measures to curb the spread of Covid-19 may generally

16 be considered a compelling interest, this Court must still “scrutinize the asserted

17 harm of granting specific exemptions to particular religious claimants.” Burwell v.

18 Hobby Lobby Stores, Inc., 573 U.S. 682, 726–27 (2014). Even “plausible hypotheses

19 are not enough to satisfy strict scrutiny,” Contractors Ass’n of E. Pa. v. City of

20 Phila., 6 F.3d 990, 1008 (3d Cir. 1993), and “ambiguous proof will not suffice,”

21 Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 800 (2011). Thus, “broadly

22 formulated” statewide interests and generalized descriptions of health risks, like

23 those referenced by the Governor here, are not compelling. See Gonzales v. O Centro

24 Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). And “a law cannot

25 be regarded as protecting an interest ‘of the highest order’ when it leaves

26

17

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 24 of 28

1 appreciable damage to that supposedly vital interest unprohibited,” Lukumi, 508

2 U.S. at 547 (internal markings omitted), as the many secular exemptions do here.

3

What is more, Defendants must establish that the Church Gathering Ban is

4 the “least restrictive means” of furthering any compelling interest that they might

5 have—a burden that they cannot possibly carry for three independent reasons.

6

First, Defendants cannot show that it is necessary to subject the entire state

7 to its restrictions. Indeed, CDC guidance for faith-based organizations recommends

8 a graduated approach based on community risk.1 And such approach must be

9 equally applied to secular gatherings. But the wisdom (and practicality) of such an

10 individually tailored, less-restrictive means is completely missing from the

11 Governor’s blanket, statewide approach.

12

Second, and as detailed above, the Governor has exempted numerous secular

13 activities and facilities from the gathering restriction currently placed on houses of

14 worship. Although the Church Gathering Ban identifies places of worship for

15 increased regulation, indoor gatherings that invite similar or greater interpersonal

16 interaction—such as gatherings at casinos, movie theaters, museums, restaurants,

17 bars and taverns, gyms, fitness centers, retail establishments, professional office

18 environments, nail salons, barbers, hair salons, and amusement parks (to name just

19 a few)—are left unregulated, except by the less-restrictive means of general social

20 distancing and hygiene guidelines. See Lukumi, 508 U.S. at 536–38 (concluding that

21 when the same conduct “in almost all other circumstances [goes] unpunished,”

22 religious conduct has been unconstitutionally “singled out for discriminatory

23 treatment”); accord First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL

24

25 1 See, e.g., Center For Disease Control & Prevention,
26 https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-
gatherings-ready-for-covid-19.html (last visited May 27, 2020).

18

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 25 of 28

1 1910021 (D. Kan. Apr. 18, 2020) (“Plaintiffs can likely show that the broad

2 prohibition against in-person religious services of more than ten congregants is not

3 narrowly tailored to achieve the stated public health goals where the comparable

4 secular gatherings are subjected to much less restrictive conditions.”).

5

Finally, the Governor has offered no justification for why compliance with

6 social-distancing and hygiene requirements on the part of churches would not

7 satisfy the government’s public health interest. Indeed, the continued reliance on

8 social-distancing and hygiene restrictions for similar secular activities proves that

9 the additional restrictions and burdens placed on religious services are not the

10 least-restrictive way to satisfy the State’s purported interest. The State simply

11 cannot justify allowing movie theaters, restaurants, bars, gyms, fitness centers,

12 water parks, retail establishments, and other secular businesses to operate at 50%

13 or greater capacity (for upwards of eight hours per day, seven days a week) while

14 criminalizing every in-person church service (no matter how short or infrequent)

15 just because it involves more than 50 people. See Roberts, 958 F.3d 409 (6th Cir.

16 2020) (“How can the same person be trusted to comply with social-distancing and

17 other health guidelines in secular settings but not be trusted to do the same in

18 religious settings? The distinction defies explanation.”).

19 II. Covid-19 does not justify banning the Church’s services while allowing larger secular gatherings.
20 Defendants may argue that Covid-19 poses a unique circumstance that
21 removes the Church Gathering Ban from a traditional constitutional analysis. But
22 the government’s exercise of emergency powers “is not conclusive or free from
23 judicial review.” United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971). And
24 the “individual rights secured by the Constitution do not disappear during a public
25 health crisis.” In re Abbott, 2020 WL 1685929, at *6 (5th Cir. Apr. 7, 2020). These
26

19

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 26 of 28

1 individual rights are always in force and restrain government action. Thus, “[a]

2 local enactment or regulation, even if based on the acknowledged police powers of a

3 state, must always yield in case of conflict . . . with any right which [the U.S.

4 Constitution] gives or secures.” Jacobson v. Commonwealth of Mass., 197 U.S. 11,

5 25 (1905).

6

Indeed, the Supreme Court has instructed courts to intervene in situations

7 precisely like this one—where the law at issue “has no real or substantial relation

8 to [public health], or is, beyond all question, a plain, palpable invasion of rights

9 secured by the fundamental law.” Jacobson, 197 U.S. at 31.

10

Here, the Church Gathering Ban cites no authority that merely being present

11 in a church building with more than 50 people poses a unique and unacceptable

12 threat to public health and safety. And the Governor has pointed to no scientific,

13 public health, or other authority that explains why religious services or activities

14 pose a special health risk in a way that other exempt secular activities and facilities

15 do not. The Church Gathering Ban does not allow the Church to hold its services

16 while following social distancing and health and safety protocols. Without

17 explanation, however, the Governor has allowed many similarly situated businesses

18 to open to unlimited numbers people so long as social distancing protocol is

19 followed.

20

Such disparate treatment cannot survive under Jacobson. In fact, the Sixth

21 Circuit recently cited Jacobson in temporarily enjoining similar restrictions on in-

22 person church services, explaining that “restrictions inexplicably applied to one

23 group and exempted from another do little further” the government’s goal of slowing

24 the spread of the virus. Roberts, 958 F.3d 409 (6th Cir. 2020). After all, if the same

25 precautions are taken, “why can someone safely [sit in a restaurant or movie

26 theater] but not a pew? And why can someone safely interact with a brave

20

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 27 of 28

1 [waitress, barber, or nail technician] but not with a stoic minister?” Id. Like the

2 government in Roberts, the Defendants here “have no good answers.” Id.

3 III. The Church has already suffered and will continue to suffer

irreparable harm without an injunction. 4

The Supreme Court recognizes that “the deprivation of First Amendment 5

freedoms, for even minimal periods of time, unquestionably constitutes irreparable 6

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). As detailed above, the Church 7

Gathering Ban violates the Church’s constitutional rights and will continue to 8

violate its rights without immediate relief. 9

IV. The balance of equities sharply favors the Church. 10

11

The equities favor the Church because the law places a premium on

12 protecting constitutional rights. The Church Gathering Ban irreparably harms the

13 Church’s constitutional rights and significantly hinders its ministry to its

14 parishioners and community. Meanwhile, an injunction need not harm Defendants

15 at all. Local health officials can subject infected persons to orders of isolation and

16 quarantine. And the State remains free to adopt permissible and reasonable

17 regulations for in-person worship services, including narrowly tailored social

18 distancing and health and safety measures, in a similar fashion as it has done with

19 secular activities. But a flat ban on services involving more than 50 people—

20 regardless of the protective measures in place—serves no governmental interest and

21 is not narrowly tailored.

22

V. An injunction would serve the public interest.

23

“[I]t is always in the public interest to prevent the violation of a party’s

24 constitutional rights.” Melendres, 695 F.3d at 1002. This is particularly true for

25 First Amendment freedoms. Because the requested injunction will accomplish this,

26 the public interest also favors an order protecting the Church.

21

Case 3:20-cv-00303-RFB-VCF Document 9 Filed 05/28/20 Page 28 of 28

1

CONCLUSION

2

For these reasons, Plaintiff Calvary Chapel Dayton Valley respectfully

3 requests that this Court grant this motion and allow the Church to resume in-

4 person worship services, in compliance with appropriate social distancing and

5 health guidelines, by this Sunday, May 31.

6

7 Respectfully submitted this 28th day of May 2020.
8

9

s/ Jason D. Guinasso

Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

10 Ryan J. Tucker (AZ Bar 034382)*

500 Damonte Ranch Pkwy, Suite 980

11 Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

Reno, NV 89521 Telephone: (775) 853-8746

12 15100 N. 90th Street

jguinasso@hutchlegal.com

Scottsdale, AZ 85260 13 Telephone: (480) 444-0020

14 kwaggoner@adflegal.org rtucker@adflegal.org

15 jgalus@adflegal.org

16 David A. Cortman (GA Bar 188810)* 17 ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE 18 Ste. D-1100
Lawrenceville, GA 30043 19 Telephone: (770) 339-0774 20 dcortman@ADFlegal.org

21 *Pro hac vice application pending

22

23

24

25

26

22

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 1 of 9

1

DECLARATION OF "GARRY D. LEIST"

2

I, Garry D. Leist, hereby declare and state as follows:

3 1. I am and have been at all time relevant hereto the Senior Pastor of Calvary Chapel

4

Dayton Valley (CCDV).

5 2. CCDV has operated as a Christian church in Dayton, Nevada, since February 5,

6

2006.

7 3. Our church is comprised of approximately 400 people who primarily live and work

8

in and around the Dayton area of Lyon County, Nevada.

9
4. We believe that the Bible is the inspired Word of God and infallible rule of faith

10
and practice. Therefore, the Bible is the foundation upon which CCDV operates

11
and is the basis on which it is governed.
12
5. Among other sacred aspects of our faith, we believe that the Bible commands
13
Christians to gather in-person for corporate prayer, worship, and fellowship and
14
that this sacred assembly is vital to our Christian identity and essential to our
15
spiritual growth in Christ. See Hebrews 10:24-25 (ESV) ("And let us consider how
16

to stir up one another to love and good works, not neglecting to meet together, as is
17

the habit of some, but encouraging one another, and all the more as you see the
18

Day drawing near").
19

20 6. Consistent with this belief, CCDV's mission and purpose is: (1) to continue

21

steadfastly in the apostles' doctrine and fellowship, in the breaking of bread, and in

22

prayers; (2) to worship God the Father, Son, and Holy Spirit; (3) to build up the

23

Church of Jesus Christ through the teaching of the Word of God and the ministry

24

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 2 of 9

1

of the Holy Spirit; and (4) to persuade men and women to repent and confess Jesus

2

Christ as Lord.

3 7. Although the building where we gather does not necessarily define who we are as

4

people of faith in Christ, the gathering of the "ekklesia" (which is the New

5

Testament Term for "Assembly" or "Called out") in one building in Dayton,

6

Nevada, is central to our expression of our faith in Jesus Christ.

7 8. The virtual and "drive-in" gatherings we have been forced to settle for during this

8
time of crisis are not an acceptable substitute for the communal gathering of our
9
Church. In addition, some of our church members do not have internet access or
10
the ability to participate in online services.
11
9. For CCDV, the gathering of the ekklesia is more than just a motivational speech
12
from a gifted orator, a deep teaching from a skilled teacher, or the warm feeling we
13
get when we sing worship songs together.
14
10. For the Christians who attend our church regularly, our assembly in our building
15
from week to week is the embodiment of Christ on earth. We believe that this is
16
how we best express His image and likeness together on earth. This sacred
17
assembly cannot be substituted via virtual meetings.
18

19 11. It our conviction and belief that we are not called to be isolated individuals

20

expressing Christ in the privacy of our homes, but a collective city on the hill

21

where Christ is expressed together to one another.

22 12. There are over 100 New Testament scriptures addressing our commitments to one

23

another in the context of our weekly assembly, so while we are eager to do what is

24

safe and to care for one another and our community, we cannot settle for the notion

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 3 of 9

1

that what we are doing "virtually" or in our cars is an acceptable substitute for the

2

gathering of the ekklesia. Rather, the alternative meetings have been a deep

3

insult to our community, especially as we have watched the Governor allow

4

numerous secular businesses and activities resume without similar restrictions.

5 13. In summary, it is our sincerely-held religious belief that online services and drive-

6

in services do not meet the Lord's requirement that we meet together weekly in

7

person for corporate worship.

8 14. In addition to the central role of community gatherings for our church, we have

9
been and continue to be valuable contributors to the good of our community.
10 15. Our commitment to our solemn duty of love and service at all times, but especially
11 during the time of a public health crisis, means that we care for one another, our
12 congregation of believers, and the communities where we live, work, and serve.
13 16. The service of our church takes many forms, including responsibly hosting regular
14
services and providing ceremonies and sacraments for spiritual care and comfort, 15
providing assistance to the poor, to immigrants (documented and undocumented), 16

and to families in need, cal'ing for the elderly, ministering to the mental, 17

emotional, and spiritual needs of first responders and health care providers, 18

19

providing guidance to unemployed people as they manage the anxieties and

20

stresses of being jobless, helping raise money for PPE, medical equipment, and

21

supplies that health care professionals need, partnering with government leaders

22

to develop strategies for preventing the spread of disease and death. The foregoing

23

services that we provide are essential to the people and communities we serve and

24

have been substantially hindered by the Governor's directives.

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 4 of 9

1 17. In response to federal, state, and local guidance at the beginning of the Covid-19

2

outbreak-but before any local or state order prohibited in-person gatherings-we

3

voluntarily adopted rigorous social distancing and health safety measures for our

4

services.

5 18. In fact, immediately after the Governor declared a state of emergency on March 12,

6

2020, we took proactive steps for our March 15 services. We disinfected frequently

7

touched surfaces such as door handles, chairs, and tables before and after services;

8
made hand sanitizer available in multiple locations throughout the building's
9
common areas; advised church attendees to refrain from personal contact such as
10 handshakes and hugs; instructed those who felt sick or lived with someone who felt
11
sick to stay home; and encouraged online giving through the Church's website,
12
among other things.
13
19.And the next day, on March 16, 2020, out of concern for the health and safety of
14
our congregation and community, we temporarily suspended in-person worship
15
services and began streaming our services online.
16
20. More than two months later, the Governor's orders have prevented us from
17
resuming in-person worship services.
18

19 21.Although our initial decision to temporarily suspend in-person services was

20

voluntary, and made in an abundance of caution given the health and safety

21

concerns at the time, we believe we are now being called by our God to resume in-

22

person worship services, consistent with our religious beliefs about corporate

23

prayer, worship, and fellowship.

24

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 5 of 9

1 22. The people under my Pastoral care and I have patiently waited for Governor

2

Sisolak to restore our First Amendment freedoms. We had trusted that the

3

Governor would prioritize our constitutional rights, have respect for our sacred

4

assembly, and allow us to resume in-person worship services at the earliest

5

opportunity.

6 23. But that trust has been shattered each time the Governor has issued an order for

7

the past two months. Instead of prioritizing our guaranteed right to freely gather

8 in our sacred assembly, the Governor has prioritized "non-essential" secular

9
businesses and activities.
10 24. Even before his Phase 2 announcement, the Governor allowed restaurants and food
11
establishments to resume in-person, on-site dining at 50% capacity, allowed all 12
retail establishments to open at 50% capacity, and threw open the doors of nail 13
care salons, hair salons, and barber shops-businesses that the Governor's own 14
orders say "promote extended periods of public interaction where the risk of 15
[Covid-19] transmission is high." 16

25. Now, the Governor has added insult to the continued injury to our religious 17

18

expression by announcing that the following "non-essential" businesses can reopen

19

in Phase 2:

20

a. Gyms and fitness facilities, including group fitness classes, up to 50%

21

building capacity;

22

b. Bars and taverns, up to 50% capacity;

23

24

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 6 of 9

1

c. Salons and other businesses that provide aesthetic or skin services,

2

including facials, hair removal, tanning, eyelash services, eyebrow

3

threading, and salt therapy;

4

d. Day and overnight spas;

5

e. Massage services;

6

f. Body art and piercing establishments;

7

g. Aquatic facilities and swimming pools, up to 50% capacity;

8
h. Water parks, up to 50% capacity;
9
1. Museums, art galleries, zoos and aquariums, up to 50% capacity;
10
J. Outdoor venues, like mini golf and amusement parks;
11
k. Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to
12
50% capacity; and
13
1. Casinos (starting June 4). 14
26.However, the Governor's Phase 2 plan prohibits us from opening our doors to more
15
than 50 people under any circumstance.
16
27. This would mean we would have to have between 10 and 13 services to ensure our
17

18

church members could participate in our sacred Sunday assembly and time of

19

worship. This is neither feasible nor fair.

20 28. We are perplexed by the Governor's orders because large numbers of people can

21

gather for a similar or greater amount of time as our church service at restaurants,

22

non-essential retail establishments, nail salons, hair salons, barber shops, gyms,

23

fitness facilities, pools, water parks, museums, aquariums, amusement parks,

24

indoor malls, bowling alleys, movie theaters, and casinos, but it is illegal for the

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 7 of 9

1

Church-which is located in rural Lyon County-to hold in-person services with

2

more than 50 people.

3 29. Consistent with sincerely held religious convictions concerning our weekly sacred

4

assembly, we plan to resume in-person worship services on Sunday, May 31, 2020,

5

which the Holy Day of Pentecost Sunday. In this regard, we have developed

6

comprehensive social distancing and health and safety protocols to govern those

7

services.

8
30.Before Covid-19, the Church's two Sunday services could hold up to 200 people
9
each.

31. The Church seeks to hold in-person services at 50% of its sanctuary's capacity

11

while also providing for proper social distancing of at least six feet separation

12

between families and individuals, which would amount to approximately 90 people

13

1. n a servic. e.

14

32. In preparation for resuming in-person worship services, we have adopted-and will 15

follow-strict social distancing and health and safety protocols. These protocols
16

include the following precautions: 17

18

a. Holding only Sunday and Wednesday services;

19

b. Strictly limiting Sunday services to 45 minutes (as opposed to the usual 90

20

minutes);

21

c. Holding up to three services each Sunday to guarantee adequate space for

22

social distancing at each service;

23

d. Providing ½ hour between services to allow for thorough cleaning and

24

sanitizing of sanctuary, hallways, bathrooms, and common surfaces;

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 8 of 9

1

e. Posting signs on walls and floors to direct traffic;

2

f. Posting signs on restroom doors limiting use to one person at a time;

3

g. Posting signs in the restrooms encouraging proper washing of hands;

4

h. Making hand sanitizer stations easily accessible to attendees;

5

1. Encouraging attendees to arrive no earlier than 25 minutes before service;

6

J. Using parking attendants to direct cars to designated parking areas;

7

k. Directing all attendees to a designated entrance;

8
1. Directing attendees to sanctuary seating designed to provide 6-feet of
9
separation between families and individuals;
10
m. Ensuring that all traffic for each service will be in one direction by using 11
"first in, last out" model; 12
n. Advising attendees of proper social distancing protocols; 13
o. Encouraging attendees to bring and wear face coverings; 14
p. Requiring all servants greeting or directing attendees to wear face
15
covermgs;
16
q. Prohibiting any handouts or items to be passed to attendees during services; 17
r. Prohibiting snacks or coffee from being served;
18.

19

s. Using prepacked Communion elements whenever served;

20

t. Directing attendees out of the building to the parking area at the end of each

21

service;

22

u. Instructing attendees to refrain from congregating in the building.

23 33. Despite these health and safety measures, however, the Governor's orders threaten

24

me and the members of the church with criminal and civil penalties.

25

Case 3:20-cv-00303-RFB-VCF Document 9-1 Filed 05/28/20 Page 9 of 9

1

I declare under penalty of perjury pursuant to 28 U.S.C. 1746 that the foregoing is

2

true and correct to the best of my knowledge.

3

Executed this ~ g day of May 2020, in Dayton, Nevada.

4

5

Senior Pastor

6

Calvary Chapel Dayton Valley

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:20-cv-00303-RFB-VCF Document 9-2 Filed 05/28/20 Page 1 of 4

Case 3:20-cv-00303-RFB-VCF Document 9-2 Filed 05/28/20 Page 2 of 4

Case 3:20-cv-00303-RFB-VCF Document 9-2 Filed 05/28/20 Page 3 of 4

Case 3:20-cv-00303-RFB-VCF Document 9-2 Filed 05/28/20 Page 4 of 4

Case 3:20-cv-00303-RFB-VCF Document 9-3 Filed 05/28/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

CALVARY CHAPEL DAYTON VALLEY,
Plaintiff,
v.
STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official capacity as Sheriff of Lyon County,
Defendants.

Case No.: 3:20-cv-00303-LRH-CLB
[PROPOSED] ORDER

Upon consideration of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, the Memorandum and Exhibits in support thereof, any opposition, any reply thereto, and any oral argument, it is hereby:

ORDERED that Plaintiffs’ motion is GRANTED because (1) Plaintiff is likely to succeed on the merits of its claims alleging violations of the First Amendment; (2) in the absence of preliminary relief, Plaintiff is likely to suffer irreparable harm in the form of denial of its constitutional rights; (3) the balance of equities tips in Plaintiff’s favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth the elements required for preliminary injunctive relief).;

IT IS FURTHER ORDERED that a Temporary Restraining Order is hereby entered against Defendants.

Case 3:20-cv-00303-RFB-VCF Document 9-3 Filed 05/28/20 Page 2 of 2

IT IS FURTHER ORDERED that pursuant to the Order, Defendants are enjoined and ordered to refrain from enforcing those portions of the Governor’s orders that limit in-person church services to 50 or fewer persons, thereby allowing Plaintiff and its congregants to resume corporate prayer and worship while following the social distancing and public health protocols Plaintiff has indicated in its complaint that it is prepared to apply.

SO ORDERED.

DATED: MAY ___, 2020

United States District Judge

 
 Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 1 of 28

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4
Kristen K. Waggoner (AZ Bar 032382)* 5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street
Scottsdale, AZ 85260 8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*

ALLIANCE DEFENDING FREEDOM 12 1000 Hurricane Shoals Rd. NE

13 Ste. D-1100 Lawrenceville, GA 30043
14 Telephone: (770) 339-0774

dcortman@ADFlegal.org 15
*Pro hac vice application forthcoming 16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19 Plaintiff,
20
21 v.
22 STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his
23 official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official
24 capacity as Sheriff of Lyon County,

Case No.: 3:20-cv-00303-LRH-CLB
PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
ORAL ARGUMENT REQUESTED

25

Defendants.

26

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 2 of 28 ***EMERGENCY MOTION***

1

Pursuant to Fed. R. Civ. P. 65 and LR 7-4, Plaintiff Calvary Chapel Dayton Valley, hereby

2 moves the Court for a temporary restraining order and preliminary injunction, and permanent

3 injunction prohibiting Defendants from enforcing those portions of the Governor’s orders that limit

4 in-person church services to 50 or fewer persons, thereby allowing Plaintiff and its congregants to

5 resume corporate prayer and worship while following adequate social distancing and public health

6 guidelines.

7

In support of this motion, Plaintiff relies upon the attached memorandum of points and

8 authorities, the Declaration of Garry D. Leist, and the Declaration of Jason D. Guinasso Pursuant

9 to Local Rule 7-4. A proposed order is attached. Oral argument is respectfully requested.

10

Respectfully submitted this 28th day of May 2020.

11

s/ Jason D. Guinasso

Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

12 Ryan J. Tucker (AZ Bar 034382)*

500 Damonte Ranch Pkwy, Suite 980

13 Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

Reno, NV 89521 Telephone: (775) 853-8746

14 15100 N. 90th Street

jguinasso@hutchlegal.com

Scottsdale, AZ 85260 15 Telephone: (480) 444-0020

16 kwaggoner@adflegal.org rtucker@adflegal.org

17 jgalus@adflegal.org

18 David A. Cortman (GA Bar 188810)* 19 ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE 20 Ste. D-1100
Lawrenceville, GA 30043 21 Telephone: (770) 339-0774 22 dcortman@ADFlegal.org

23 *Pro hac vice application forthcoming

24

25

26

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 3 of 28

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4 Kristen K. Waggoner (AZ Bar 032382)*
5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street Scottsdale, AZ 85260
8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*
ALLIANCE DEFENDING FREEDOM 12 1000 Hurricane Shoals Rd. NE
13 Ste. D-1100 Lawrenceville, GA 30043
14 Telephone: (770) 339-0774
dcortman@ADFlegal.org 15
*Pro hac vice application pending 16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19
Plaintiff, 20

Case No.: 3:20-cv-00303-LRH-CLB

21 v.
22 STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his
23 official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official
24 capacity as Sheriff of Lyon County,

MEMORANDUM OF POINTS AND AUTHORTIIES IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

25

Defendants.

26

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 4 of 28

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................... ii

3 INTRODUCTION .......................................................................................................... 1

4 BACKGROUND ............................................................................................................. 2

5

A. Calvary Chapel Dayton Valley ........................................................... 2

6

B. The Church’s Plan to Resume In-Person Services ............................ 2

7

C. Governor Sisolak’s Orders .................................................................. 5

8 LEGAL STANDARD...................................................................................................... 9

9 ARGUMENT .................................................................................................................. 9

10

I.

The Church is likely to succeed on the merits of its claims......................... 9

11

A. The Church Gathering Ban violates the Free Exercise

12

Clause. ................................................................................................. 9

13

1. The Ban triggers strict scrutiny because it is not generally

applicable. .................................................................................... 10

14 2. The Ban also triggers strict scrutiny because it is not

15

neutral.......................................................................................... 13

16

3. The Ban triggers strict scrutiny because it involves a

system of individual exemptions................................................. 15 17

18

B. The Church Gathering Ban violates the Church’s free speech and assembly rights. ......................................................................... 16

19

C. The Church Gathering Ban fails strict scrutiny.............................. 17

20

II. Covid-19 does not justify banning the Church’s services while

21

allowing larger secular gatherings. ............................................................ 19

22

III. The Church has already suffered and will continue to suffer

irreparable harm without an injunction..................................................... 21

23

IV. The balance of equities sharply favors the Church.................................... 21

24

V. An injunction would serve the public interest............................................ 21

25

CONCLUSION............................................................................................................. 22 26

i

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 5 of 28

1

TABLE OF AUTHORITIES

2 Cases

3 Berean Baptist Church v. Cooper,

No. 4:20-CV-81-D, 2020 WL 2514313 (E.D.N.C. May 16, 2020) ..................... 14 4

Brown v. Entertainment Merchandisers Ass’n,

5

564 U.S. 786 (2011) ........................................................................................... 17

6 Burwell v. Hobby Lobby Stores, Inc.,

7

573 U.S. 682 (2014) ........................................................................................... 17

8 Calvary Chapel of Bangor v. Mills,

No. 1:20-cv-00156, 2020 WL 2310913 (D. Me. May 9, 2020)........................... 12

9

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

10

508 U.S. 520 (1993) ....................................................................................passim

11 Contractors Ass’n of Eastern Pa. v. City of Philadelphia,

12

6 F.3d 990 (3d Cir. 1993) .................................................................................. 17

13

Cross Culture Christian Center v. Newsom, No. 2:20-cv-00832, 2020 WL 2121111 (E.D. Cal. May 5, 2020)....................... 12

14 Elrod v. Burns,

15

427 U.S. 347 (1976) ........................................................................................... 21

16 Employment Division, Department of Human Resources of Or. v. Smith,

494 U.S. 872 (1990) ..................................................................................... 15, 16 17

First Baptist Church v. Kelly,

18

No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) ................. 18–19

19 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

20

170 F.3d 359 (3d Cir. 1999) .............................................................................. 12

21 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ........................................................................................... 17

22 Guru Nanak Sikh Society of Yuba City v. County of Sutter,

23

456 F.3d 978 (9th Cir. 2006) ............................................................................. 16

24 In re Abbott,

25

2020 WL 1685929 (5th Cir. Apr. 7, 2020) ........................................................ 19

26

Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905) ............................................................................................. 20

ii

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 6 of 28

1 Koller v. Brown,

224 F. Supp. 3d 871 (N.D. Cal. 2016) ................................................................. 9 2

Lovell v. City of Griffin,

3

303 U.S. 444 (1938) ........................................................................................... 16

4 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n,

5

138 S. Ct. 1719 (2018) ....................................................................................... 13

6 Melendres v. Arpaio,

695 F.3d 990 (9th Cir. 2012) ......................................................................... 9, 21

7

Midrash Sephardi, Inc. v. Town of Surfside,

8

366 F.3d 1214 (11th Cir. 2004) ......................................................................... 12

9 Quiroga v. Chen,

10

735 F. Supp. 2d 1226 (D. Nev. 2010) .................................................................. 9

11

Reed v. Town of Gilbert, 576 U.S. 155 (2015) ........................................................................................... 16

12 Roberts v. Neace,

13

958 F.3d 409 (6th Cir. 2020) ......................................................................passim

14 Sanders County Republican Cent. Comm. v. Bullock,

698 F.3d 741 (9th Cir. 2012) ............................................................................. 17 15

Sherbert v. Verner,

16

374 U.S. 398 (1963) ........................................................................................... 15

17 South Oregon Barter Fair v. Jackson County, Or.,

18

372 F.3d 1128 (9th Cir. 2004) ........................................................................... 17

19 Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016) ............................................................................. 17

20 United States v. Chalk,

21

441 F.2d 1277 (4th Cir. 1971) ........................................................................... 19

22 Widmar v. Vincent,

23

454 U.S. 263 (1981) ........................................................................................... 16

24

Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7 (2008) ................................................................................................. 9

25

26

iii

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 7 of 28

1

INTRODUCTION

2

This action challenges Governor Steve Sisolak’s emergency orders prohibiting

3 churches and other places of worship from holding in-person worship services of

4 more than 50 people, even when such services could be held in accordance with

5 social distancing and public health guidelines (the “Church Gathering Ban”).

6

For over two months, Covid-19 and the Governor’s Orders have prevented

7 Plaintiff Calvary Chapel Dayton Valley (the “Church”) from holding in-person

8 worship services. The Church has patiently waited for Governor Sisolak to restore

9 its First Amendment freedoms, trusting that the Governor would prioritize

10 constitutional rights and allow churches to resume in-person worship services at the

11 earliest opportunity. But that trust has been shattered.

12

Rather than prioritize religious freedom, the Governor has moved “non-

13 essential” secular businesses and activities to the front of the line and pushed

14 churches towards the back. Currently, in-person worship services of more than 50

15 people are banned across the state. But no such restriction applies to a host of

16 similarly situated secular businesses and gatherings, including movie theaters,

17 restaurants, bars, bowling alleys, amusement parks, indoor shopping malls, gyms,

18 fitness facilities, museums, art galleries, swimming pools, water parks, aquariums,

19 and casinos, to name just a few.

20

There is no good reason—let alone a constitutional one—for this disparate

21 treatment. Thus, the Church seeks to resume in-person worship services on Sunday,

22 May 31, and has adopted strict social distancing and hygiene protocols to govern

23 those services. Despite these health and safety measures, however, the Church

24 Gathering Ban threatens the Church with criminal and civil penalties. A temporary

25 restraining order and injunction are needed to preserve the Church’s constitutional

26 rights and allow it to resume worship services consistent with its religious beliefs.

1

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 8 of 28

1

BACKGROUND

2

A. Calvary Chapel Dayton Valley

3

Calvary Chapel Dayton Valley (“CCDV” or the “Church) has been serving its

4 community since 2006. First Am. Compl. (“FAC”) ¶ 20; Leist Decl. ¶¶ 2, 14–15. As a

5 Christian church, the Church believes that the Bible is the inspired Word of God

6 and sole authority for faith and practice; it is the foundation upon which the Church

7 operates and the basis on which it is governed. Leist Decl. ¶ 4. Among other things,

8 the Church believes that the Bible commands Christians to gather in-person for

9 corporate prayer, worship, and fellowship and that such assembly is necessary and

10 good for the Church and its members’ spiritual growth. Id. ¶¶ 5, 7–13; accord

11 Hebrews 10:24–25 (ESV) (“And let us consider how to stir up one another to love

12 and good works, not neglecting to meet together, as is the habit of some, but

13 encouraging one another, and all the more as you see the Day drawing near). The

14 gathering of the “ekklesia”—the New Testament term for “assembly” or “called

15 out”—is central to the Church’s faith in Jesus Christ. Leist Decl. ¶ 7. Indeed, the

16 Church believes that such assembly is “the embodiment of Christ on earth” and how

17 believers “best express His image and likeness.” Id. ¶ 10. This “sacred assembly”

18 cannot simply be substituted with virtual or “drive-in” services. Id.

19

B. The Church’s Plan to Resume In-Person Services

20

In response to federal, state, and local guidance at the beginning of the

21 Covid-19 outbreak—but before any local or state order prohibited in-person

22 gatherings—the Church voluntarily adopted rigorous social distancing and health

23 safety measures for its worship services. Id. ¶ 17.

24

Right after Governor Sisolak declared a state of emergency on March 12, the

25 Church took proactive steps for its upcoming March 15 services. Id. ¶ 18. The

26 Church disinfected common surfaces such as door handles, chairs, and tables before

2

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 9 of 28

1 and after services; made hand sanitizer available in multiple locations throughout

2 common areas; advised attendees to refrain from personal contact such as

3 handshakes and hugs; and instructed those who felt sick or lived with someone who

4 felt sick to stay home. Id. The next day, on March 16, 2020, the Church temporarily

5 suspended in-person worship services and began streaming its services online. Id. ¶

6 19.

7

More than two months later, and as a direct result of the Governor’s orders,

8 the Church has been prohibited from resuming in-person worship services. Id. ¶ 20.

9 Consistent with its religious beliefs about corporate prayer, worship, and fellowship,

10 the Church believes that it is called to resume in-person services. Id. ¶ 21. Not only

11 have some parishioners been unable to participate in online services, but the

12 Church believes that neither virtual nor drive-in services satisfy the biblical

13 requirement that the Church meet in person for corporate worship. Id. ¶ 8.

14

Before Covid-19, the Church held two Sunday services with about 200

15 persons at each service. To ensure the health and safety of its staff and attendees,

16 the Church plans to hold in-person services up to 50% of its sanctuary’s capacity

17 while also providing for proper social distancing of at least six feet separation

18 between families and individuals. Id. ¶¶ 30–31. That amounts to about 90 people

19 per service. Id. ¶ 31.

20

The Church also has adopted—and will follow—strict social distancing and

21 health and safety protocols. These include:

22

• Holding services only on Sunday and Wednesday;

23

• Limiting Sunday services to 45 minutes (as opposed to the usual 90

24

minutes);

25

• Holding up to three services each Sunday to guarantee adequate space for

26

social distancing at each service;

3

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 10 of 28

1

• Providing ½ hour between services to allow for thorough cleaning and

2

sanitizing of the sanctuary, hallways, bathrooms, and common surfaces;

3

• Posting signs on walls and floors to direct traffic;

4

• Posting signs on restroom doors limiting use to one person at a time;

5

• Posting signs in the restrooms encouraging proper washing of hands;

6

• Making hand sanitizer stations easily accessible to attendees;

7

• Encouraging attendees to arrive no earlier than 25 minutes before service;

8

• Using parking attendants to direct cars to designated parking areas;

9

• Directing all attendees to a designated entrance;

10

• Directing attendees to sanctuary seating designed to provide six feet of

11

separation between families and individuals;

12

• Ensuring that all traffic for each service will be in one direction by using

13

“first in, last out” model;

14

• Advising attendees of proper social distancing protocols;

15

• Encouraging attendees to bring and wear face coverings;

16

• Requiring all servants greeting or directing attendees to wear face

17

coverings;

18

• Prohibiting any handouts or items to be passed to attendees during

19

services;

20

• Prohibiting snacks or coffee from being served;

21

• Using prepacked Communion elements whenever served;

22

• Directing attendees out of the building to the parking area at the end of

23

each service; and

24

• Instructing attendees to refrain from congregating in the building.

25 Id. ¶ 32.

26

4

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 11 of 28

1

C. Governor Sisolak’s Orders

2

On March 12, 2020, Governor Sisolak declared a state of emergency in

3 response to the Covid-19 outbreak. See Declaration of Emergency (FAC, Ex. 3).

4 Noting that the Nevada Constitution gives him “[t]he supreme executive power of

5 this State,” Governor Sisolak “direct[ed] all state agencies to supplement the efforts

6 of all impacted and threatened counties” and further announced that he would

7 “perform and exercise such other functions, powers, and duties as are necessary to

8 promote and secure the safety and protection of the civilian population.” Id.

9

Five days later, Governor Sisolak held a press conference and explained

10 actions the State would be taking to mitigate the risks associated with Covid-19.

11 See Press Release, Mar. 17, 2020 (FAC, Ex. 4). Notably, Governor Sisolak assured

12 “faith leaders” that he “cannot and will not say that places of worship should be

13 closed.” Id. at 4. That promise, however, proved to be short lived.

14

“Essential” and “Non-Essential Businesses. Shortly after holding his

15 press conference, Governor Sisolak issued an order mandating the closure of all

16 “Non-Essential Businesses.” See Directive 003 (FAC, Ex. 5). That order defined

17 “Non-Essential Businesses” to include, among other things, businesses that

18 “promote recreational social gathering activities” and businesses that “promote

19 extended periods of public interaction where the risk of [Covid-19] transmission is

20 high,” such as “beauty shops, barber shops, [and] nail salons.” Id., §§ 1, 2. The order

21 therefore also limited restaurants and food establishments to “take-out, drive-

22 through, curbside pickup, [and] delivery” service and prohibited them from

23 providing dine-in service to any customers. Id., § 3.

24

The Governor’s order did not close “Essential Licensed Business[es]” but

25 encouraged them “to continue operation.” Id., § 4. In connection with that order, the

26 State adopted emergency regulations further defining “essential” and “non-

5

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 12 of 28

1 essential” businesses. See Emergency Regulations, March 20, 2020 (FAC, Ex. 6).

2 Businesses not delineated in the Governor’s order or in the emergency regulations

3 could continue operations if they could “implement social distancing safeguards for

4 the protection of their employees” and, “[t]o the extent practicable, provide services

5 without causing members of the Nevada general public to congregate in a manner

6 contrary to social distancing goals of a minimum of six feet of separation for more

7 than incidental contact.” Directive 003, § 8 (FAC, Ex. 5).

8

Because neither the Governor’s order about “essential” and “non-essential”

9 businesses nor the emergency regulations referenced churches or places of worship,

10 they should have been allowed to continue operations and in-person services.

11

The Church Gathering Ban. A few days later, Governor Sisolak issued

12 another order—this time forbidding the “general public” from “gather[ing] in groups

13 of ten or more in any indoor or outdoor area.” Directive 007, § 1 (FAC, Ex. 7). And

14 even though the Governor had assured faith leaders that he would not shut down

15 their services, he later prohibited “[p]laces of worship” from “hold[ing] in-person

16 worship services where ten or more persons may gather.” Directive 013, § 4 (FAC,

17 Ex. 9). The Governor’s office then issued “guidance” claiming “this is not yet the

18 time to get people together to celebrate their faith” and that “nobody should be

19 physically attending in-person worship services.” Guidance: Directive 013, Apr. 8,

20 2020 (FAC, Ex. 10). Governor Sisolak continued to impose this ten-person

21 restriction on churches during Phase 1 of the state’s reopening plan. FAC ¶ 54.

22

On May 26, 2020, Governor Sisolak announced that Nevada would be moving

23 into Phase 2 of the state’s reopening plan on Friday, May 29. FAC ¶ 55. Although

24 the Governor announced that even more “non-essential” businesses and activities

25 will be allowed in Phase 2, in-person worship services will be restricted to 50 people.

26 FAC ¶ 56. The Church Gathering Ban is indefinite.

6

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 13 of 28

1

Secular Exceptions to the Gathering Restrictions. There are many

2 secular exceptions to the Governor’s gathering restrictions. For one thing, the

3 restrictions do not apply to “the gathering of persons . . . working at or patronizing

4 Essential Licensed Businesses or providing essential services to the public.”

5 Directive 007, § 1 (FAC, Ex. 7). Thus, at least 28 categories of businesses have been

6 exempted all along from the Governor’s gathering restrictions. This includes, for

7 example:

8

•

“Essential infrastructure operations,” including “airport[s]”;

9

•

“Businesses that ship or deliver goods directly to residences”;

10

• “Banks and Financial Institutions”;

11

• “Pawnbrokers”;

12

• Businesses or entities that provide “social services for economically

13

disadvantaged individuals, vulnerable populations, or victims of

14

crime”;

15

• “Laundromats and dry cleaners”;

16

• “Warehouses and storage facilities”;

17

• “Professional or technical services including legal, accounting, tax,

18

payroll, real estate, and property management services”;

19

•

“Child care facilities”; and

20

•

“Newspapers, television, radio, and other media services.”

21 See NAC 414.XXX(1) (FAC, Ex. 6).

22

Moreover, Governor Sisolak’s “Phase One” order exempted certain “non-

23 essential” businesses and activities and allowed:

24

•

All restaurants and food establishments to resume onsite, in-person

25

dining—up to “50% of the maximum seating capacity under normal

26

circumstances”;

7

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 14 of 28

1

• All retail businesses to reopen at 50% capacity;

2

• Auto showrooms, furniture showrooms, home furnishing showrooms,

3

and appliance showrooms to reopen at 50% capacity;

4

• Cannabis dispensaries to resume in-person sales; and

5

• Nail care salons, hair salons, and barber shops to reopen.

6 Directive 018, §§ 13, 15, 16, 17, 22 (FAC, Ex. 12).

7

And just this week, the Governor exempted even more “non-essential”

8 businesses and activities as part of Phase 2, allowing the following to now reopen:

9

• Gyms and fitness facilities, including group fitness classes, up to 50%

10

building capacity;

11

• Bars and taverns, up to 50% capacity;

12

• Salons and other businesses that provide aesthetic or skin services,

13

including facials, hair removal, tanning, eyelash services, eyebrow

14

threading, and salt therapy;

15

• Day and overnight spas;

16

• Massage services;

17

• Body art and piercing establishments;

18

• Aquatic facilities and swimming pools, up to 50% capacity;

19

• Water parks, up to 50% capacity;

20

• Museums, art galleries, zoos, and aquariums, up to 50% capacity;

21

• Outdoor venues, like mini golf and amusement parks;

22

• Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to

23

50% capacity; and

24

• Casinos (starting June 4).

25

26

8

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 15 of 28

1

LEGAL STANDARD

2

The same standard applies to requests for preliminary injunctions and

3 requests for temporary restraining orders. Quiroga v. Chen, 735 F. Supp. 2d 1226,

4 1228 (D. Nev. 2010). To obtain a preliminary injunction or restraining order, the

5 plaintiff must establish (1) that it is likely to succeed on the merits, (2) that it is

6 likely to suffer irreparable harm in the absence of preliminary relief, (3) that the

7 balance of equities tips in its favor, and (4) that an injunction is in the public

8 interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord

9 Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012).

10

To satisfy the “likelihood of success” element, the Church does not have to

11 “prove his case in full” or show that it is “more likely than not to prevail.” Koller v.

12 Brown, 224 F. Supp. 3d 871, 875 (N.D. Cal. 2016) (internal citation and quotations

13 omitted). Rather, the Church must show only that it has a “fair chance of success on

14 the merits” or raises questions “serious enough to require litigation.” Id. (internal

15 quotations omitted).

16

ARGUMENT

17 I. The Church is likely to succeed on the merits of its claims.

18

This Court should grant the Church’s motion because it is likely to succeed on

19 the merits of one or more of its claims.

20

A. The Church Gathering Ban violates the Free Exercise Clause.

21

The Free Exercise Clause protects the Church’s right to gather for religious

22 worship and the Church Gathering Ban restricts that right. Strict scrutiny

23 therefore applies because the Ban is neither neutral nor generally applicable and

24 because it involves a system of “individualized government assessments.” Church of

25 the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993).

26

9

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 16 of 28

1

1. The Ban triggers strict scrutiny because it is not generally

applicable. 2
Under the Free Exercise Clause, a law or rule that is not generally applicable

3 is subject to strict scrutiny. Id. at 531. A law is not generally applicable if it “fail[s]

4 to prohibit nonreligious conduct that endangers” the government’s interest “in a

5 similar or greater degree” than the prohibited religious conduct. Id. at 542.

6 Here, the State is not pursuing its purported interest evenhandedly, favoring

7 secular businesses and activities over religious services. Indeed, the Governor has

8 artificially capped church services at 50 people but allowed:

9 • Movie theaters, bowling alleys, and indoor malls to reopen at 50%

10 capacity;

11 • Museums, art galleries, zoos, and aquarium to reopen at 50% capacity;

12 • Restaurants and food establishments to resume onsite, in-person dining at

13 50% capacity;

14 • Bars and taverns to reopen at 50% capacity;

15 • Non-essential retail businesses to reopen at 50% capacity;

16 • Gyms and fitness facilities, including group fitness classes, to reopen at

17 50% capacity;

18 • Aquatic facilities and pools to reopen at 50% capacity;

19 • Massage services to resume;

20 • Nail care salons, hair salons, and barber shops to reopen; and

21 • Casinos to reopen June 4.

22 Directive 018, §§ 13, 15, 16, 17, 22 (FAC, Ex. 12); Press Release, May 26, 2020

23 (FAC, Ex. 13).

24 These exemptions are constitutionally significant. Indeed, the Governor has

25 exempted from his gathering restrictions businesses and activities that prior orders

26

10

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 17 of 28

1 have determined “promote extended periods of public interaction where the risk of

2 [Covid-19] transmission is high.” Directive 003, § 2 (FAC, Ex. 5).

3

What is more, these exemptions from the State’s gathering restrictions are in

4 addition to 28 other categories of previously exempted activities and businesses.

5 Even before the Governor exempted the “non-essential” businesses and activities

6 identified above, the State’s gathering restrictions—including both the earlier 10-

7 person limit and current 50-person limit—did not apply to “the gatherings of

8 persons . . . working at or patronizing Essential Licensed Businesses or providing

9 essential services to the public.” Directive 007, § 1 (FAC, Ex. 7). That means an

10 unlimited number of people can assemble for an unlimited period of time to, among

11 other things, work at or patronize: “essential infrastructure operations,” including

12 “airports”; “businesses that ship or deliver goods directly to residences”; “banks and

13 financial institutions”; “pawnbrokers”; businesses or entities that provide “social

14 services for economically disadvantaged individuals, vulnerable populations, or

15 victims of crime”; “laundromats and dry cleaners”; “warehouses and storage

16 facilities”; “professional or technical services including legal, accounting, tax,

17 payroll, real estate, and property management services; “child care facilities”; and

18 “newspapers, television, radio, and other media services.” NAC 414.XXX(1) (FAC,

19 Ex. 6).

20

Given these exemptions, the Church Gathering Ban cannot reasonably be

21 said to be “generally applicable.” Indeed, the Sixth Circuit recently recognized as

22 much in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), where it held that the

23 Kentucky Governor’s restrictions on in-person worship services likely violated the

24 Free Exercise Clause because there were “serial exemptions for secular activities

25 [that] pose comparable public health risks.”

26

11

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 18 of 28

1

So too here. In fact, even those courts that have upheld restrictions on in-

2 person worship services during the Covid-19 outbreak have explained that the

3 analysis and outcome would be different if the governors there did what the Nevada

4 Governor has done here. See, e.g., Calvary Chapel of Bangor v. Mills, No. 1:20-cv-

5 00156, 2020 WL 2310913, at *8 (D. Me. May 9, 2020) (holding that Governor’s

6 Covid-19 orders were generally applicable because certain entities, including

7 “restaurants” and “movie theaters,” faced “the same restrictions as the [church]”);

8 Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832, 2020 WL 2121111, at *6

9 (E.D. Cal. May 5, 2020) (stating that a “restaurant” or “movie” is “[a] more apt

10 comparison” to an in-person church service, where “a large group of individuals

11 come together at the same time in the same place for the same purpose”).

12

Because the many secular exemptions from the State’s gathering restrictions

13 undermine the government’s purported interest in slowing or preventing the spread

14 of Covid-19, the Governor’s orders are not generally applicable. The Church

15 Gathering Ban therefore triggers strict scrutiny. Lukumi, 508 U.S. at 543–44; see

16 also Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1234–35 (11th Cir.

17 2004) (exempting clubs and lodges, but not houses of worship, “violates the

18 principles of neutrality and general applicability because private clubs and lodges

19 endanger [the town’s] interest in retail synergy as much or more than churches and

20 synagogues”); Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170

21 F.3d 359, 366 (3d Cir. 1999) (Alito, J.) (“[W]hen the government makes a value

22 judgment in favor of secular motivations, but not religious motivations, the

23 government’s actions must survive heightened scrutiny.”)

24

25

26

12

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 19 of 28

1

2. The Ban also triggers strict scrutiny because it is not

neutral. 2

The Church Gathering Ban triggers strict scrutiny for another independent 3

reason: it is not neutral. See Lukumi, 508 U.S. at 531. 4

For one thing, the Church Gathering Ban is not even facially neutral. The 5

Governor specifically calls out religious gatherings, prohibiting places of worship 6

from holding in-person services of more than 50 people and accusing churches of 7

being “hotspots for COVID-19 transmission.” Press Release, May 26, 2020 (FAC, Ex. 8

13). 9

Moreover, “[t]he Free Exercise Clause bars even ‘subtle departures from 10

neutrality’ on matters of religion.” Masterpiece Cakeshop, Ltd. v. Colorado Civil 11

Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting Lukumi, 508 U.S. at 534). 12

The Supreme Court has explained that a law or rule is not neutral if it singles out 13

religious conduct for adverse treatment; visits “gratuitous restrictions on religious 14

conduct”; creates a “religious gerrymander” that in practical effect singles out 15

religious practices for worse treatment; or treats the same conduct as lawful when 16

performed for secular reasons but unlawful when performed for religious reasons. 17

Lukumi, 508 U.S. at 533–35; accord Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) 18

(“Faith-based discrimination can come in many forms,” including in laws or rules 19

that “might appear to be generally applicable on the surface but not be so in 20

practice due to exceptions for comparable secular activities”). The Supreme Court’s 21

free-exercise jurisprudence therefore demands that this Court “survey 22

meticulously,” Lukumi, 508 U.S. at 534, the risks and character of the businesses 23

and activities that the State continues to allow. 24

Here, the Church Gathering Ban places an artificial numerical cap on 25

religious services rather than allow houses of worship to hold services in accordance 26

13

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 20 of 28

1 with social-distancing and safety guidelines, as the State allows for many secular

2 businesses and activities. The Church has voluntarily adopted procedures more

3 than adequate to this end. See FAC ¶¶ 35–36. While the State has imposed a strict

4 numerical limit on the Church’s religious services, there is no such limitation for

5 the secular businesses and activities detailed above.

6

In other words, with the Church Gathering Ban, the State has targeted the

7 Church for unfair treatment while allowing great latitude for preferred secular

8 businesses and activities. This includes even “non-essential” businesses and

9 activities that the State determined “promote extended periods of public interaction

10 where the risk of [Covid-19] transmission is high.” Directive 003, § 2 (FAC, Ex. 5).

11 Remarkably, the State trusts its residents to socially distance and follow general

12 health and safety guidelines while gathering on a daily basis for similar secular

13 activities, but it does not trust them to do so once or twice a week if they are

14 assembling for religious purposes. This is unconstitutional. See Lukumi, 508 U.S. at

15 547 (strict scrutiny applies “even upon slight suspicion” that “state intervention”

16 stems from “distrust of [religious] practices”); accord Berean Baptist Church v.

17 Cooper, No. 4:20-CV-81-D, 2020 WL 2514313, at *9 (E.D.N.C. May 16, 2020)

18 (applying strict scrutiny to Governor’s restrictions on in-person church services

19 because exceptions for other activities “reveals that the Governor appears to trust

20 citizens to perform non-religious activities indoors (such as shopping or working or

21 selling merchandise) but does not trust them to do the same when they worship

22 indoors together”).

23

24

25

26

14

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 21 of 28

1

3. The Ban triggers strict scrutiny because it involves a system

of individual exemptions. 2

The Church Gathering Ban also triggers strict scrutiny because it involves “a 3

system of individual exemptions.” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 4

494 U.S. 872, 884 (1990). 5

In Smith, the Supreme Court held that laws burdening religious exercise 6

must survive strict scrutiny if they are not “neutral” towards religion or “of general 7

applicability.” Id. at 879. Applying that test, the Court held that the Free Exercise 8

Clause did not prohibit the government from denying unemployment benefits to a 9

worker fired for using illegal drugs, even if the drugs were used for religious 10

reasons. Id. at 890. In so doing, the Court was careful to distinguish neutral, 11

generally applicable drug laws from laws allowing a government official to make an 12

“individualized … assessment of the reasons for the relevant conduct.” Id. at 882–84 13

(citing cases). 14

In explaining this distinction, the Court discussed Sherbert v. Verner, 374 15

U.S. 398 (1963), which involved an unemployment compensation law that allowed 16

the government to deny unemployment benefits if the person refused work “without 17

good cause.” Smith, 494 U.S. at 884. The Court explained that strict scrutiny 18

applied in Sherbert because the law’s “good cause” inquiry “created a mechanism for 19

individualized exemptions” depending on a government official’s discretion. Id. at 20

884–85. It then held that, “where the State has in place a system of individual 21

exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ 22

without compelling reason.” Id. at 884. 23

This case falls within the “individualized assessments” exception to Smith. 24

By declaring a state of emergency, the Governor has given himself unbridled 25

discretion to grant individualized exemptions from any of his orders, including 26

15

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 22 of 28

1 gathering restrictions. And the Governor has exercised that discretion. He has

2 excused a wide-array of both “essential” and “non-essential” businesses from the

3 State’s prohibition of gatherings of 50 or more people, while refusing to extend a

4 similar accommodation to the Church’s services.

5

Because the Governor’s exercise of power has resulted in a system of

6 “individual exemptions,” he cannot now “refuse to extend that system to cases of

7 ‘religious hardship’” without surviving strict scrutiny. Smith, 494 U.S. at 884;

8 accord Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456 F.3d 978, 993

9 (9th Cir. 2006) (“When such regulations involving individualized assessments

10 impose substantial burdens on religious exercise, they are subject to strict scrutiny

11 to protect and vindicate the right of free exercise of religion from governmental

12 encroachment.”).

13

B. The Church Gathering Ban violates the Church’s free speech

and assembly rights. 14

Religious speech is protected under the First Amendment. See, e.g., Widmar 15

v. Vincent, 454 U.S. 263, 269 (1981); Lovell v. City of Griffin, 303 U.S. 444 (1938). 16

And the government may not restrict private speech on private property, religious 17

or otherwise, without satisfying strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 18

155 (2015) (town’s sign ordinance restricting speech “on private property or on a 19

public right of way” subject to strict scrutiny). 20

Here, the State has banned the Church from holding worship services on its 21

own property. Because the Church’s services consist entirely of protected expression 22

and speech, such as praise and worship, participation in biblical ordinances and 23

rites, and religious preaching and teaching, the Church Gathering Ban restricts 24

speech and triggers strict scrutiny. 25

26

16

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 23 of 28

1

In addition, the Governor’s orders restrict religious expression but do not

2 impose a similar restriction on secular expressive activities performed at museums,

3 movie theaters, art galleries, and fitness classes. See S. Oregon Barter Fair v.

4 Jackson Cnty., Or., 372 F.3d 1128 (9th Cir. 2004) (“religious ceremonies” are

5 “expressive”). Such a content- and viewpoint-based restriction likewise triggers

6 strict scrutiny. See Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741,

7 746 (9th Cir. 2012) (content-based restriction triggers strict scrutiny).

8

As explained below, the Defendants cannot satisfy that rigorous standard.

9

C. The Church Gathering Ban fails strict scrutiny.

10

Because strict scrutiny applies, Defendants must prove that banning the

11 Church’s in-person services “advance[s] interests of the highest order and [is]

12 narrowly tailored in pursuit of those interests.” Lukumi, 508 U.S. at 546.

13 Defendants cannot satisfy this “highest level of review.” Susan B. Anthony List v.

14 Driehaus, 814 F.3d 466, 473 (6th Cir. 2016).

15

While enacting safety measures to curb the spread of Covid-19 may generally

16 be considered a compelling interest, this Court must still “scrutinize the asserted

17 harm of granting specific exemptions to particular religious claimants.” Burwell v.

18 Hobby Lobby Stores, Inc., 573 U.S. 682, 726–27 (2014). Even “plausible hypotheses

19 are not enough to satisfy strict scrutiny,” Contractors Ass’n of E. Pa. v. City of

20 Phila., 6 F.3d 990, 1008 (3d Cir. 1993), and “ambiguous proof will not suffice,”

21 Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 800 (2011). Thus, “broadly

22 formulated” statewide interests and generalized descriptions of health risks, like

23 those referenced by the Governor here, are not compelling. See Gonzales v. O Centro

24 Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). And “a law cannot

25 be regarded as protecting an interest ‘of the highest order’ when it leaves

26

17

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 24 of 28

1 appreciable damage to that supposedly vital interest unprohibited,” Lukumi, 508

2 U.S. at 547 (internal markings omitted), as the many secular exemptions do here.

3

What is more, Defendants must establish that the Church Gathering Ban is

4 the “least restrictive means” of furthering any compelling interest that they might

5 have—a burden that they cannot possibly carry for three independent reasons.

6

First, Defendants cannot show that it is necessary to subject the entire state

7 to its restrictions. Indeed, CDC guidance for faith-based organizations recommends

8 a graduated approach based on community risk.1 And such approach must be

9 equally applied to secular gatherings. But the wisdom (and practicality) of such an

10 individually tailored, less-restrictive means is completely missing from the

11 Governor’s blanket, statewide approach.

12

Second, and as detailed above, the Governor has exempted numerous secular

13 activities and facilities from the gathering restriction currently placed on houses of

14 worship. Although the Church Gathering Ban identifies places of worship for

15 increased regulation, indoor gatherings that invite similar or greater interpersonal

16 interaction—such as gatherings at casinos, movie theaters, museums, restaurants,

17 bars and taverns, gyms, fitness centers, retail establishments, professional office

18 environments, nail salons, barbers, hair salons, and amusement parks (to name just

19 a few)—are left unregulated, except by the less-restrictive means of general social

20 distancing and hygiene guidelines. See Lukumi, 508 U.S. at 536–38 (concluding that

21 when the same conduct “in almost all other circumstances [goes] unpunished,”

22 religious conduct has been unconstitutionally “singled out for discriminatory

23 treatment”); accord First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL

24

25 1 See, e.g., Center For Disease Control & Prevention,
26 https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-
gatherings-ready-for-covid-19.html (last visited May 27, 2020).

18

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 25 of 28

1 1910021 (D. Kan. Apr. 18, 2020) (“Plaintiffs can likely show that the broad

2 prohibition against in-person religious services of more than ten congregants is not

3 narrowly tailored to achieve the stated public health goals where the comparable

4 secular gatherings are subjected to much less restrictive conditions.”).

5

Finally, the Governor has offered no justification for why compliance with

6 social-distancing and hygiene requirements on the part of churches would not

7 satisfy the government’s public health interest. Indeed, the continued reliance on

8 social-distancing and hygiene restrictions for similar secular activities proves that

9 the additional restrictions and burdens placed on religious services are not the

10 least-restrictive way to satisfy the State’s purported interest. The State simply

11 cannot justify allowing movie theaters, restaurants, bars, gyms, fitness centers,

12 water parks, retail establishments, and other secular businesses to operate at 50%

13 or greater capacity (for upwards of eight hours per day, seven days a week) while

14 criminalizing every in-person church service (no matter how short or infrequent)

15 just because it involves more than 50 people. See Roberts, 958 F.3d 409 (6th Cir.

16 2020) (“How can the same person be trusted to comply with social-distancing and

17 other health guidelines in secular settings but not be trusted to do the same in

18 religious settings? The distinction defies explanation.”).

19 II. Covid-19 does not justify banning the Church’s services while allowing larger secular gatherings.
20 Defendants may argue that Covid-19 poses a unique circumstance that
21 removes the Church Gathering Ban from a traditional constitutional analysis. But
22 the government’s exercise of emergency powers “is not conclusive or free from
23 judicial review.” United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971). And
24 the “individual rights secured by the Constitution do not disappear during a public
25 health crisis.” In re Abbott, 2020 WL 1685929, at *6 (5th Cir. Apr. 7, 2020). These
26

19

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 26 of 28

1 individual rights are always in force and restrain government action. Thus, “[a]

2 local enactment or regulation, even if based on the acknowledged police powers of a

3 state, must always yield in case of conflict . . . with any right which [the U.S.

4 Constitution] gives or secures.” Jacobson v. Commonwealth of Mass., 197 U.S. 11,

5 25 (1905).

6

Indeed, the Supreme Court has instructed courts to intervene in situations

7 precisely like this one—where the law at issue “has no real or substantial relation

8 to [public health], or is, beyond all question, a plain, palpable invasion of rights

9 secured by the fundamental law.” Jacobson, 197 U.S. at 31.

10

Here, the Church Gathering Ban cites no authority that merely being present

11 in a church building with more than 50 people poses a unique and unacceptable

12 threat to public health and safety. And the Governor has pointed to no scientific,

13 public health, or other authority that explains why religious services or activities

14 pose a special health risk in a way that other exempt secular activities and facilities

15 do not. The Church Gathering Ban does not allow the Church to hold its services

16 while following social distancing and health and safety protocols. Without

17 explanation, however, the Governor has allowed many similarly situated businesses

18 to open to unlimited numbers people so long as social distancing protocol is

19 followed.

20

Such disparate treatment cannot survive under Jacobson. In fact, the Sixth

21 Circuit recently cited Jacobson in temporarily enjoining similar restrictions on in-

22 person church services, explaining that “restrictions inexplicably applied to one

23 group and exempted from another do little further” the government’s goal of slowing

24 the spread of the virus. Roberts, 958 F.3d 409 (6th Cir. 2020). After all, if the same

25 precautions are taken, “why can someone safely [sit in a restaurant or movie

26 theater] but not a pew? And why can someone safely interact with a brave

20

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 27 of 28

1 [waitress, barber, or nail technician] but not with a stoic minister?” Id. Like the

2 government in Roberts, the Defendants here “have no good answers.” Id.

3 III. The Church has already suffered and will continue to suffer

irreparable harm without an injunction. 4

The Supreme Court recognizes that “the deprivation of First Amendment 5

freedoms, for even minimal periods of time, unquestionably constitutes irreparable 6

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). As detailed above, the Church 7

Gathering Ban violates the Church’s constitutional rights and will continue to 8

violate its rights without immediate relief. 9

IV. The balance of equities sharply favors the Church. 10

11

The equities favor the Church because the law places a premium on

12 protecting constitutional rights. The Church Gathering Ban irreparably harms the

13 Church’s constitutional rights and significantly hinders its ministry to its

14 parishioners and community. Meanwhile, an injunction need not harm Defendants

15 at all. Local health officials can subject infected persons to orders of isolation and

16 quarantine. And the State remains free to adopt permissible and reasonable

17 regulations for in-person worship services, including narrowly tailored social

18 distancing and health and safety measures, in a similar fashion as it has done with

19 secular activities. But a flat ban on services involving more than 50 people—

20 regardless of the protective measures in place—serves no governmental interest and

21 is not narrowly tailored.

22

V. An injunction would serve the public interest.

23

“[I]t is always in the public interest to prevent the violation of a party’s

24 constitutional rights.” Melendres, 695 F.3d at 1002. This is particularly true for

25 First Amendment freedoms. Because the requested injunction will accomplish this,

26 the public interest also favors an order protecting the Church.

21

Case 3:20-cv-00303-RFB-VCF Document 19 Filed 05/29/20 Page 28 of 28

1

CONCLUSION

2

For these reasons, Plaintiff Calvary Chapel Dayton Valley respectfully

3 requests that this Court grant this motion and allow the Church to resume in-

4 person worship services, in compliance with appropriate social distancing and

5 health guidelines, by this Sunday, May 31.

6

7 Respectfully submitted this 28th day of May 2020.
8

9

s/ Jason D. Guinasso

Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

10 Ryan J. Tucker (AZ Bar 034382)*

500 Damonte Ranch Pkwy, Suite 980

11 Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

Reno, NV 89521 Telephone: (775) 853-8746

12 15100 N. 90th Street

jguinasso@hutchlegal.com

Scottsdale, AZ 85260 13 Telephone: (480) 444-0020

14 kwaggoner@adflegal.org rtucker@adflegal.org

15 jgalus@adflegal.org

16 David A. Cortman (GA Bar 188810)* 17 ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE 18 Ste. D-1100
Lawrenceville, GA 30043 19 Telephone: (770) 339-0774 20 dcortman@ADFlegal.org

21 *Pro hac vice application pending

22

23

24

25

26

22

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 1 of 9

1

DECLARATION OF "GARRY D. LEIST"

2

I, Garry D. Leist, hereby declare and state as follows:

3 1. I am and have been at all time relevant hereto the Senior Pastor of Calvary Chapel

4

Dayton Valley (CCDV).

5 2. CCDV has operated as a Christian church in Dayton, Nevada, since February 5,

6

2006.

7 3. Our church is comprised of approximately 400 people who primarily live and work

8

in and around the Dayton area of Lyon County, Nevada.

9
4. We believe that the Bible is the inspired Word of God and infallible rule of faith

10
and practice. Therefore, the Bible is the foundation upon which CCDV operates

11
and is the basis on which it is governed.
12
5. Among other sacred aspects of our faith, we believe that the Bible commands
13
Christians to gather in-person for corporate prayer, worship, and fellowship and
14
that this sacred assembly is vital to our Christian identity and essential to our
15
spiritual growth in Christ. See Hebrews 10:24-25 (ESV) ("And let us consider how
16

to stir up one another to love and good works, not neglecting to meet together, as is
17

the habit of some, but encouraging one another, and all the more as you see the
18

Day drawing near").
19

20 6. Consistent with this belief, CCDV's mission and purpose is: (1) to continue

21

steadfastly in the apostles' doctrine and fellowship, in the breaking of bread, and in

22

prayers; (2) to worship God the Father, Son, and Holy Spirit; (3) to build up the

23

Church of Jesus Christ through the teaching of the Word of God and the ministry

24

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 2 of 9

1

of the Holy Spirit; and (4) to persuade men and women to repent and confess Jesus

2

Christ as Lord.

3 7. Although the building where we gather does not necessarily define who we are as

4

people of faith in Christ, the gathering of the "ekklesia" (which is the New

5

Testament Term for "Assembly" or "Called out") in one building in Dayton,

6

Nevada, is central to our expression of our faith in Jesus Christ.

7 8. The virtual and "drive-in" gatherings we have been forced to settle for during this

8
time of crisis are not an acceptable substitute for the communal gathering of our
9
Church. In addition, some of our church members do not have internet access or
10
the ability to participate in online services.
11
9. For CCDV, the gathering of the ekklesia is more than just a motivational speech
12
from a gifted orator, a deep teaching from a skilled teacher, or the warm feeling we
13
get when we sing worship songs together.
14
10. For the Christians who attend our church regularly, our assembly in our building
15
from week to week is the embodiment of Christ on earth. We believe that this is
16
how we best express His image and likeness together on earth. This sacred
17
assembly cannot be substituted via virtual meetings.
18

19 11. It our conviction and belief that we are not called to be isolated individuals

20

expressing Christ in the privacy of our homes, but a collective city on the hill

21

where Christ is expressed together to one another.

22 12. There are over 100 New Testament scriptures addressing our commitments to one

23

another in the context of our weekly assembly, so while we are eager to do what is

24

safe and to care for one another and our community, we cannot settle for the notion

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 3 of 9

1

that what we are doing "virtually" or in our cars is an acceptable substitute for the

2

gathering of the ekklesia. Rather, the alternative meetings have been a deep

3

insult to our community, especially as we have watched the Governor allow

4

numerous secular businesses and activities resume without similar restrictions.

5 13. In summary, it is our sincerely-held religious belief that online services and drive-

6

in services do not meet the Lord's requirement that we meet together weekly in

7

person for corporate worship.

8 14. In addition to the central role of community gatherings for our church, we have

9
been and continue to be valuable contributors to the good of our community.
10 15. Our commitment to our solemn duty of love and service at all times, but especially
11 during the time of a public health crisis, means that we care for one another, our
12 congregation of believers, and the communities where we live, work, and serve.
13 16. The service of our church takes many forms, including responsibly hosting regular
14
services and providing ceremonies and sacraments for spiritual care and comfort, 15
providing assistance to the poor, to immigrants (documented and undocumented), 16

and to families in need, cal'ing for the elderly, ministering to the mental, 17

emotional, and spiritual needs of first responders and health care providers, 18

19

providing guidance to unemployed people as they manage the anxieties and

20

stresses of being jobless, helping raise money for PPE, medical equipment, and

21

supplies that health care professionals need, partnering with government leaders

22

to develop strategies for preventing the spread of disease and death. The foregoing

23

services that we provide are essential to the people and communities we serve and

24

have been substantially hindered by the Governor's directives.

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 4 of 9

1 17. In response to federal, state, and local guidance at the beginning of the Covid-19

2

outbreak-but before any local or state order prohibited in-person gatherings-we

3

voluntarily adopted rigorous social distancing and health safety measures for our

4

services.

5 18. In fact, immediately after the Governor declared a state of emergency on March 12,

6

2020, we took proactive steps for our March 15 services. We disinfected frequently

7

touched surfaces such as door handles, chairs, and tables before and after services;

8
made hand sanitizer available in multiple locations throughout the building's
9
common areas; advised church attendees to refrain from personal contact such as
10 handshakes and hugs; instructed those who felt sick or lived with someone who felt
11
sick to stay home; and encouraged online giving through the Church's website,
12
among other things.
13
19.And the next day, on March 16, 2020, out of concern for the health and safety of
14
our congregation and community, we temporarily suspended in-person worship
15
services and began streaming our services online.
16
20. More than two months later, the Governor's orders have prevented us from
17
resuming in-person worship services.
18

19 21.Although our initial decision to temporarily suspend in-person services was

20

voluntary, and made in an abundance of caution given the health and safety

21

concerns at the time, we believe we are now being called by our God to resume in-

22

person worship services, consistent with our religious beliefs about corporate

23

prayer, worship, and fellowship.

24

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 5 of 9

1 22. The people under my Pastoral care and I have patiently waited for Governor

2

Sisolak to restore our First Amendment freedoms. We had trusted that the

3

Governor would prioritize our constitutional rights, have respect for our sacred

4

assembly, and allow us to resume in-person worship services at the earliest

5

opportunity.

6 23. But that trust has been shattered each time the Governor has issued an order for

7

the past two months. Instead of prioritizing our guaranteed right to freely gather

8 in our sacred assembly, the Governor has prioritized "non-essential" secular

9
businesses and activities.
10 24. Even before his Phase 2 announcement, the Governor allowed restaurants and food
11
establishments to resume in-person, on-site dining at 50% capacity, allowed all 12
retail establishments to open at 50% capacity, and threw open the doors of nail 13
care salons, hair salons, and barber shops-businesses that the Governor's own 14
orders say "promote extended periods of public interaction where the risk of 15
[Covid-19] transmission is high." 16

25. Now, the Governor has added insult to the continued injury to our religious 17

18

expression by announcing that the following "non-essential" businesses can reopen

19

in Phase 2:

20

a. Gyms and fitness facilities, including group fitness classes, up to 50%

21

building capacity;

22

b. Bars and taverns, up to 50% capacity;

23

24

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 6 of 9

1

c. Salons and other businesses that provide aesthetic or skin services,

2

including facials, hair removal, tanning, eyelash services, eyebrow

3

threading, and salt therapy;

4

d. Day and overnight spas;

5

e. Massage services;

6

f. Body art and piercing establishments;

7

g. Aquatic facilities and swimming pools, up to 50% capacity;

8
h. Water parks, up to 50% capacity;
9
1. Museums, art galleries, zoos and aquariums, up to 50% capacity;
10
J. Outdoor venues, like mini golf and amusement parks;
11
k. Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to
12
50% capacity; and
13
1. Casinos (starting June 4). 14
26.However, the Governor's Phase 2 plan prohibits us from opening our doors to more
15
than 50 people under any circumstance.
16
27. This would mean we would have to have between 10 and 13 services to ensure our
17

18

church members could participate in our sacred Sunday assembly and time of

19

worship. This is neither feasible nor fair.

20 28. We are perplexed by the Governor's orders because large numbers of people can

21

gather for a similar or greater amount of time as our church service at restaurants,

22

non-essential retail establishments, nail salons, hair salons, barber shops, gyms,

23

fitness facilities, pools, water parks, museums, aquariums, amusement parks,

24

indoor malls, bowling alleys, movie theaters, and casinos, but it is illegal for the

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 7 of 9

1

Church-which is located in rural Lyon County-to hold in-person services with

2

more than 50 people.

3 29. Consistent with sincerely held religious convictions concerning our weekly sacred

4

assembly, we plan to resume in-person worship services on Sunday, May 31, 2020,

5

which the Holy Day of Pentecost Sunday. In this regard, we have developed

6

comprehensive social distancing and health and safety protocols to govern those

7

services.

8
30.Before Covid-19, the Church's two Sunday services could hold up to 200 people
9
each.

31. The Church seeks to hold in-person services at 50% of its sanctuary's capacity

11

while also providing for proper social distancing of at least six feet separation

12

between families and individuals, which would amount to approximately 90 people

13

1. n a servic. e.

14

32. In preparation for resuming in-person worship services, we have adopted-and will 15

follow-strict social distancing and health and safety protocols. These protocols
16

include the following precautions: 17

18

a. Holding only Sunday and Wednesday services;

19

b. Strictly limiting Sunday services to 45 minutes (as opposed to the usual 90

20

minutes);

21

c. Holding up to three services each Sunday to guarantee adequate space for

22

social distancing at each service;

23

d. Providing ½ hour between services to allow for thorough cleaning and

24

sanitizing of sanctuary, hallways, bathrooms, and common surfaces;

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 8 of 9

1

e. Posting signs on walls and floors to direct traffic;

2

f. Posting signs on restroom doors limiting use to one person at a time;

3

g. Posting signs in the restrooms encouraging proper washing of hands;

4

h. Making hand sanitizer stations easily accessible to attendees;

5

1. Encouraging attendees to arrive no earlier than 25 minutes before service;

6

J. Using parking attendants to direct cars to designated parking areas;

7

k. Directing all attendees to a designated entrance;

8
1. Directing attendees to sanctuary seating designed to provide 6-feet of
9
separation between families and individuals;
10
m. Ensuring that all traffic for each service will be in one direction by using 11
"first in, last out" model; 12
n. Advising attendees of proper social distancing protocols; 13
o. Encouraging attendees to bring and wear face coverings; 14
p. Requiring all servants greeting or directing attendees to wear face
15
covermgs;
16
q. Prohibiting any handouts or items to be passed to attendees during services; 17
r. Prohibiting snacks or coffee from being served;
18.

19

s. Using prepacked Communion elements whenever served;

20

t. Directing attendees out of the building to the parking area at the end of each

21

service;

22

u. Instructing attendees to refrain from congregating in the building.

23 33. Despite these health and safety measures, however, the Governor's orders threaten

24

me and the members of the church with criminal and civil penalties.

25

Case 3:20-cv-00303-RFB-VCF Document 19-1 Filed 05/29/20 Page 9 of 9

1

I declare under penalty of perjury pursuant to 28 U.S.C. 1746 that the foregoing is

2

true and correct to the best of my knowledge.

3

Executed this ~ g day of May 2020, in Dayton, Nevada.

4

5

Senior Pastor

6

Calvary Chapel Dayton Valley

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:20-cv-00303-RFB-VCF Document 19-2 Filed 05/29/20 Page 1 of 4

Case 3:20-cv-00303-RFB-VCF Document 19-2 Filed 05/29/20 Page 2 of 4

Case 3:20-cv-00303-RFB-VCF Document 19-2 Filed 05/29/20 Page 3 of 4

Case 3:20-cv-00303-RFB-VCF Document 19-2 Filed 05/29/20 Page 4 of 4

Case 3:20-cv-00303-RFB-VCF Document 19-3 Filed 05/29/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

CALVARY CHAPEL DAYTON VALLEY,
Plaintiff,
v.
STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official capacity as Sheriff of Lyon County,
Defendants.

Case No.: 3:20-cv-00303-LRH-CLB
[PROPOSED] ORDER

Upon consideration of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, the Memorandum and Exhibits in support thereof, any opposition, any reply thereto, and any oral argument, it is hereby:

ORDERED that Plaintiffs’ motion is GRANTED because (1) Plaintiff is likely to succeed on the merits of its claims alleging violations of the First Amendment; (2) in the absence of preliminary relief, Plaintiff is likely to suffer irreparable harm in the form of denial of its constitutional rights; (3) the balance of equities tips in Plaintiff’s favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth the elements required for preliminary injunctive relief).;

IT IS FURTHER ORDERED that a Temporary Restraining Order is hereby entered against Defendants.

Case 3:20-cv-00303-RFB-VCF Document 19-3 Filed 05/29/20 Page 2 of 2

IT IS FURTHER ORDERED that pursuant to the Order, Defendants are enjoined and ordered to refrain from enforcing those portions of the Governor’s orders that limit in-person church services to 50 or fewer persons, thereby allowing Plaintiff and its congregants to resume corporate prayer and worship while following the social distancing and public health protocols Plaintiff has indicated in its complaint that it is prepared to apply.

SO ORDERED.

DATED: MAY ___, 2020

United States District Judge

 
 Case 3:20-cv-00303-RFB-VCF Document 20 Filed 05/29/20 Page 1 of 6

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4
Kristen K. Waggoner (AZ Bar 032382)* 5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street
Scottsdale, AZ 85260 8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*

ALLIANCE DEFENDING FREEDOM 12 1000 Hurricane Shoals Rd. NE

13 Ste. D-1100 Lawrenceville, GA 30043
14 Telephone: (770) 339-0774

dcortman@ADFlegal.org 15
*Pro hac vice application submitted, pending decision 16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19 Plaintiff,
20
21 v.
22 STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his
23 official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official
24 capacity as Sheriff of Lyon County,

Case No.: 3:20-cv-00303-LRH-CLB
REQUEST FOR RECONSIDERATION OF
ORDER DENYING EMERGENCY TEMPORARY
RESTRAINING ORDER

25

Defendants.

26

Case 3:20-cv-00303-RFB-VCF Document 20 Filed 05/29/20 Page 2 of 6

1

Pursuant to FRCP 59(e), Plaintiff Calvary Chapel Dayton Valley (“the

2 Church”), hereby moves for reconsideration of this Court’s order denying temporary

3 emergency relief that would permit the Church to resume in-person worship services

4 Sunday, May 31, 2020 to celebrate Pentecost Sunday pending a decision on a

5 preliminary injunction after briefing and argument now scheduled for next week.

6 Without a temporary order being issued, the Church will be unable to celebrate this

7 holy day without facilitating 10 to 13 services of 50 people or less. This is not feasible

8 and, without the temporary emergency relief requested, will prevent the Church from

9 having in-person services.

10

The Church understands that granting emergency motions should be rare. LR

11 7-4(b). But the Church did not create the emergency in question and did, in fact, act

12 diligently under the circumstances. Given that the Court may have been unaware of

13 all the facts causing the Church to file its emergency motion the afternoon of

14 Thursday May 28, 2020, the Church respectfully submits the following timeline to

15 clarify the record in support its request for emergency relief:

16

1) On May 14, 2020, the Church’s Pastor, along with nearly 200 other Pastors

17 from churches across the state sent a letter to the Governor as one united voice of

18 diverse churches and ministry leaders from multiple denominations and expressions

19 of the Christian faith throughout the State of Nevada, “request[ing] that [he]

20 immediately lift the ban on in-person worship services where ten or more persons

21 may gather so long as each church develops, implements, and maintains a safety plan

22 that adheres to applicable social distancing and hygiene guidelines.” See Exhibit 1

23 (May 14, 2020 Letter). The Church had hoped that this letter would result in a lifting

24 of the ban on in-person services that would allow them to celebrate Pentecost Sunday.

25 However, the Governor did not respond to this letter or give any indication when he

26

1

Case 3:20-cv-00303-RFB-VCF Document 20 Filed 05/29/20 Page 3 of 6

1 was going to lift the ban on in-person church services where ten or more people may

2 gather.

3

2) On May 21, 2020, in an effort to avoid taking legal action, the Pastor of the

4 Church, along with 200 other Pastors and Ministry leaders from across the State of

5 Nevada, sent a second letter to the Governor emphasizing to him and his LEAP

6 committee the fact that Churches can re-open the safely. See Exhibit 2 (May 21,

7 2020 Letter). Unfortunately, the Governor and the LEAP Committee did not respond

8 to this letter.

9

3) On May 22, 2020, at 2:31 p.m., the Church filed a Verified Complaint for

10 Declaratory and Injunctive Relief with the Court requesting relief from the

11 unconstitutional actions of the Governor.

12

4) Approximately one hour after filing the Complaint, the Governor’s office

13 issued a press release stating the following, “Today, ahead of the holiday weekend,

14 Nevada Gov. Steve Sisolak announced he will hold a press conference on Tuesday,

15 May 26, to discuss the next phase in Nevada’s reopening plan, as outlined in Nevada

16 United: Roadmap to Recovery.” See Exhibit 3 (May 22, 2020, Press Release). The

17 announcement was scheduled for 5:30 p.m. on May 26, 2020. When this

18 announcement was made, it caused the Church to pause and reconsider filing a

19 motion for a temporary restraining order and preliminary injunction because it

20 appeared the Governor was finally going to move into Phase 2 of his plan to reopen

21 Nevada. It was the hope of the Church that the Governor’s actions would address the

22 concerns and proposals submitted in the two letters that had been sent to him and

23 that churches would be allowed to re-open.

24

5) On May 26, 2020, the Governor cancelled his press conference that was

25 scheduled for 5:30 p.m. Ultimately, late on the evening of May 26, 2020, the

26 Governor released his prepared remarks regarding “Phase 2 Reopening.” Despite

2

Case 3:20-cv-00303-RFB-VCF Document 20 Filed 05/29/20 Page 4 of 6

1 allowing restaurants, movie theaters, bowling allies, indoor malls, museums, gyms,

2 etc., to open with a 50% capacity restriction, Governor Sisolak continued to

3 discriminate against places of worship and treat them differently than other entities

4 by only allowing reopening of their services up to a maximum of 50 people attending

5 an in-person service at a time with strict social distancing measures in place. See

6 Exhibit 4 (May 26, 2020, Press Release).

7

6) In response to the Governor’s statement, on Wednesday May 27, 2020, the

8 Church prepared an amended complaint and the request for emergency temporary

9 restraining order and preliminary injunction. However, the Church could not file

10 these documents with the Court until the meet and confer requirements of LR 7-4

11 were satisfied. Meanwhile, the Church was also waiting for the signed directive from

12 Governor’s office to be made public.

13

7) On May 28, 2020, the LR 7-4 meet and conference requirements were

14 satisfied. However, by 2:00 p.m. on that same day the Governor’s signed directive

15 still had not been made public. See Exhibit 5 (May 28, 2020 Phase II Directive). So,

16 the Church decided it could not wait any longer to file the amended verified complaint

17 and motion for an emergency temporary restraining order and preliminary

18 injunction. These filings were completed at 3:26 p.m. and 3:36 p.m. respectively.

19 These filings were followed by phone calls to the Court to provide notice of the

20 emergency filings. Concurrently, courtesy copies of the filings were provided to both

21 legal counsel for the State of Nevada and Lyon County Sherriff. Additionally, their

22 cell phone numbers were secured in order to facilitate a call with the Court if a call

23 was deemed necessary.

24

In short, the Church filed its motion challenging the Governor’s “Phase 2”

25 directive at the earliest opportunity—indeed, the motion was filed before the

26 Governor even issued his signed directive late yesterday afternoon.

3

Case 3:20-cv-00303-RFB-VCF Document 20 Filed 05/29/20 Page 5 of 6

1

In accordance with the foregoing, the Church respectfully submits that the

2 timing of its filing was reasonable and appropriate under the circumstances. The

3 Church did not create the emergency. The Governor did by his unconstitutional and

4 desperate treatment of the Church despite being given reasonable time and

5 opportunity to avoid creating this crisis for the Church with respect to the Pentecost

6 Sunday services.

7

CONCLUSION

8

9

With the foregoing clarification regarding the timeline of events that led to the

10 Churches emergency filing, the Church hereby requests the Court provide temporary

11 relief from the Governor’s directive thereby allowing the Church and its congregants

12 to resume corporate prayer and worship while following the social distancing and

13 public health protocols Plaintiff has indicated in its complaint that it is prepared to

14 apply pending the completion of briefing and oral argument schedule for next week.

15 / / /

16 / / /

17 / / /

18 / / /

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

4

Case 3:20-cv-00303-RFB-VCF Document 20 Filed 05/29/20 Page 6 of 6

1 Respectfully submitted this 29th day of May 2020.

2 s/ Jason D. Guinasso
3 Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

4

Ryan J. Tucker (AZ Bar 034382)* Jeremiah Galus (AZ Bar 030469)*

500 Damonte Ranch Pkwy, Suite 980 Reno, NV 89521

5 ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street 6 Scottsdale, AZ 85260

Telephone: (775) 853-8746 jguinasso@hutchlegal.com

7

Telephone: (480) 444-0020 kwaggoner@adflegal.org

8 rtucker@adflegal.org
jgalus@adflegal.org 9

10

David A. Cortman (GA Bar 188810)* ALLIANCE DEFENDING FREEDOM

11 1000 Hurricane Shoals Rd. NE

Ste. D-1100 12 Lawrenceville, GA 30043

13

Telephone: (770) 339-0774 dcortman@ADFlegal.org

14
**Pro hac vice application submitted, 15
pending decision 16

17

18

19

20

21

22

23

24

25

26

5

 
 Case 3:20-cv-00303-RFB-VCF Document 22 Filed 05/29/20 Page 1 of 2

1 AARON D. FORD

Attorney General 2 CRAIG A. NEWBY (Bar No. 8591)

3

Deputy Solicitor General State of Nevada

4

Office of the Attorney General 100 North Carson Street

5

Carson City, Nevada 89701-4717 (775) 684-1100 (phone)

6 (775) 684-1108 (fax) Email: CNewby@ag.nv.gov

7 Attorneys for Steven Sisolak, Governor,
8 Aaron Ford, Attorney General

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11 CALVARY CHAPEL DAYTON VALLEY

Case No. 3:20-cv-00303-LRH-CLB

12

13

vs.

Plaintiff,

OPPOSITION TO REQUEST FOR RECONSIDERATION

14 STEVE SISOLAK, in his official capacity as Governor of Nevada, et al.,
15 Defendants,
16

17

Defendants Steve Sisolak and Aaron D. Ford (hereinafter “Defendants”) hereby file

18 this opposition to Calvary Chapel Dayton Valley’s request for reconsideration. ECF No.

19 20. The Court has already considered what Calvary Chapel Dayton Valley has asserted

20 warrants immediate relief by Sunday. See ECF No. 16. Calvary Chapel Dayton Valley,

21 as the party initiating this case, is responsible for whether or how it proceeds. For these

22 reasons, Defendants oppose the request

23

Dated: May 29, 2020.

24

AARON D. FORD

25

Attorney General

26

By: /s/ Craig A. Newby Craig A. Newby (Bar No. 8591)

27

Deputy Solicitor General

28 1

Case 3:20-cv-00303-RFB-VCF Document 22 Filed 05/29/20 Page 2 of 2

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of the State of Nevada, Office of the Attorney

3 General, and that on this 29th day of May, 2020, I electronically filed the foregoing

4 document, OPPOSITION TO REQUEST FOR RECONSIDERATION, with the Clerk

5 of the Court by using the CM/ECF system.

6

Participants in the case who are registered CM/ECF users will be served by the

7 CM/ECF system.

8

9

/s/ Sandra L. Geyer

Sandra L. Geyer

10

State of Nevada,

Office of the Attorney General

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 Case 3:20-cv-00303-RFB-VCF Document 23 Filed 05/30/20 Page 1 of 2

1

2

3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

* * *

6 CALVARY CHAPEL DAYTON VALLEY,

Case No. 3:20-cv-00303-MMD-CLB

7

Plaintiff,

v.

8

STEVE SISOLAK, in his official capacity

9 as Governor of Nevada, et al.,

ORDER

10

Defendants.

11

12

The Court previously denied Plaintiff’s request to consider its Emergency Motion

13 for Temporary Restraining Order and Preliminary Injunction (“Motion”) (ECF Nos. 9, 19)1

14 on an emergency basis. (ECF No. 16 (“Order”).) As noted in the Order, it is simply

15 unreasonable for Plaintiff to file the Motion around 3:30 p.m. on Thursday, May 28, 2020,

16 asking the Court to enjoin enforcement of state emergency directives imposed in

17 response to COVID-19 to allow Plaintiff to resume in-person worship services by Sunday,

18 May 31, 2020. (Id. at 1-2.) Plaintiff seeks reconsideration of the Order, explaining that it

19 had hoped Nevada’s Governor would address concerns that Plaintiff’s Pastor, along with

20 a group of other religious leaders across the state, had raised with Governor Sisolak.2

21 (ECF Nos. 20 at 3-4, 21 at 3-4.) In short, Plaintiff contends that it exercised diligence in

22 trying to resolve its dispute before bringing the Motion, though Plaintiff did not offer any

23 explanation for its delay in the Motion.

24

The Court declines to consider Plaintiff’s explanation. It is not an abuse of

25 discretion to refuse to consider new arguments in a reconsideration motion even though

26

27

1Plaintiff filed the Motion as one document and later corrected its filing to reflect

that the Motion encompasses two requests for relief—a temporary restraining order and

28 a preliminary injunction.

2The Governor opposes the motion for reconsideration. (ECF No. 22.)

Case 3:20-cv-00303-RFB-VCF Document 23 Filed 05/30/20 Page 2 of 2

1 “dire consequences” might result. See Schanen v. United States Dept. of Justice, 762

2 F.2d 805, 807-08 (9th Cir. 1985).

3

Moreover, the Court’s Order anticipated and already rejected the reason for waiting

4 to file its Motion that Plaintiff’s motion for reconsideration now proffers. The Order

5 specifically noted:

6

To the extent Plaintiff was not certain how or when this restriction would be

mitigated under the Governor’s phased reopening plan, Plaintiff still filed

7

this action on May 22, 2020, and should have—at a minimum—sought the

relief sought in the Motion then. Waiting until one business day before

8

Pentecost Sunday to ask for emergency relief is simply unreasonable.

9 (ECF No. 16 at 2.) Plaintiff’s basis for seeking reconsideration is, in gist, that very

10 reason—the uncertainty associated with the Governor’s phased approach caused

11 Plaintiff to delay filing the Motion even though Plaintiff filed this action on May 22, 2020.

12 (ECF Nos. 20, 21.) Be that as it may, the fact that Plaintiff waited until one business day

13 before Pentecost Sunday to file the Motion, when Plaintiff challenges restrictions that

14 have been in place for weeks, still put Defendants and the Court in the untenable position

15 of having essentially no time to address the Motion on the merits.

16

It is therefore ordered that the motion for reconsideration (ECF Nos. 20, 21) is

17 denied.

18

DATED THIS 29th day of May 2020.

19

20

MIRANDA M. DU

21

CHIEF UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

2

 
 Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 1 of 27

1 AARON D. FORD Attorney General

2 CRAIG A. NEWBY (Bar No. 8591)

Deputy Solicitor General 3 State of Nevada

Office of the Attorney General 4 100 North Carson Street

5

Carson City, Nevada 89701-4717 (775) 684-1100 (phone)

6

(775) 684-1108 (fax) Email: CNewby@ag.nv.gov

7 Attorneys for Steven Sisolak, Governor,
8 and Aaron Ford, Attorney General

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11 CALVARY CHAPEL DAYTON VALLEY Case No. 3:20-cv-00303-LRH-CLB

12

Plaintiff,

13 vs.

14 STEVE SISOLAK, in his official capacity as Governor of Nevada, et al.,
15 Defendants.
16

17

OPPOSITION TO PLAINTIFFS’ EMERGENCY

MOTION FOR PRELIMINARY INJUCTION

18

19

20

21

22

23

24

25

26

27

28

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 2 of 27

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES ................................................................................................... ii

4 I. INTRODUCTION .........................................................................................................2

5 II. BACKGROUND ............................................................................................................2

6

A. The Global Pandemic .........................................................................................2

7

B. Nevada’s Response to the Global Pandemic......................................................4

8

C. Directive 21 and Calvary’s Allegations .............................................................5

9

1. Mass Gatherings Generally ....................................................................5

10

2. Numerous Other Venues Are Limited to No More than 50 People.......6

11

3. Communities of Worship and Faith-Based Organizations ....................6

12 III. LEGAL STANDARD FOR INJUNCTIVE RELIEF ....................................................7

13 IV. LEGAL ARGUMENT....................................................................................................8

14

A. Calvary is Unlikely to Succeed on the Merits of its Claims .............................8

15

1. The Exercise of Emergency Police Powers During a Public Health

Crisis Warrants Additional Deference by a Court .................................8

16

17

2. The Directives do not Violate the Free Exercise Clause......................12

18

a. The Directives are Generally Applicable ...................................12

19

b. The Directives are Neutral.........................................................13

20

c. The Directives are not Individual Exemptions..........................16

21

3. The Directives do not otherwise Violate the First Amendment ..........16

22

4. The Directives Comply with Rational Basis Review............................17

23

B. Calvary is Unlikely to Suffer Irreparable Harm without an Injunction .......18

24

C. The Balance of the Equities Favors Protecting Nevadans .............................18

25

D. Denying the Injunction Protests Nevadans from Worsened Risk

of COVID-19 .....................................................................................................19

26

27 V. CONCLUSION............................................................................................................20

28

i

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 3 of 27

1

TABLE OF AUTHORITIES

2 CASES

Page(s)

3 Antietam Battlefield KOA v. Hogan,

No. CV CCB-20-1130, 2020 WL 2556496 (D. Md. May 20, 2020) .............................15

4 Boone v. Boozman,

5

27 F.Supp.2d 938 (E.D. Ark. 2002)...............................................................................9

6

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ...............................................................................................12, 17

7 Calvary Chapel of Bangor v. Mills,

8

Case No. 1:20-cv-00156-NT, 2020 WL 2310913 (D. Me. May 9, 2020) .....................15

9

Cassell v. Snyders, Case No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020)..............................15

10 Church of the Lukumi Babalu Aye v. City of Hialeah,

11

508 U.S. 520 (1993) ..........................................................................................12-14, 17

12

Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380, 387 (1902) ...............................................................................................8

13 Cross Culture Christian Center et al. v. Newsom,

14

Case No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Calif. May 5, 2020)...15

15

Elim Romanian Pentecostal Church et al. v. Pritzker, Case No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020)............................10, 14

16 Employment Division v. Smith,

17

494 U.S. 872 (1990) .....................................................................................................12

18

Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060 (9th Cir. 2014) .......................................................................................7

19 Gibbons v. Ogden,

20

22 U.S. 1 (1824) ...........................................................................................................19

21

Gish v. Newsom, 2020 WL 1979970 (Apr. 23, 2020) ........................................................................12, 15

22 In re Abbott,

23

954 F.3d 772 (5th Cir. 2020) .......................................................................................10

24

Jacobson v. Massachusetts, 197 U.S. 11 (1905) .........................................................................................................9

25 Legacy Church, Inc. v. Kunkel,

26

Case No. Civ. 20-0327 JB/SCY, 2020 WL 1905586 (D.N.M. Apr. 17, 2020).............15

27

Liberian Cmty. Ass’n of Connecticut v. Malloy, 2017 WL 4897048 (D. Conn. Mar. 30, 2017) ................................................................9

28 / / /

ii

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 4 of 27

1 Lighthouse Fellowship Church v. Northam,

2

Case No. 2:20cv204, 2020 WL 2110416 (E.D. Va. May 1, 2020) ...............................15

3

Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020) .......................................................................................15

4 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n.,

5

138 S.Ct. 1719 (2018) ..................................................................................................13

6

Prince v. Massachusetts, 321 U.S. 158 (1944) ...........................................................................................9, 11, 18

7 South Bay United Pentecostal Church, et al. v. Newsom, et al.,

8

Case No. 19A1044, 2020 WL 2813056 (May 29, 2020) .............................10-11, 14, 17

9

Spell v. Edwards, 2020 WL 2509078 (M.D. La. May 15, 2020)...............................................................15

10 Winter v. Natural Res. Def. Council, Inc.,

11

555 U.S. 7 (2008) ................................................................................................7, 18-19

12 STATUTES AND REGULATIONS

13 NRS 414.0345 ..........................................................................................................................5

14 NRS 414.035 ............................................................................................................................5

15 OTHER AUTHORITY

16 CDC Coronavirus Disease 2019, Social Distancing (last accessed May 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html ...3
17 Coronavirus Resource Center, COVID-19 Map (last visited May 27, 2020),
18 https://coronavirus.jhu.edu/map.html ....................................................................................3

19 Fed. R. Evid. 201......................................................................................................................4

20 Nevada Governor’s website, http://gov.nv.gov/News/Emergency_Orders/Emergency_Orders/ ..........................................4
21 Rothstein, Mark A., From SARS to Ebola: Legal and Ethical Considerations for Modern
22 Quarantine, 12 Ind. Health L. Rev. 227 (2015)......................................................................8

23 Social Distancing (last accessed May 27, 2020), https://nvhealthresponse.nv.gov/info/event-organizers/ ........................................................4
24 Sui-Lee Wade and Donald G. McNeil, Jr., China Identifies
25 New Virus Causing Pneumonialike Illness, N.Y. TIMES (Jan. 8, 2020), http://www.nytimes.com/2020/01/08/health/china-pneumonia-outbreak-virus.html ...........2
26 The President’s Coronavirus Guidelines for America, 30 Days to Slow the Spread
27 (Mar. 31, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_ coronavirus-guidance_8.5x11_315PM.pdf ..............................................................................4
28

iii

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 5 of 27
1 White House, https://whitehouse.gov/presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ ............3, 19
2 White House, Opening Up America Again (last accessed May 27, 2020),
3 https://www.whitehouse.gov/openingamerica/ .......................................................................4 4 WHO Director-General’s Opening Remarks (Mar. 11, 2020),
https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the5 media-briefing-on-covid-19---11-march-2020 .........................................................................3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iv

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 6 of 27

1

Defendants Steve Sisolak, in his official capacity as the Governor of Nevada and

2 Aaron D. Ford, in his official capacity as Attorney General of Nevada (collectively

3 “Defendants”) hereby oppose Plaintiff Calvary Chapel Dayton Valley’s (“Plaintiff” or

4 “Calvary”) Emergency Motion for Preliminary Injunction.

5

This opposition is made and based upon all matters of record herein, the

6 Memorandum of Points and Authorities submitted herewith, and upon such oral

7 arguments as the court may allow at the time of hearing of this matter

8

DATED this 2nd day of June, 2020.

9

AARON D. FORD

10

Attorney General

11

By: /s/ Craig A. Newby CRAIG A. NEWBY (Bar No. 8591)

12

Deputy Solicitor General State of Nevada

13

Office of the Attorney General 555 E. Washington Avenue, Suite 3900

14

Las Vegas, NV 89101

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 7 of 27

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Nevada, like all other states, has declared an emergency to protect lives from the

4 COVID-19 global pandemic. Following scientific evidence and federal guidelines, Nevada

5 has implemented social distancing to protect Nevadans from COVID-19 to mitigate the risk

6 of exposure and spread. Social distancing involves, among other things, the distance

7 between people and the length of time people are exposed to each other. To minimize the

8 risk of transmitting COVID-19, social distancing requirements for larger gatherings where

9 people congregate together for extended periods of time need to be different than

10 requirements for individuals to engage in commerce. Nevada’s actions have

11 “flattened the curve,” and efforts continue to reopen the state slowly to ensure that the

12 economic sacrifices made to achieve this were not in vain. The reopening effort included

13 Directive 021, issued last Thursday, providing that religious organizations could begin

14 conducting services (including Sunday), under similar limitations placed on other mass

15 gatherings and live entertainment events.

16

Here, Plaintiff Calvary Chapel Dayton Valley (“Plaintiff” or “Calvary”) seeks a

17 preliminary injunction on the mistaken premise that Nevada’s directives treat religious

18 organizations differently than similar mass gatherings. This is not true. Last Friday, the

19 United States Supreme Court denied an injunction for a church that also sought to open

20 last Sunday. There, as set forth below, the Supreme Court recognized that social distancing

21 is different for mass gatherings than for commerce, and that there is a rational basis for

22 this distinction.

23

For this reason and the others set forth below, Calvary is unlikely to succeed on the

24 merits in this case. For the foregoing reasons, the motion must be denied.

25 II. BACKGROUND

26

A. The Global Pandemic

27

In January 2020, China identified a novel coronavirus causing what we now know

28 as COVID-19. Sui-Lee Wade and Donald G. McNeil, Jr., China Identifies New Virus

2

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 8 of 27

1 Causing Pneumonialike Illness, N.Y. TIMES (Jan. 8, 2020),

2 http://www.nytimes.com/2020/01/08/health/china-pneumonia-outbreak-virus.html. Less

3 than three months later, on March 11, 2020, the World Health Organization (“WHO”)

4 declared COVID-19 to be a pandemic. See WHO Director-General’s Opening Remarks

5 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-

6 remarks-at-the-media-briefing-on-covid-19---11-march-2020. The WHO “called … for

7 countries to take urgent and aggressive action ….” Id. The White House similarly declared

8 an emergency on March 13, 2020.

https://whitehouse.gov/presidential-

9 actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-

10 disease-covid-19-outbreak/. Upon information and belief, each state has declared an

11 emergency as a result of COVID-19.

12

Despite this urging, COVID-19 spread quickly across the United States. To date,

13 more than five million people worldwide have been diagnosed as infected with COVID-19.

14 See Johns Hopkins Medical Center: Coronavirus Resource Center, COVID-19 Map (last

15 visited May 27, 2020), https://coronavirus.jhu.edu/map.html. Approximately 30% of those

16 diagnoses are in the United States. Id. More than three hundred fifty thousand people

17 have died worldwide, of which approximately one hundred thousand are Americans. Id.

18 There currently is no vaccine.

19

Based on how COVID-19 is spread, the CDC recommends that everyone practice

20 social distancing. According to the Centers for Disease Control and Prevention (“CDC”),

21 “[l]imiting face-to-face contact with others is the best way to reduce the spread of

22 coronavirus disease 2019 (COVID-19).” See CDC Coronavirus Disease 2019, Social

23 Distancing (last accessed May 27, 2020), https://www.cdc.gov/coronavirus/2019-

24 ncov/prevent-getting-sick/social-distancing.html. To practice social or physical distancing,

25 the CDC recommends that people do not gather in groups, stay out of crowded places, and

26 avoid mass gatherings. Id. The CDC further recommends avoiding “gatherings of any size

27 outside your household.” Id.

28 / / /

3

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 9 of 27

1

Simply put:

2

When it comes to gatherings, the risk is not just based on how

many people there are, but rather how closely they are gathered

3

and how they are interacting with each other. The risk does not

disappear in smaller gatherings. It’s the distance and

4

precautions that will make the difference.

5 See

Social

Distancing

(last

accessed

May

27,

2020),

6 https://nvhealthresponse.nv.gov/info/event-organizers/.

7

Consistent with this practice, the White House issued guidance intended to slow the

8 spread of COVID-19, including recommendations that all people avoid social gatherings of

9 more than ten people and that indoor/outdoor venues, where groups of people congregate

10 and there is evidence of community transition, close. See The President’s Coronavirus

11 Guidelines for America, 30 Days to Slow the Spread (Mar. 31, 2020),

12 https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-

13 guidance_8.5x11_315PM.pdf. Even now, according to Phase Two of the White House’s

14 “Opening Up America Again” guidelines, “[s]ocial settings of more than 50 people, where

15 appropriate distancing may not be practical, should be avoided unless precautionary

16 measures are observed.” White House, Opening Up America Again (last accessed May 27,

17 2020), https://www.whitehouse.gov/openingamerica/.

18

Simply put, COVID-19 remains a clear, present danger to the United States,

19 Nevada, and the world.

20

B. Nevada’s Response to the Global Pandemic

21

Given the recommendations of the WHO and the CDC, Governor Sisolak declared a

22 state of emergency on March 12, 2020.1 He did so pursuant to his authority under the laws

23 and constitution of the State of Nevada to contain the spread of COVID-19.

24 / / /

25 / / /

26

27

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

28

These documents are located on the Nevada Governor’s http://gov.nv.gov/News/Emergency_Orders/Emergency_Orders/.

website

at

4

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 10 of 27

1

Nevada law defines an “emergency” as:

2

[A]n occurrence or threatened occurrence for which, in the

determination of the Governor, the assistance of state agencies is

3

needed to supplement the efforts and capabilities of political

subdivisions to save lives, protect property and protect the health

4

and safety and persons in this state, or to avert the threat of

damage to property or injury to or the death of persons in this

5

state.

6 NRS 414.0345. Under NRS 414.035, emergency management is “the preparation for and

7 the carrying out of all emergency functions, . . ., to minimize injury and repair damage

8 resulting from emergencies or disasters caused by . . . natural causes.” Id.

9

Subsequently, Governor Sisolak issued a series of emergency directives to mitigate

10 community spread of COVID-19 and provide a framework for social distancing consistent

11 with CDC guidelines as well as best practices adopted by the majority of other states. To

12 the extent Calvary contends that the most recent directive violates its constitutional rights,

13 it shall be reviewed in more detail.

14

C. Directive 21 and Calvary’s Allegations

15

Directive 021 implements Phase 2 of Nevada’s reopening. A true and correct copy of

16 Directive 021 is attached hereto as Exhibit A. Notably, this directive was finalized after

17 Calvary filed this motion, in which Calvary makes mistaken assumptions regarding mass

18 gathering restrictions. Accordingly, it requires detailed review to consider how it treats

19 religious organizations relative to other social gatherings that are most similar to it in how

20 people congregate together and communicate.

21

1. Mass Gatherings Generally

22

Section 10 of Directive 021 addresses mass gatherings generally. It increases the

23 limit for mass gatherings to up to 50 people.

24

It specifically reads as follows:

25

SECTION 10: Section 1 of Directive 007 is hereby further

amended to provide that effective 12:01 am on May 29, 2020, the

26

Nevada general public shall not gather in groups of more than

fifty in any indoor or outdoor area subject to the limitations of

27

this section, whether publicly owned or privately owned where

the public has access by right or invitation, express or implied,

28

5

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 11 of 27

1

whether by payment of money or not. Section 3 of Directive 007

shall remain in force.

2

3 As alleged by Calvary, religious organizations are being treated the same as mass

4 gatherings of the general public.

5

2. Numerous Other Venues Are Limited to No More than 50 People

6

Directive 021 imposes limits to the lesser of 50% occupancy or 50 people to numerous

7 activities and venues within Nevada. These include:

8

• Non-retail indoor venues, such as movie theatres, bowling alleys, and arcades; (see

9

id. at § 20)

10

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

11

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

12 Further, Directive 021 maintains stricter limits on live performances of all types,

13 prohibiting spectators. Specifically, Section 22 states:

14

SECTION 22: Effective 12:01 am on May 29, 2020, musical

performances, live entertainment, concerts, competitions,

15

sporting events, and any events with live performances may

resume, but shall remain closed for public attendance. Events

16

held pursuant to this section may be recorded, filmed, streamed

or broadcast to the public. Live events ordinarily regulated by

17

the Nevada Athletic Commission or the Nevada Gaming Control

Board must be approved by the applicable board prior to the

18

event. All other live events under this Section must be approved

by the Nevada Department of Business & Industry, Division of

19

Industrial Relations prior to the event. Events held pursuant to

this Section must additionally comply with all guidance

20

promulgated by NV OSHA.

21

3. Communities of Worship and Faith-Based Organizations

22

With this context, it now makes sense to consider the provision Calvary contests.

23 Section 11 of Directive 021 addresses communities of worship and faith-based

24 organizations. Identical to mass gatherings generally and with equal treatment as to

25 numerous other gatherings, services are limited to fifty people. Specifically, this provision

26 reads as follows:

27

SECTION 11: Communities of worship and faith-based

organizations, including without limitation, churches,

28

synagogues, mosques, and temples, are strongly encouraged to

6

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 12 of 27

1

offer online and drive-up services to the greatest extent possible.

Effective 12:01 am on May 29, 2020, consistent with other

2

Directives on public gatherings, houses of worship may conduct

indoor in-person services in a manner so that no more than fifty

3

persons are gathered, and all social distancing requirements are

satisfied. This limitation shall not apply to houses of worship

4

offering drive-up services pursuant to Section 10 of Directive

016. Houses of worship offering indoor, in-person services are

5

encouraged to follow the guidelines promulgated by the LEAP,

as well as the following provisions that are consistent with other

6

Directives on public gatherings:

(1) Seating must be arranged to ensure a minimum of six feet

7

of separation between congregants who do not reside in the same

household.

8

(2) Participants, including leaders and staff, are encouraged

to utilize face coverings to the greatest extent practicable.

9

(3) Houses of worship are encouraged to stagger services so

that the entrance and egress of congregants for different services

10

do not result in a gathering greater than fifty persons, and to

provide proper sanitation between services.

11

12

Plain comparison of the Directive 021 provisions highlights the same treatment for

13 similar types of gatherings, premised on their relatively higher risk of COVID-19

14 transmission. It is rational and warranted as Nevada continues to ensure safety, which

15 will allow its person-based tourism economy to recover and succeed again. Complaints that

16 mass gatherings must be treated the same as commerce, which involves entirely different

17 lengths and types of person-to-person contact, have been rejected by numerous courts

18 through the United States, including the Supreme Court and the Ninth Circuit, and must

19 be rejected here.

20

This motion must be denied.

21 III. LEGAL STANDARD FOR INJUNCTIVE RELIEF

22

To obtain a preliminary injunction, Calvary must demonstrate that (1) they are

23 likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence

24 of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is

25 in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This

26 traditional test applies absent Plaintiff’s ability to demonstrate that the balance of equities

27 tips sharply in their favor. Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 1066 n.2

28 (9th Cir. 2014).

7

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 13 of 27

1

Calvary cannot meet this burden because they are unlikely to succeed on the merits

2 of their claim. Further, Calvary cannot demonstrate irreparable harm, as nothing prevents

3 them from offering additional services if necessary to accommodate all congregants.

4

Finally, the balance of equities and the public interest during these unprecedented

5 times weigh heavily against injunctive relief. Nevada is in the midst of an extended public

6 health emergency. Its efforts to mitigate the spread of COVID-19 to avoid overwhelming

7 health resources have worked thus far. Temporary, narrowing restrictions on the size of

8 mass gatherings, including for religious services, do not outbalance the health and well-

9 being of all Nevada citizens. In light of the tremendous uncertainty continuing to surround

10 this new and deadly virus, it would be rash to eliminate the entire restriction for this

11 certain type of mass gathering before public-health officials have had the opportunity to

12 evaluate evidence of the policy’s effectiveness in practice.

13

The motion should be denied.

14 IV. LEGAL ARGUMENT

15

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

16

1. The Exercise of Emergency Police Powers During a Public

Health Crisis Warrants Additional Deference by a Court

17

18

Nevada’s power to regulate public health and safety, including the greater power of

19 quarantine, predate the Constitution.2 The Supreme Court has recognized that the

20 Constitution’s reserves power to the states to regulate public health, safety, and morals.

21 Gibbons v. Ogden, 22 U.S. 1 (1824). The United States Supreme Court has explicitly upheld

22 the exercise of broad quarantine powers by the states. Compagnie Francaise de Navigation

23 a Vapeur v. Louisiana State Board of Health, 186 U.S. 380, 387 (1902).

24 / / /

25 / / /

26

2 The earliest law providing for quarantine was enacted by the Massachusetts Bay

27

Colony in 1647 to quarantine ships from the West Indies due to the threat of plague. Rothstein, Mark A., From SARS to Ebola: Legal and Ethical Considerations for Modern

28

Quarantine, 12 Ind. Health L. Rev. 227, 230 (2015). The quarantine power was especially important in port cities, such as New York and Boston. Id.

8

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 14 of 27

1

More recently, though more than one hundred years ago, the Supreme Court

2 established a framework governing the emergency exercise of state authority during a

3 public health crisis. Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905).

4

Facing a compulsory vaccination law enacted during the smallpox epidemic, the

5 Court described the state’s police power to combat an epidemic:

6

In every well-ordered society charged with the duty of conserving

the safety of its members, the rights of the individual in respect

7

to his liberty may at times, under the pressure of great dangers,

be subjected to such restraint, to be enforced by reasonable

8

regulations, as the safety of the public may demand.

9 Id. at 29.

10

There, the Court held that when a state exercises emergency police powers to enact

11 an emergency public health measure, courts will uphold it unless (1) there is no real or

12 substantial relation to public health, or (2) the measures are “beyond all question” a “plain

13 palpable violation of rights secured by the fundamental law.” Id. at 30. This recognizes

14 that “a community has the right to protect itself against an epidemic of disease which

15 threatens the safety of its members.” Id. at 28. As the Court explained, “[t]he possession

16 and enjoyment of all rights are subject to such reasonable conditions as may be deemed by

17 the governing authority of the country essential to the safety, health, peace, good order,

18 and morals of the community.” Jacobson, 197 U.S. at 26-27. The Court further held that

19 during public health crises, “it is no part of the function of a court …to determine which of

20 two modes was likely to be the most effective for the protection of the public against

21 disease.” Id. at 30.

22

Courts throughout the past century have consistently applied Jacobson to public

23 health emergencies. See, e.g., Liberian Cmty. Ass’n of Connecticut v. Malloy, 2017 WL

24 4897048, at *10 (D. Conn. Mar. 30, 2017) (applying Jacobson standard to Ebola

25 quarantine); Boone v. Boozman, 217 F.Supp.2d 938, 954 (E.D. Ark. 2002) (applying

26 Jacobson standard to compulsory school immunization); Prince v. Massachusetts, 321 U.S.

27 158, 166-67 (1944) (applying Jacobson framework stating the “[r]ight to practice religion

28 freely does not include the liberty to expose the community. . . to communicable diseases”).

9

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 15 of 27

1

During the current global pandemic, courts have applied Jacobson as well. See, e.g.,

2 In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020) (applying Jacobson framework to

3 constitutional challenge to executive order by Texas Governor relating to COVID-19); Elim

4 Romanian Pentecostal Church et al. v. Pritzker, Case No. 20-1811, 2020 WL 2517093 (7th

5 Cir. May 16, 2020).

6

Last Friday, May 29th, the Supreme Court denied injunctive relief for a California

7 church challenging California’s similar temporary restrictions on public gatherings in light

8 of the COVID-19 crisis, reaffirming the applicability of Jacobson.3 See South Bay United

9 Pentecostal Church, et al. v. Newsom, et al. Case No. 19A1044, 2020 WL 2813056 at *1 (May

10 29, 2020), a true and correct copy of which is attached hereto as Exhibit B. There, the

11 Court rejected injunctive relief, consistent with the Ninth Circuit’s denial of injunctive

12 relief. Id.

13

To begin with, the Supreme Court noted the difference between mass gatherings and

14 commerce. Specifically, the Court stated that California’s restrictions “apply to comparable

15 secular gatherings, including lectures, concerts, movie showings, spectator sports, and

16 theatrical performances, where large groups of people gather in close proximity for

17 extended periods of time.” Id. The Court further noted that California’s restrictions are

18 more lenient for dissimilar activities, “in which people neither congregate in large groups

19 nor remain in close proximity for extended periods.” Id.

20

Next, the Supreme Court reaffirmed Jacobson and the discretion of state officials

21 such as Defendant to make emergency public health determinations. Specifically, the

22 Court noted that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the

23 people’ to the politically accountable officials of the States ‘to guard and protect.’” Id.

24 (quoting Jacobson, 197 U.S. at 38). Further, the Court held that when “those officials

25 ‘undertake [ ] to act in areas fraught with medical and scientific uncertainties,’ their

26

3 California’s restriction was the lesser of 25% of building capacity or a maximum

27

100 attendees. Such a restriction, applied to Calvary, would limit Calvary to approximately 45 people per service. See Mot. at 3:15-19. In short, the California order is more restrictive

28

than Nevada’s emergency directive, yet the United States Supreme Court denied injunctive relief.

10

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 16 of 27

1 latitude ‘must be especially broad.’” South Bay, 2020 WL 2813056 at *1 (quoting Marshall

2 v. United States, 414 U.S. 417, 427 (1974)). Finally, “[w]here those broad limits are not

3 exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’

4 which lacks the background, competence, and expertise to assess public health and is not

5 accountable to the people.’” Id. (quoting Garcia v. San Antonio Metropolitan Transit

6 Authority, 469 U.S. 528, 545 (1985)).

7

Under Jacobson, as reaffirmed by South Bay, Plaintiffs cannot prevail. First,

8 Calvary cannot establish that the emergency declaration and related directives have no

9 real or substantial relation to public health. More than one hundred thousand Americans

10 have died so far. Hospitals were overrun in Italy and New York City. Until there is a

11 vaccine, the primary method for preserving a “flattened curve” is social distancing. Social

12 distancing has been recommended by the World Health Organization, the CDC, and the

13 federal government. Reducing prolonged exposure warrants limitations on mass

14 gatherings, such as those set forth in Directive 021 for a variety of activities and venues,

15 specifically including faith-based organizations.

16

Moreover, and as set forth above, mass gatherings are different than commerce,

17 based on the length of time a person is exposed to others who may be infected with COVID-

18 19. The emergency declaration and subsequent directives have addressed this public

19 health risk. Similar to California’s order at issue in South Bay, comparable secular

20 gatherings are subject to similar or more severe restrictions than places of worship, while

21 dissimilar commerce activities where people neither congregate in large groups nor remain

22 in close proximity for extended periods are treated more leniently.

23

Second, Calvary cannot establish that the emergency declaration and related

24 directives are “beyond all question” a “plain palpable violation of rights secured by the

25 fundamental law.” To be sure, the free exercise of religion is constitutionally protected.

26 But as Supreme Court stated in Prince v. Massachusetts, the “[r]ight to practice religion

27 freely does not include the liberty to expose the community. . . to communicable diseases”.

28 321 U.S. at 166-67.

11

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 17 of 27

1

In fact, Defendants submit that the emergency declaration and related directives

2 comply with the United States and Nevada Constitutions even if this was an ordinary

3 exercise of the State’s police power, versus the emergency currently faced by the United

4 States, Nevada, and the world. Calvary’s claims will be analyzed under those standards

5 below.

6

2. The Directives do not Violate the Free Exercise Clause

7

Under traditional analysis of the Free Exercise Clause, “neutral, generally

8 applicable laws” are subject to rational basis review, even where they are applied to

9 religious practices. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694 (2014); see also

10 Employment Division v. Smith, 494 U.S. 872 (1990). In short, if the Orders do not target

11 religion, “the First Amendment has not been offended.” Employment Division, 494 U.S. at

12 878. Because the Directives at issue in this case are neutral laws of general applicability,

13 rationally based on the State’s goals of mitigating the spread and contraction of COVID-

14 19, similar to what the Supreme Court determined to “appear consistent with the Free

15 Exercise Clause of the First Amendment,” Plaintiffs’ claims fail.

16

a. The Directives are Generally Applicable

17

These orders are generally applicable. As the Supreme Court explained in Lukumi,

18 although “[a]ll laws are selective to some extent, …categories of selection are of paramount

19 concern when a law has the incidental effect of burdening religious practice.” Lukumi, 508

20 U.S. at 542. Even “in pursuit of legitimate interests,” the government “cannot in a selective

21 manner impose burdens only on conduct motivated by religious belief.” Id. at 543.

22

Calvary ignores the difference in type of assembly as the entities – both religious

23 and secular – that are subject to the orders. Schools (to the extent open at all), live concert

24 halls, movie theatres, and sports venues that wish to have spectators are burdened

25 similarly to faith-based organizations. The places covered are places where “people sit

26 together in an enclosed space to share a communal experience.” Gish v. Newsom, 2020 WL

27 1979970 (Apr. 23, 2020). The Governor has not selectively “impose[d] burdens only on

28 / / /

12

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 18 of 27

1 “religious conduct, but rather equally on all types of conduct that are likely to spread

2 COVID-19. See Lukumi, 508 U.S. at 543.

3

b. The Directives are Neutral

4

A law is not neutral if its object is to “infringe upon or restrict practices because of

5 their religious motivation.” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S.

6 520, 533 (1993). A lack of neutrality can be clear from the face of the law if it “refers to a

7 religious practice without a secular meaning discernable from the language or context.” Id.

8 But the Free Exercise Clause also forbids “subtle departures from neutrality,” including

9 evidence of bias that might not be reflected in the law’s text. Masterpiece Cakeshop, Ltd.

10 v. Colo. Civil Rights Comm’n., 138 S.Ct. 1719, 1731 (2018).

11

In determining if a law’s object is neutral, courts consider “the effect of [the] law in

12 its real operation” and often call upon principles developed in equal protection cases.

13 Lukumi, 508 U.S. at 535, 540. Thus, a law will be found to violate the Free Exercise Clause

14 if it was enacted “because of,” not merely “in spite of,” its restrictions on religious practice.

15 Id. at 540. Relevant evidence on this point can include a proscription of religious activity

16 in a way not applied to comparable secular activity; a “pattern” of “animosity” towards the

17 religious group be the drafters; and the suppression of “much more religious conduct that

18 is necessary” to achieve the asserted, legitimate purposes. Id. at 536, 542, 543.

19

Here, the Directives are plainly neutral. They prohibit all mass gatherings

20 exceeding fifty people, whether general mass gatherings, religious services, movie theaters,

21 or trade schools. They prohibit live entertainment venues from having any spectators.

22 Calvary offers no facts suggesting that Governor Sisolak has any animus towards religious

23 organizations. Moreover, churches remain free to conduct drive-in services, online

24 programs, and in-person assemblies of up to fifty people, consistent with the White House’s

25 Phase 2 guideline. Merely referencing religious activity separately as part of a list of

26 broader mass gatherings covered by the fifty-person limit does not show that the order’s

27 “object or purpose” was to target religious activity for harsher treatment. Id. at 533.

28 Instead, the orders are designed to restrict only the aspects of the religious conduct – the

13

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 19 of 27

1 large, in-person gatherings for extended time periods – that undermine the secular purpose

2 of slowing the spread of COVID-19. This in no way suppresses “much more religious

3 conduct that is necessary” to achieve the goal of mitigation and “flattening the curve”

4 during the current pandemic.

5

Nevertheless, Calvary asserts that the orders are not neutral because religious

6 organizations are being treated differently than businesses. Mot. at 7:1-8:24. In this Free

7 Exercise analysis, however, the question is not whether any secular entity faces fewer

8 restrictions than any religious one. To be comparable, the secular conduct must

9 “endanger[] [the government’s] interests in a similar or greater degree than” the religious

10 conduct. Lukumi, 508 U.S. at 543. And box stores, grocery stores, and construction sites,

11 characterized by transiency and …, simply do not pose the same amount of threat of

12 exposure to and spread of COVID-19 as do religious institutions that hold hours-long

13 services with its congregants sitting in close proximity. Such has been the finding in the

14 majority of cases nationwide, which have rejected challenges to similar orders.

15

The Supreme Court upheld this analysis in South Bay United Pentecostal Church,

16 et al. v. Newsom, et al. Case No. 19A1044, 2020 WL 2813056 at *1 (May 29, 2020). Prior to

17 the Supreme Court’s consideration, the Ninth Circuit upheld the denial of a request for

18 injunctive relief tied to holding any in-person religious services pursuant to the State of

19 California and County of San Diego’s stay-at-home orders. Case No. 20-55533, 2020 WL

20 2687079 (9th Cir. May 22, 2020). Similarly, the Seventh Circuit denied a request for

21 injunctive relief on a free-exercise claim against Illinois’ emergency orders, recognizing that

22 the temporary numerical restrictions applied “also to the most comparable types of secular

23 gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which

24 groups of people gather together for extended periods, especially where speech and singing

25 feature prominently and raise risks of transmitting the COVID-19 virus.” Elim Romanian

26 Pentecostal Church et al. v. Pritzker, Case No. 20-1811, 2020 WL 2517093 (7th Cir. May 16,

27 2020). The Seventh Circuit further observed that “[w]orship services do not seem

28

14

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 20 of 27

1 comparable to secular activities permitted under the Executive Order, such as shopping, in

2 which people do not congregate or remain for extended periods.” Id.

3

Two district courts within this circuit have likewise rejected Free Exercise

4 challenges to California’s emergency orders. In Cross Culture Christian Center et al. v.

5 Newsom, the court recognized the difference between individuals purchasing various items

6 as different than in-person church services, which are designed to be a communal

7 experience, one for which a large group of individuals come together at the same time in

8 the same place for the same purpose. See Cross Culture Christian Center et al. v. Newsom,

9 Case No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111, at *6 (E.D. Calif. May 5, 2020),

10 (internal quotations omitted). Instead, the court found that in-person religious services are

11 more akin to attending concerts and sporting events. Id.

12

Similarly, in Gish v. Newsom, the district court noted that “[a]n in-person religious

13 gathering is not analogous to picking up groceries, food, or medicine, where people enter a

14 building quickly, do not engage directly with others except at points of sale, and leave once

15 the task is complete.”4 Gish v. Newsom, Case No. EDCV-20-755JGB (KKx), 2020 WL

16 1979970, at *6 (C.D. Cal. Apr. 23, 2020).

17

In this context, where the Supreme Court has weighed in on substantively the same

18 legal issue, Calvary’s reliance on Maryville Baptist Church v. Beshear is misplaced. 957

19 F.3d 610 (6th Cir. 2020). There, the Sixth Circuit did not consider the differences between

20 commerce and in-person church services, as did the Supreme Court, the Seventh Circuit,

21 and the Ninth Circuit, before overturning the emergency order at issue. And in Roberts v.

22 Neace, the Sixth Circuit actually stated that the “straightforward remedy” for addressing

23 the in-person religious services risk was to “limit the number of people who can attend a

24

25

4 Other district courts have resolved Free Exercise challenges the same way. See, e.g., Antietam Battlefield KOA v. Hogan, No. CV CCB-20-1130, 2020 WL 2556496, at *7–9

26

(D. Md. May 20, 2020); Legacy Church, Inc. v. Kunkel, Case No. Civ. 20-0327 JB/SCY, 2020 WL 1905586 (D.N.M. Apr. 17, 2020); Cassell v. Snyders, Case No. 20 C 50153, 2020 WL

27

2112374 (N.D. Ill. May 3, 2020); Lighthouse Fellowship Church v. Northam, Case No. 2:20cv204, 2020 WL 2110416, at *8 (E.D. Va. May 1, 2020); Calvary Chapel of Bangor v.

28

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).

15

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 21 of 27

1 service at one time.” 958 F.3d 409, *5 (6th Cir. 2020). Consistent with White House

2 guidance, this is precisely what Nevada has done for all mass gatherings, including at

3 churches. The Supreme Court has rejected this argument.

4

This court should reject this argument as well.

5

c. The Directives are not Individual Exemptions

6

As was argued in South Bay by the church, Calvary argues that Nevada’s emergency

7 directives constitute “a system of individual exemptions,” such that they trigger strict

8 scrutiny.5 Mot. at 15:1-5. The Supreme Court rejected this argument by not applying strict

9 scrutiny when denying South Bay’s request for injunctive relief.

10

Further, there are no facts supporting Calvary’s characterization that the Governor

11 has created “a system of individual exemptions.” As set forth above, this is simply untrue.

12 Faith-based organizations are being treated the same or more favorably that other mass

13 gatherings, which share similar risks for spreading COVID-19. None are allowed more

14 than 50 people to be in one locations congregated together. This is not a case where a lower-

15 level government official is making individualized determinations of whether an

16 unemployed person refused to work “without good cause.” Instead, the Nevada

17 Constitution and the Nevada Legislature has provided the Governor with the authority to

18 declare a public health emergency and take action to stop it, consistent with what the

19 federal government and every other state has done. It has not been used as Calvary

20 mistakenly argues here. This argument for strict scrutiny must fail.

21

3. The Directives do not otherwise Violate the First Amendment

22

Calvary argues that “the State has banned the Church from holding worship services

23 on its own property.” Mot. at 16:21-22. This is simply not true, as Calvary was free to

24 conduct worship services (or any other mass gathering) on its own property for up to 50

25 people at a time, subject to social distancing and other sanitary requirements. See Ex. A.

26 / / /

27

28

5 See Emergency Application for Writ of Injunction (May 26, 2020) at 20-22, a true and correct copy of which is attached hereto as Exhibit C.

16

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 22 of 27

1 Calvary also continues to have the freedom of expression and speech through online or

2 drive-in services.

3

Calvary’s argument that similar temporary restrictions are not imposed on other

4 expressive activities is not true. As addressed above, museums, movie theatres, and art

5 galleries are subject to similar maximum attendance of 50 people and live performance

6 venues are not yet allowed to have any spectators. See id. Simply put, Nevada’s emergency

7 declaration and subsequent directives do not regulate the content of any expression.

8

Accordingly, strict scrutiny does not apply to Nevada’s emergency declaration and

9 subsequent directives on this basis.

10

4. The Directives Comply with Rational Basis Review

11

Because the orders are neutral and generally applicable, Calvary has to show that

12 they are unsupported by a rational basis to prevail. See Burwell v. Hobby Lobby stores,

13 Inc., 573 U.S. 682, 694 (2014). Given the State’s interest in limiting the spread of COVID-

14 19, a highly contagious illness that spreads more easily through close contact, Calvary is

15 unable to make such a showing.

16

Further, Calvary’s analysis as to why the emergency directives do not constitute the

17 “least restrictive means” of furthering any compelling interest highlights why Jacobson

18 and South Bay provide state officials with added discretion when exercising emergency

19 police powers. It is not the place of Calvary, Calvary’s counsel, or this court to exercise

20 discretion on where or how to protect public health against a novel, highly contagious virus.

21

Here, the Governor’s Orders were developed in response to an emergency situation.

22 Id. at 543. Unlike the ordinance at issue in Lukumi, the Governor’s Orders do not “pursue

23 the [State]’s governmental interests only against conduct motivated by religious belief.” Id.

24 at 545. There were not “gerrymandered with care to proscribe religious” gatherings. Id. at

25 521. Rather, the Directives pursue the goal of slowing the spread of a deadly pandemic and

26 saving lives by closing temporarily all places where more than fifty people might gather,

27 subject to certain exceptions that are themselves designed carefully to preserve life, health,

28 / / /

17

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 23 of 27

1 and livelihood. This specifically includes grocery stores to provide food allowing people to

2 cook while staying at home. Cf. id. at 537.

3

The Governor’s Orders are neutral and generally applicable. They are facially

4 neutral, do not “target” religious establishments, and are not underinclusive. Again, “[t]he

5 right to practice religion freely does not include liberty to expose the community …to

6 communicable disease…ill health or death.” Prince v. Massachusetts, 312 U.S. 158, 166-67

7 (1944). For these reasons, Calvary is unlikely to succeed on the merits of its Free Exercise

8 claim. This warrants denial of the motion.

9

B. Calvary is Unlikely to Suffer Irreparable Harm without an Injunction

10

Here, Calvary was already allowed to conduct in-person church services for up to 50

11 people a service, while continuing virtual services. Simply doubling the number of existing

12 church services would allow Calvary to conduct in-person church services for its entire

13 congregation. Particularly where these mass gathering requirements are generally

14 applicable, there is no factual basis for concluding that Calvary has or will suffer

15 irreparable harm.

16

C. The Balance of the Equities Favors Protecting Nevadans

17

To prevail on their Motion, Calvary must also show that the balance of the equities

18 weigh in their favor. It does not.

19

“A preliminary injunction is an extraordinary remedy never awarded as of right. In

20 each case, courts “must balance the competing claims of injury and must consider the effect

21 on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at

22 24 (internal citations omitted).

23

Here, Calvary presumes it should be treated the same as a business operating in

24 commerce, ignoring the difference between commerce and mass gatherings for purposes of

25 COVID-19 risk. The Supreme Court and the Ninth Circuit have rejected ignoring these

26 differences. In contrast, the Governor has an obligation to protect Nevadans’ health and

27 well-being, based on the risk. Consistent with White House guidelines for mass gatherings,

28 the Governor has implemented directives to slowly reopen Nevada to ensure the curve stays

18

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 24 of 27

1 flat and that there is not a need to revert back to earlier phases that required further

2 sacrifices from all Nevadans to remain safe.

3

D. Denying the Injunction Protects Nevadans from Worsened Risk of

COVID-19

4

5

Calvary must also demonstrate that the granting of its Motion is in the public

6 interest. It is not.

7

“In exercising their sound discretion, courts of equity should pay particular regard

8 for the public consequences in employing the extraordinary remedy of injunction.” Winter,

9 555 U.S. at 24. Similar to Winter’s consideration of military interests, Nevada is currently

10 in battle with the most significant public health emergency in over a century. To be clear,

11 after the World Health Organization declared a pandemic, President Trump declared a

12 nationwide emergency on March 13, 2020. See https://www.whitehouse.gov/presidential-

13 actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-

14 disease-covid-19-outbreak/. Governor Sisolak declared a Nevada emergency on March 12,

15 2020. Both the state and federal emergencies remain in effect.

16

There is no genuine doubt that Nevada has the power to protect the health of its

17 citizens, particularly in an emergency such as this. Prior to ratification of the Constitution,

18 various colonies had quarantine laws, thereby establishing the legal tradition of local and

19 state jurisdiction over matters of public health reflected in the Constitution’s reservation

20 of power to the states to regulate public health, safety, and morals. Gibbons v. Ogden, 22

21 U.S. 1 (1824).

22

It is in this context that Calvary seeks to substitute its judgment of the public

23 interest, seeking preference over any other mass gathering, for those representing us in

24 the local, state, and federal government.

25

This prong strongly warrants denial of the motion.

26 / / /

27 / / /

28 / / /

19

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 25 of 27

1 V. CONCLUSION

2

Nevada has had a successful beginning to its fight to limit death and injury

3 associated with COVID-19. This Court should not substitute its judgment for that of the

4 Governor during this ongoing emergency, particularly where Calvary is unlikely to succeed

5 on the merits of any claim.

6

The motion for preliminary injunction should be denied.

7

Dated: June 2nd, 2020.

8

AARON D. FORD

9

Attorney General

10

By: /s/ Craig A. Newby CRAIG A. NEWBY (Bar No. 8591)

11

Deputy Solicitor General State of Nevada

12

Office of the Attorney General 555 E. Washington Avenue, Suite 3900

13

Las Vegas, NV 89101

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 26 of 27

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of the State of Nevada, Office of the Attorney

3 General, and that on this 2nd day of June, 2020, I electronically filed the foregoing

4 document, OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR

5 PRELIMINARY INJUNCTION, with the Clerk of the Court by using the CM/ECF

6 system.

7

Participants in the case who are registered CM/ECF users will be served by the

8 CM/ECF system.

9

10

/s/ Kristalei Wolfe

Kristalei Wolfe

11

State of Nevada,

Office of the Attorney General

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

Case 3:20-cv-00303-RFB-VCF Document 29 Filed 06/02/20 Page 27 of 27

1

INDEX OF EXHIBITS

2

EXHIBIT

NO.

EXHIBIT DESCRIPTION

3

A

Directive 021

4

See South Bay United Pentecostal Church, et al.

5

B

v. Newsom, et al. Case No. 19A1044, 2020 WL

2813056 at *1 (May 29, 2020)

6

7

C

Emergency Application for Writ of Injunction (May 26, 2020) at 20-22

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NUMBER OF PAGES 14 6 43

22

 
 Case 3:20-cv-00303-RFB-VCF Document 32 Filed 06/02/20 Page 1 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1 Marquis Aurbach Coffing

Craig R. Anderson, Esq.

2 Nevada Bar No. 6882

Brian R. Hardy, Esq.

3 Nevada Bar No. 10068

10001 Park Run Drive

4 Las Vegas, Nevada 89145

Telephone: (702) 382-0711

5 Facsimile: (702) 382-5816

canderson@maclaw.com

6 bhardy@maclaw.com

Attorneys for Defendant Frank Hunewill

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

CALVARY CHAPEL DAYTON VALLEY,

Case Number:

10

3:20-cv-00303-LRH-CLB

Plaintiff,

11

vs.

LIMITED JOINDER OF

12

SHERRIFF FRANK HUNEWILL

STEVE SISOLAK, in his official capacity as TO THE OPPOSITION [ECF NO 29]

13 Governor of Nevada; AARON FORD, in his FILED BY THE GOVERNOR AND

official capacity as Attorney General of

ATTORNEY GENERAL OF NEVADA

14 Nevada; FRANK HUNEWILL, in his official

capacity as Sheriff of Lyon County,

15

Defendant.

16

17

Defendant, Frank Hunewill, in his official capacity as Sheriff of Lyon County, (the

18 “Sherriff”), by and through his attorneys of record, the law firm of Marquis Aurbach

19 Coffing, hereby files his Limited Joinder to the Opposition [ECF No. 29] filed by the

20 Governor and Attorney General of Nevada in the above referenced matter. This Opposition

21 is made and based upon the attached Memorandum of Points and Authorities, all pleadings

22 and papers on file herein, and any oral argument allowed at the time of the hearing.

23

Defendant Frank Hunewill

MEMORANDUM OF POINTS AND AUTHORITIES

24

I. INTRODUCTION

25

Issuing blanket edicts over an entire state as diverse as Nevada without taking into

26

account local needs does not seem narrowly tailored. For this reason, each County should

27

Page 1 of 5

MAC:11779-164 4060589_1 6/2/2020 3:38 PM

Case 3:20-cv-00303-RFB-VCF Document 32 Filed 06/02/20 Page 2 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1 be afforded discretion with respect to enforcement. Notably, Lyon County is not a

2 “hotspot” for COVID-19. And, unlike the larger Nevada counties, Lyon County has been

3 able to weather the effects of COVID-19 without a single death. Consequently, while Lyon

4 County law enforcement officers have been diligent in monitoring and assisting in the

5 COVID-19 efforts, enforcement of recommendations from the Centers for Disease Control

6 (the “CDC”) and the executive directives of the Governor have not been given priority over

7 any other law enforcement functions. Lyon County law enforcement officers have not and

8 will not be using their limited resources monitoring church attendance and/or parishioners’

9 adherence to social distancing recommendations. Simply put, whether the Plaintiff’s

10 services include more than the Governor’s recommended number of parishioners or whether

11 such parishioners adhere to the recommended social distancing during the worship services

12 is not a priority of Lyon County law enforcement officials. Lyon County law enforcement

13 officials are optimistic that the residents of the county will reasonably adhere to all CDC

14 guidelines and encourage Lyon County residents to act appropriately to assure they and their

15 neighbors remain safe and healthy. However, if there is a call, complaint or issue reported,

16 then such will be investigated and afforded the appropriate response necessary under the

17 circumstances.

18 II. LEGAL ARGUMENT

19

The Sherriff files this limited joinder to the Opposition filed by the Governor and

20 Attorney General. Notably, the Sherriff acknowledges that the United States Supreme Court

21 recently issued a determination denying similarly sought injunctive relief for a church

22 challenging California’s temporary restrictions on public gatherings in light of COVID-19.

23 See South Bay United Pentecostal Church, et al. v. Newsom, et al. Case No. 19A1044, 2020

24 WL 2813056 (May 29, 2020). See State Opposition [ECF No. 29] at Exhibit B.

25

The Supreme Court in South Bay United stated:

26

The precise question of when restrictions on particular social activities should

be lifted during the pandemic is a dynamic and fact-intensive matter subject

27

to reasonable disagreement. Our Constitution principally entrusts “[t]he

Page 2 of 5

MAC:11779-164 4060589_1 6/2/2020 3:38 PM

Case 3:20-cv-00303-RFB-VCF Document 32 Filed 06/02/20 Page 3 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1

safety and the health of the people” to the politically accountable officials of

the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38

2

(1905). When those officials “undertake[ ] to act in areas fraught with

medical and scientific uncertainties,” their latitude “must be especially

3

broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those

broad limits are not exceeded, they should not be subject to second-guessing

4

by an “unelected federal judiciary,” which lacks the background,

competence, and expertise to assess public health and is not accountable to

5

the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.

S. 528, 545 (1985).

6

Id., 2020 WL 2813056 at *2.

7

The Sheriff affirms that the “question of when restrictions on particular social

8

activities should be lifted during the pandemic is a dynamic and fact-intensive matter

9

subject to reasonable disagreement.” Id. (emphasis added). And, that such questions of fact

10

may not be best accomplished through general directives. Rather, it is important for the

11

officials entrusted to “to guard and protect” the “safety and health of the people” to act in

12

such areas. Id. (citing Jacobson, 197 U.S. at 38).

13

For this reason, each county and their elected officials should be afforded discretion

14

and latitude with respect to the enforcement of such general directives and restrictions. Here,

15

the Sheriff has not and will not be using his limited law enforcement resources to monitor

16

church attendance and/or parishioners’ adherence to social distancing recommendations.

17

Rather, the Sherriff is optimistic that his fellow Lyon County residents will reasonably

18

adhere to all CDC guidelines and he encourages Lyon County residents to act appropriately

19

to assure they and their neighbors remain safe and healthy. Nevertheless, if there is a call,

20

complaint or issue reported, then such will be investigated and afforded the appropriate

21

response necessary under the circumstances.

22

. . .

23

. . .

24

. . .

25

. . .

26

. . .

27

Page 3 of 5

MAC:11779-164 4060589_1 6/2/2020 3:38 PM

Case 3:20-cv-00303-RFB-VCF Document 32 Filed 06/02/20 Page 4 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1 III. CONCLUSION

2

Based upon the foregoing, the Sherriff respectfully requests that this Court follow the

3 directives of the United States Supreme Court and affirms that he will adhere to any orders

4 of this Court resulting therefrom.

5

Dated this 2nd day of June, 2020.

6
MARQUIS AURBACH COFFING 7

8

By /s/ Brian R. Hardy, Esq.

9

Craig R. Anderson, Esq.

Nevada Bar No. 6882

10

Brian R. Hardy, Esq.

Nevada Bar No. 10068

11

10001 Park Run Drive

Las Vegas, Nevada 89145

12

Attorney(s) for Defendant Frank Hunewill

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Page 4 of 5

MAC:11779-164 4060589_1 6/2/2020 3:38 PM

Case 3:20-cv-00303-RFB-VCF Document 32 Filed 06/02/20 Page 5 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing LIMITED JOINDER OF

3 SHERRIFF FRANK HUNEWILL TO THE OPPOSITION FILED BY THE

4 GOVERNOR AND ATTORNEY GENERAL OF NEVADA with the Clerk of the Court

5 for the United States District Court by using the court’s CM/ECF system on the 2nd day of

6 June, 2020.

7

I further certify that all participants in the case are registered CM/ECF users

8 and that service will be accomplished by the CM/ECF system.

9

I further certify that some of the participants in the case are not registered

10 CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid,

11 or have dispatched it to a third-party commercial carrier for delivery within 3 calendar days

12 to the following non-CM/ECF participants:

13 Jason D. Guinasso

Craig A. Newby

500 Damonte Ranch Pkwy, Ste 980

Office of the Attorney General

14 Reno, NV 89521

100 N. Carson St.

jguinasso@hutchlegal.com

Carson City, NV 89701

15

Attorney for Defendant Steve Sisolak and

Aaron Ford

16

Kristen K. Waggoner

17 Ryan J. Tucker

Jeremiah Galus

18 ALLIANCE DEFENDING FREEDOM

15100 N. 90th St.

19 Scottsdale, AZ 85260

kwaggoner@adflegal.org

20 rtucker@adflegal.org

jgalus@adflegal.org

21

David A. Cortman

22 ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Rd. NE Ste. D-1100

23 Lawrenceville, GA 30043

dcortman@ADFlegal.og

24 pro hac vice fapplication forthcoming

Attorneys for Plaintiff Calvary Chapel

25 Dayton Valley

26

/s/ Michelle Monkarsh

27

an employee of Marquis Aurbach Coffing

Page 5 of 5

MAC:11779-164 4060589_1 6/2/2020 3:38 PM

 
 Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 1 of 11

1 AARON D. FORD Attorney General

2 CRAIG A. NEWBY (Bar No. 8591)

Deputy Solicitor General 3 State of Nevada

Office of the Attorney General 4 100 North Carson Street

5

Carson City, Nevada 89701-4717 (775) 684-1100 (phone)

6

(775) 684-1108 (fax) Email: CNewby@ag.nv.gov

7 Attorneys for State Defendants

8

9

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

10

11 CALVARY CHAPEL DAYTON VALLEY Case No. 3:20-cv-00303-RFB-VCF

12 vs.

Plaintiff,

13 STEVE SISOLAK, in his official capacity

14 as Governor of Nevada, et al.,

RESPONSE TO PLAINTIFFS’ SUPPLEMENT

15

Defendants.

16 Pursuant to this Court’s minute order (ECF No. 33), Defendants Steve Sisolak, in
17 his official capacity as the Governor of Nevada and Aaron D. Ford, in his official capacity
18 as Attorney General of Nevada (collectively “Defendants”) hereby submit the following
19 response to Plaintiff Calvary Chapel Dayton Valley’s (“Plaintiff” or “Calvary”) June 4, 2020
20 supplement.
21 This response is made and based upon all matters of record herein, the
22 Memorandum of Points and Authorities submitted herewith, and upon such oral
23 arguments as the court may allow at the time of hearing of this matter
24 DATED this 7th day of June, 2020.
25

26

AARON D. FORD Attorney General

27

By: /s/ Craig A. Newby

28

CRAIG A. NEWBY (Bar No. 8591) Deputy Solicitor General

Page 1 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 2 of 11

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

This Court issued the following Order following the filings of Defendants’ opposition

4 to the emergency motion for temporary restraining order and preliminary injunction:

5

If the Plaintiff is seeking alternative or modified relief beyond

6

that requested in its Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No.

7

19), IT IS ORDERED that the Plaintiff must file a supplement to the Motion by June 3, 2020.

8 ECF No. 33 (emphasis added).

9

Calvary’s “supplement” does not identify “alternative or modified relief.” Instead,

10 following an extension for a medical emergency, Calvary submitted a reply brief that

11 submits thirty-one new exhibits, including a declaration that seeks to opine on medical and

12 scientific issues. This is improper for a reply brief, much less one that seeks emergency

13 injunctive relief.

14

In any event, Calvary’s supplement does not change the neutral and generally

15 applicability of the emergency directives to similar mass gatherings. It is not the place of

16 Calvary, its counsel, or this Court, to second guess the emergency decisions empowered to

17 the State’s elected leaders during this crisis.

18

Because Calvary has not met its high burden for obtaining injunctive relief, its

19 emergency motion should be denied.

20 II. THE DIRECTIVES ARE NEUTRAL AND GENERALLY APPLICABLE

21

The United States Supreme Court upheld California’s temporary restrictions on the

22 number of attendees at religious services. See South Bay United Pentecostal Church, et al.

23 v. Newsom, et al. Case No. 19A1044, 2020 WL 2813056 at *1 (May 29, 2020), attached to

24 the Opposition as Exhibit B. When doing so, the Court noted that California’s temporary

25 restrictions “apply to comparable secular gatherings, including lectures, concerts, movie

26 showings, spectator sports, and theatrical performances, where large groups of people

27 gather in close proximity for extended periods of time. Id.

28

Page 2 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 3 of 11

1

Here, Nevada has temporary emergency restrictions on comparable secular

2 gatherings, each implemented prior to the Supreme Court’s recent decision. Public

3 attendance is prohibited for all musical performances, live entertainment, concerts,

4 competitions, sporting events, and any events with live performances. Ex. A to the Opp.

5 at § 22. In short, religious services are being treated better than “lectures, concerts, …

6 spectator sports, and theatrical performances.” “Movie showings,” the last comparable

7 gathering identified by the Supreme Court, are limited to no more than 50 people, no better

8 than religious services. Id. at § 20. Similar restrictions to the lesser of 50 people or 50%

9 occupancy exist for museums, art galleries, zoos, aquariums, trade schools, and technical

10 schools to the lesser of 50 people or 50% occupancy. Id. at §§ 30, 32. Good cause exists for

11 the distinction: mass gatherings have a higher risk of COVID-19 transmission than general

12 commerce.

13

Rather than acknowledge the similarities between the activities identified as

14 comparable by the Supreme Court, Calvary belatedly attempts to do two things in its

15 supplement that are outside the scope of what this Court requested. First, Calvary

16 attempts to argue it should be treated the same as non-restricted gaming licensees or

17 outraged protestors of George Floyd’s death. This is mistaken, as Nevada has rational

18 reasons for reopening its most highly-regulated industry and for how to address public

19 unrest.

20

Second, Calvary attempts to substitute its scientific judgment for Nevada’s Chief

21 Medical Officer, through the submission of a medical declaration Calvary could have

22 submitted when filing its request for emergency relief. The Supreme Court recognizes that

23 it is not the place of a court to substitute its policy determinations for those of the elected

24 leaders of Nevada, who are empowered to make difficult, emergency decisions regarding

25 public safety and are subject to democratic accountability if the People ultimately disagree

26 with those decisions. South Bay, 2020 WL 2813056 at *1. There is a scientific basis for

27 Nevada’s staged efforts at reopening; Calvary is not entitled to substitute its judgment for

28 Nevada’s elected leaders.

Page 3 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 4 of 11

1

For the foregoing reasons, this motion should still be denied.

2

A. Nevada Gaming Establishments, as Privileged Licensees, are Subject

3

to Heightened Regulation and Discipline, Justifying Different Treatment than Faith-Based Organizations

4

Calvary argues that casinos are being treated better than churches. Supp. at

5 2:19-20. Gaming, as the most highly-regulated business industry within Nevada, are being

6 treated differently than churches. And for good reason. The right to hold a non-restricted

7 gaming license is a privilege. NRS 463.0129(2). Nevada has “strict regulation” of, inter

8 alia, persons “related to the operation of licensed gaming establishments...” NRS

9 463.0129(1)(c). All places where gaming is conducted are to be “assisted to protect the

10 public health, safety, morals, good order and general welfare of the inhabitants of the

11 State…” NRS 463.0129(1)(e). Nevada’s legislature described the vital role that gaming

12 plays in our State’s economy and to the welfare of its citizens. NRS 463.0129(1)(a).

13

Nevada’s legislature created the Commission and the GCB. NRS 463.022, 030. The

14 Commission and the GCB are to administer the provisions of the Nevada Gaming Control

15 Act to protect the public interest consistent with Nevada policy. NRS 463.140(1). The GCB

16 has “full and absolute power” to recommend to the Commission that a finding of suitability

17 be revoked. NRS 463.1405(3). This Commission “has full and absolute power and

18 authority” to revoke a finding of suitability. NRS 463.1405(4). This “full and absolute

19 power and authority” includes “pursuing disciplinary action to limit, condition, suspend,

20 and/or revoke a license, and/or impose a monetary fine against a licensee in accordance

21 with the Gaming Control Act” for violation of Directive 021. Ex. A to the Opp. at § 35.

22

Here, to reopen, non-restricted licensees were required to submit detailed reopening

23 plans for review and approval by the Nevada Gaming Control Board. See Health and Safety

24 Policies for Resumption of Gaming Operations – Nonrestricted Licensees (May 27, 2020) at

25 2, attached hereto as Exhibit D. “Nevada Gaming Control Board Agents may be present

26 to observe some or all of these procedures.” Policy Memorandum – Procedures for

27 Reopening after Temporary Closure due to COVID-19 (Apr. 21, 2020) at 6, attached hereto

28 as Exhibit E. More importantly, the Nevada Gaming Commission has full authority to

Page 4 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 5 of 11

1 enforce the required reopening plans and related health requirements with its existing

2 enforcement personnel.1 See Directive 021 (Ex. A to the Opp.) at § 35.

3

In contrast, because religion is a fundamental right, not a privilege, its facilities are

4 not subject to heightened regulation and enforcement. There is no such corresponding

5 regulatory agency for religious-specific facilities that can be immediately repurposed

6 towards enforcing emergency health directives in this context. This is a good thing and

7 something on which the parties likely agree.

8

Instead, as described in some detail by the Lyon County Sheriff’s joinder,

9 enforcement of Directive 021 is generally left to local law enforcement, subject to their

10 prioritization of resources. As set forth by the Lyon County Sheriff’s joinder, enforcement

11 of Directive 021 is prioritized similarly to other complaints received by citizens for other

12 alleged incidents. Prioritization of limited resources by law enforcement has led to an

13 emphasis in certain Nevada jurisdictions on protests against the killing of George Floyd.

14 Choosing to reopen a highly regulated industry, that is subject to significant regulatory

15 control that allows for a rapid shutdown if a second COVID-19 outbreak arises, makes

16 sense. This policy determination warrants deference from a court, as “[o]ur Constitution

17 principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable

18 officials of the States ‘to guard and protect.’” South Bay, 2020 WL 2813056 at *1 (quoting

19 Jacobson, 197 U.S. at 38).

20

Further, Calvary speculates on the nature of gaming activity today versus what it

21 was prior to COVID-19, relative to its plan for larger church services. Supp. at 5:1–26. It

22 ignores the establishment-specific plans each has that has been reviewed and approved by

23 existing regulatory bodies. It also ignores the lack of time limitation that a religious service

24 may continue. It also ignores the difference between congregating together with active,

25

26

1 It also ignores Lyon County, instead relying on pictures of Fremont Street Experience and a downtown casino. There, the Carson Plains Casino plans on reopening

27

Saturday, June 6 at 9 a.m. See https://carsonplainscasino.net/ (last accessed June 5, 2020). In any event, regulatory authority over the pictured establishments lies with the Nevada

28

Gaming Commission and it would be inappropriate for Defendants to comment on whether or what discipline may occur premised on the pictures.

Page 5 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 6 of 11

1 shared communication, versus gaming activities, which now often involve sitting at a

2 socially-distant gaming machine.2 Here, where “officials ‘undertake [ ] to act in areas

3 fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’”

4 South Bay, 2020 WL 2813056 at *1 (quoting Marshall v. United States, 414 U.S. 417, 427

5 (1974)). “Where those broad limits are not exceeded, they should not be subject to second-

6 guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and

7 expertise to assess public health and is not accountable to the people.’” Id. (quoting Garcia

8 v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985)).

9

Under these temporary circumstances, Nevada is entitled to deference on its

10 regulated, limited reopening of non-restricted gaming establishments.

11

B. Calvary’s Policing Priorities are Misplaced and Not Subject to Court

12

Review

13

Here, Calvary takes issue with Defendants’ approach to protests arising from the

14 tragic killing of George Floyd. Supp. at 7:1–8:27. These are spontaneous, peaceful protests

15 arising from the public’s outrage at George Floyd’s killing by a police officer, as seen on

16 video. Without dispute, these events have raised serious discussions pertaining to policing

17 and race. In addition to these peaceful protests, others have attempted to co-opt these

18 peaceful protests with acts of violence. A Las Vegas Metropolitan Police officer has been

19 seriously wounded. In Reno, to disperse looting, police were required to use tear gas and

20 other non-lethal methods.

21

It is in this context that Calvary argues that Defendants’ inability to prevent

22 spontaneous protests or to force local law enforcement to arrest all those who violated

23 Directive 021 implies that Defendants are favoring protestors over church services. Supp.

24 at 9:1–11. This is ridiculous. Defendants, as elected leaders, are attempting to address

25 important community issues while also calming a volatile situation. As noted by the Lyon

26

27

2 Defendants have already addressed the difference between mass gatherings most similar to religious gatherings versus commerce, including indoor malls and restaurants,

28

which already have some distancing between groups of people already included. They will not repeat themselves here.

Page 6 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 7 of 11

1 County Sheriff, local law enforcement has the right to prioritize how it enforces laws. Here,

2 rather than potentially begetting more protest and potential violence by using police

3 officers to engage in mass enforcement of Directive 021, local law enforcement is

4 emphasizing preserving public safety. Making efforts to maintain a safe community is not

5 a restriction on the content of anyone’s expression. Further, as noted in Defendants’

6 opposition, there has been no limitation on Calvary’s ability to express its beliefs to its

7 members and through the world. Calvary is only limited on the size of any service, rather

8 than the number of services and the ability to communicate in multiple ways.

9

In short, the purported refusal to arrest protestors does not constitute a violation of

10 Calvary’s First Amendment rights.

11

C. Houses of Worship, as a Mass Gathering, Have Higher Risks

12

Belatedly, Calvary submits a declaration asserting that there is no “scientific or

13 medical reason that a religious service that follows the guidelines issued by the CDC would

14 pose a more significant risk of spreading [COVID-19] than gatherings or interactions at

15 other establishments or institutions.” Supp. at 10:6–13. Dr. Flanagan, among his other

16 activities, is a permanent Catholic deacon. See Ex. 44 to the Supp. at p. 14; see also Smith,

17 Peter Jesser, Doctor: Keep Calm and Take Practical, Prayerful Action Amid Coronavirus,

18 NATIONAL CATHOLIC REGISTER (Mar. 4, 2020), a true and correct copy of which is attached

19 hereto as Exhibit F.

20

Nevada’s Chief Medical Officer respectfully disagrees, believing that “[i]n-person

21 worship services pose specific risks for disease transmission.” Decl. of Ihsan Azzam, Ph.D,

22 M.D., M.P.H., Chief Medical Officer for Nevada (June 7, 2020) at ¶ 22, attached hereto as

23 Exhibit G hereto. As stated previously:

24

When it comes to gatherings, the risk is not just based on how

25

many people there are, but rather how closely they are gathered and how they are interacting with each other. The risk does not

26

disappear in smaller gatherings. It’s the distance and precautions that will make the difference.

27 See Social Distancing (last accessed May 27, 2020);

28 https://nvhealthresponse.nv.gov/info/event-organizers/ (emphasis added).

Page 7 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 8 of 11

1

In any event, Calvary, its counsel, and this Court are not allowed to substitute their

2 policy judgment for that of elected Nevada officials during this public health emergency.

3 South Bay, 2020 WL 2813056 at *1. Because there is a public health justification for

4 Directive 021 during this emergency, the Court should reject Calvary’s efforts to substitute

5 their own policy judgment here.

6 III. JACOBSON PROVIDES DISCRETION FOR EXERCISING EMERGENCY POWERS

7

Calvary attempts to distinguish Jacobson, without addressing any of the cases faced

8 by courts throughout the United States affirming its viability to the same issue before this

9 Court. Supp. at 10:18–12:2. Only in passing does Calvary attempt to rewrite Chief Justice

10 Roberts’ opinion in South Bay to be more to its liking, by contorting the comparison between

11 comparable secular activities for the proposition that it must “not single out rights or

12 persons for disfavored treatment.” Supp. at 11:19–12:2. Jacobson, as recognized by the

13 Supreme Court in South Bay, is the acknowledgement that power to address public health

14 emergencies lies with state elected officials, not litigants and courts, and that there is

15 additional deference to state elected officials while addressing these public health

16 emergencies. South Bay, 2020 WL 2813056 at *1.

17

Here, on a rational basis, Nevada has treated mass gatherings differently than

18 commerce, including gaming. Under such circumstances, the motion should be denied.

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

Page 8 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 9 of 11

1 IV. CONCLUSION

2

Following scientific evidence and federal guidelines, Nevada has implemented social

3 distancing to protect Nevadans from COVID-19 to mitigate the risk of exposure and spread.

4 There is a rational basis for treating religious services the same as other mass gatherings

5 and differently than commercial activities on a temporary basis.

6

Accordingly, the motion should be denied.

7

Dated: June 7th, 2020.

8

AARON D. FORD

9

Attorney General

10

By: /s/ Craig A. Newby CRAIG A. NEWBY (Bar No. 8591)

11

Deputy Solicitor General State of Nevada

12

Office of the Attorney General 555 E. Washington Avenue, Suite 3900

13

Las Vegas, NV 89101

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Page 9 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 10 of 11

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of the State of Nevada, Office of the Attorney General,

3 and that on this 7th day of June, 2020, I electronically filed the foregoing document,

4 RESPONSE TO PLAINTIFF’S SUPPLEMENT, with the Clerk of the Court by using

5 the CM/ECF system.

6

Participants in the case who are registered CM/ECF users will be served by the

7 CM/ECF system.

8

9

/s/ Kristalei Wolfe

Kristalei Wolfe

10

State of Nevada,

Office of the Attorney General

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Page 10 of 11

Case 3:20-cv-00303-RFB-VCF Document 39 Filed 06/07/20 Page 11 of 11

1

INDEX OF EXHIBITS

2

EXHIBIT

NO.

EXHIBIT DESCRIPTION

3

Health and Safety Policies for Resumption of

4

D

Gaming Operations – Nonrestricted Licensees (May 27, 2020)

5

Policy Memorandum – Procedures for Reopening

6

E

after Temporary Closure due to COVID-19 (Apr. 21, 2020)

7

Smith, Peter Jesser, Doctor: Keep Calm and

8

F

Take Practical, Prayerful Action Amid Coronavirus, NATIONAL CATHOLIC REGISTER

9

(Mar. 4, 2020)

10

G

11

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

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NUMBER OF PAGES 7 6 6 5

Page 11 of 11

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 AARON D. FORD

2 Attorney General

CRAIG A. NEWBY (Bar No. 8591)

3 Deputy Solicitor General

State of Nevada 4 Office of the Attorney General

5

100 North Carson Street Carson City, Nevada 89701-4717

6

(775) 684-1100 (phone) (775) 684-1108 (fax)

7 Email: CNewby@ag.nv.gov

8 Attorneys for State Defendants

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11 CALVARY CHAPEL DAYTON VALLEY Case No. 3:20-cv-00303-RFB-VCF

12

Plaintiff,

13 vs.

14 STEVE SISOLAK, in his official capacity as Governor of Nevada, et al.,
15 Defendants.
16

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

17

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

19

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

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

23 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 response to disease outbreaks and emergency health threats.

27

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”). Nevada

11 Department of Health and Human Services Health (DHHS)

12

8. 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

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

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

24

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 is why the CDC recommends that large gatherings be cancelled.

11

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

I declare under the penalty of perjury under the laws of the United States that the

25 foregoing is true and correct to my personal knowledge.

26

DATED June 7, 2020

27

__/s/ Ihsan Azzam_________________________________________ IHSAN AZZAM, Ph.D, M.D., M.P.H.

28

CHIEF MEDICAL OFFICER FOR THE STATE OF NEVADA

Page 5

 
 Case 3:20-cv-00303-RFB-VCF Document 43 Filed 06/11/20 Page 1 of 10

1

2

3

4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

* * *

7 CALVARY CHAPEL DAYTON VALLEY

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

8

Plaintiff(s),

ORDER

9

v.

10 STEVE SISOLAK AARON FORD
11 FRANK HUNEWILL

12

Defendant(s).

13

14

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

18 II. PROCEDURAL BACKGROUND
19

20

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 COVID-19 pandemic. Id. Plaintiff filed a motion for a temporary restraining order and preliminary
24 injunction on May 28 and May 29, 2020. ECF Nos. 9, 19. The Court denied Plaintiff’s motion to
25 26 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
III. FACTUAL BACKGROUND 4
The Court makes the following findings of fact. Calvary Chapel Dayton Valley is a 5
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 in9
person worship services. However, Calvary sincerely believes that online services and drive-in 10
services thwart the Bible’s requirement of in-person services for corporate worship, and some 11
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

On May 26, 2020, Defendant Governor Sisolak announced that Nevada would enter “Phase

15 Two” of its reopening. To that end, he issued Emergency Directive 021 on May 28, 2020
16
(hereinafter the “Emergency Directive” or “Directive”). The Emergency Directive permits several 17

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
organizations are allowed to conduct in-person services so long as no more than fifty people are 22
gathered, while respecting social distancing requirements. Id. at § 11. Section 20 similarly limits 23
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

26 the Nevada Gaming Control Board. Id. at § 35. 27

28

-2-

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

1

IV. LEGAL STANDARD

2

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

3 preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240 F.3d
4

832, 839 n.7 (9th Cir. 2001). A preliminary injunction is “an extraordinary remedy that may only 5

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
suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in 10
its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & 11
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
continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a 16
preliminary injunction by demonstrating “that serious questions going to the merits were raised 17
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).

20

V. DISCUSSION

21 The Court denies the motions because it finds that Plaintiff has not demonstrated a
22
likelihood of success on its First Amendment Free Exercise claim. The Court examines both the 23

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.

26

27

28

-3-

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

1

a. Facial Challenge

2

The Free Exercise Clause of the First Amendment provides that “Congress shall make no

3 law respecting an establishment of religion or prohibiting the free exercise thereof.” Am. Family
4

Ass’n, Inc v. City & Cty. of San Francisco, 277 F.3d 1114, 1123 (9th Cir. 2002) (citing U.S. Const. 5

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
Aye, Inc. v. Hialeah, 508 U.S. 520, 531 – 32 (1993)). 10
The Constitution principally entrusts “[t]he safety and the health of the people” to the 11
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
U. S. 417, 427 (1974). 16
The Supreme Court examined the relationship between COVID-19 related executive orders 17
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
governor’s executive order to limit the spread of COVID-19. Id. The order limited attendance at 22
places of worship to 25% of building capacity or a maximum of 100 attendees. Id. at 1. The 23
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 sports, and theatrical performances, where large groups of people gather in close proximity for
28

-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
laundromats, in which people neither congregate in large groups nor remain in close proximity for 4
extended periods.” Id. Finally, Chief Justice Roberts concluded that, “[t]he precise question of 5
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
broad.” Id. (internal citations omitted). “When those broad limits are not exceeded, they should 10
not be subject to second-guessing by an unelected federal judiciary, which lacks the background, 11
12 competence and expertise to assess public health and is not accountable to the people.” Id. (internal

13 citations omitted).

14

The Court finds the holding in South Bay applicable to this case and holds that the

15 Emergency Directive is neutral and generally applicable and does not burden Plaintiff’s First
16
Amendment right to free exercise. Consequently, the Court finds that Plaintiff has not 17

18 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
authority during a public health crisis. Calvary bases its argument on alleged differential treatment 22
between itself and other secular organizations/activities. Calvary points to several secular 23
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 50% of official fire code capacity. Calvary specifically focuses on casinos and includes photos in
28

-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 scientific or medical reason to distinguish between places of worship and other comparable
4 activities.
5

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
favorably than places of worship. During this phased reopening of Nevada by the Governor, 10
casinos are subject to substantial restrictions and limitations required by the Nevada Gaming 11
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
Reopening after Temporary Closure posted May 27, 2020; Health and Safety Policy for the 16
Resumption of Gaming Operations Nonrestricted Licensees posted May 27, 2020; Procedures for 17
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
set forth requirements regarding training of the employees, financial operations and other internal 22
operations of casinos. Id. These casinos are also subject to regular and explicit inspection of all 23
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.
27 Emergency Directive, §35. Casinos are therefore subject to heightened regulation and scrutiny
28

-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
of restrictions placed upon casinos in their comparative analysis. Thus, even if the Court were to 4
accept casinos as the nearest point of comparison for its analysis of similar activities and their 5 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
The Court also finds that other secular entities and activities similar in nature to church 10
services have been subject to similar or more restrictive limitations on their operations. The Court 11 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
latter activities are also subject to the fifty-person cap or remain banned altogether under 16
Emergency Directive. See Emergency Directive, §§ 20, 22, 27, 30, 32. Given that there are some 17 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
implicit or explicit attempt to specifically target places of worship. Lukumi, 508 U.S. at 534 22
(striking down city council ordinance that specifically targeted and forbid animal sacrifices made 23 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
the Court should refrain from engaging in. South Bay, 2020 WL 2813056, at * 1. As the Court 28
-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 merits of this claim.
4 b. As-Applied Free Exercise Challenge: Selective Enforcement
5

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
fifty people from gathering, whether inside or outside, is not being enforced against secular 10
activity. Calvary also includes photographs from casinos which appear to indicate violations of the 11
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

First, the Court is not persuaded that outdoor protest activity is similar to places of worship

15 in terms of the nature of the activity and its ability to be regulated. Outdoor protests involve
16
dynamic large interactions where state officials must also consider the public safety implications 17

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
judiciary, absent clear patterns of unconstitutional selective enforcement. 22
Moreover, the Court finds that Calvary has not provided a sufficient evidentiary basis for 23
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 worship. See Stormans, Inc v. Wiseman, 794 F.3d 1064, 1083 (9th Cir. 2015) (finding no evidence
28

-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
images of crowded casinos attached to its submission may raise a potential future issue of selective 4
enforcement, the Court must have more evidence than this to find a likelihood of success on the 5
6 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
Emergency Directive in Lyon County is the Lyon County Sheriff. Defendant Sheriff Frank 10
Hunewill has indicated through counsel that he has no intention of using limited law enforcement 11
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
merits of its selective enforcement claim. If Calvary does in fact have evidence of selective 16
enforcement against it, nothing in this order shall prohibit it from returning to the Court with that 17
18 evidence and filing a new motion for a preliminary injunction.

19 / / /

20

21

22

23

24

25

26

27

28

-9-

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

1

VI. CONCLUSION

2

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

3 Restraining Order and Emergency Motion for Preliminary Injunction (ECF Nos. 9, 19) are
4

DENIED. 5

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

12

DATED June 11, 2020.

13

14

15

__________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

-10-

 
 Case 3:20-cv-00303-RFB-VCF Document 47 Filed 06/15/20 Page 1 of 6

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4
Kristen K. Waggoner (AZ Bar 032382)* 5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street
Scottsdale, AZ 85260 8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)*
ALLIANCE DEFENDING FREEDOM 12 1000 Hurricane Shoals Rd. NE
13 Ste. D-1100 Lawrenceville, GA 30043
14 Telephone: (770) 339-0774
dcortman@adflegal.org 15
*Admitted pro hac vice 16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19
Plaintiff, 20

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

21 v.

PLAINTIFF’S EX PARTE

22 23

STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his official capacity as Attorney General of

MOTION AND MEMORANDUM IN SUPPORT FOR AN INJUNCTION PENDING APPEAL

Nevada; FRANK HUNEWILL, in his official 24 capacity as Sheriff of Lyon County,

25

Defendants.

26

27

28

Case 3:20-cv-00303-RFB-VCF Document 47 Filed 06/15/20 Page 2 of 6

1

Calvary Chapel Dayton Valley moves this Court ex parte1 under Federal

2 Rule of Appellate Procedure 8(a)(1)(C) and Federal Rule of Civil Procedure 62(d) for

3 an injunction pending appeal from the Court’s June 11, 2020, Order denying its

4 Emergency Motions for a Temporary Restraining Order and Preliminary

5 Injunction. See ECF 43. Because the parties previously briefed Calvary Chapel’s

6 motion for preliminary injunction, and the same standard applies to an injunction

7 pending appeal, Calvary Chapel requests that the Court expeditiously rule on this

8 motion without further briefing from the parties.

9

BACKGROUND AND ANALYSIS

10

Calvary Chapel has noticed an appeal to the United States Court of Appeals

11 for the Ninth Circuit from this Court’s June 11, 2020, Order denying the Church’s

12 Emergency Motions for Temporary Restraining Order and Preliminary Injunction.

13 See ECF 45 (notice of appeal); ECF 43 (order); ECF 9, 19 (motions); see also 28

14 U.S.C. § 1292(a)(1) (order denying request for preliminary injunction appealable).

15

In evaluating a motion for an injunction pending appeal, the court considers

16 whether the moving party has demonstrated that (1) they are likely to succeed on

17 the merits, (2) they are likely to suffer irreparable harm in the absence of

18 preliminary relief, (3) the balance of equities tips in their favor, and (4) an

19 injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

20 7, 20 (2008); see also Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 367 (9th

21 Cir. 2016) (“The standard for evaluating an injunction pending appeal is similar to

22

23

24

25

1 Calvary Chapel has filed this motion using the CM/ECF system, which will

cause service of the motion on Defendants and therefore may not result in the 26 motion being truly being “ex parte.” But the Church has labeled its motion “ex

27 parte” because it seeks an expeditious ruling without additional briefing from either side.

28

1

Case 3:20-cv-00303-RFB-VCF Document 47 Filed 06/15/20 Page 3 of 6

1 that employed by district courts in deciding whether to grant a preliminary

2 injunction.”).

3

Although this Court denied Calvary Chapel’s request for a preliminary

4 injunction, the Church must first pursue an injunction pending appeal here before

5 it may request one on an emergency basis from the Ninth Circuit. See Fed. R. App.

6 P. 8(a)(1)(C); Ninth Circuit Rule 27-3(c)(v). The Church therefore incorporates its

7 legal arguments, reasoning, and exhibits from its prior submissions in support of

8 its request for a preliminary injunction. See ECF 8, 8-2 through 8-15, 9, 9-1, 9-2,

9 19, 19-1, 19-2, 38, 38-2 through 38-32, and 41-1 through 41-13. In sum, and without

10 waiving any specific arguments made in those filings:

11

1. Directive 021 is unconstitutional, both facially and as applied, because

12 it treats religious gatherings worse than similar secular gatherings, including

13 gatherings at casinos, restaurants, bars, taverns, gyms, fitness centers, bowling

14 alleys, and arcades. See S. Bay United Pentecostal Church v. Newsom, __ S. Ct. __,

15 No. 19A1044, 2020 WL 2813056, at *1 (May 29, 2020) (Roberts, C.J., concurring in

16 denial of application for injunctive relief); Church of the Lukumi Babalu Aye, Inc. v.

17 City of Hialeah, 508 U.S. 520, 543 (1993). Simply because the state gaming board

18 oversees casinos does not justify the Governor allowing them greater numbers of

19 people. People sitting in chairs for 45 minutes mostly listening to sermons can be

20 no worse than hundreds to thousands of people sitting near one another, mingling,

21 drinking, playing the slots, and exchanging cards or chips for hours on end.

22 Restaurants are also comparable to churches in that they host large gatherings of

23 people where individuals are in close proximity for extended periods of time, as are

24 many other secular venues the Governor subjects only to a 50% occupancy cap.

25

That the Governor and Attorney General have allowed and encouraged

26 protests where hundreds or thousands of people have gathered also proves the

27 unequal treatment. That protests may be important or are difficult to address is no

28

2

Case 3:20-cv-00303-RFB-VCF Document 47 Filed 06/15/20 Page 4 of 6

1 reason to treat religious worship as less vital. Any public-health danger is much

2 more pronounced when thousands of people gather to protest shoulder to shoulder

3 for hours at a time shouting or chanting their desired message than it is when

4 people sit calmly, socially distanced at church.

5

This Court’s order also did not appreciate that an as-applied challenge does

6 not depend on a law’s enforcement now or in the future. All that differs from a

7 facial challenge is the scope of the relief—i.e., the regulation would be enjoined

8 solely as to Calvary Chapel and not to all places of worship. Calvary Chapel’s

9 comprehensive health and safety plan—and location in a rural area in which the

10 number of COVID-19 cases is extremely low—justify this targeted relief.

11

Because the Directive is neither neutral nor generally applicable, strict

12 scrutiny applies. And the flat ban of no more than 50 people per religious service no

13 matter the size of Calvary Chapel’s building or the safety precautions it takes fails

14 strict scrutiny. If it is worth allowing casinos, bars, restaurants, theme parks, and

15 gyms to operate at 50% occupancy with social distancing, it is worth allowing

16 churches to operate at 50% occupancy with social distancing too.

17

2. The deprivation of the Church’s First Amendment freedoms

18 “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-

19 74 (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).

20

3. Finally, by establishing the likelihood that the Directive violates the

21 First Amendment, the Church has also established that both the balance of

22 equities and public interest favor injunctive relief. “It is clear that it would not be

23 equitable or in the public’s interest” to permit the State of Nevada “to violate the

24 requirements of federal law, especially when there are no adequate remedies

25 available.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)

26 (citation and brackets omitted). The state, in contrast, “suffers no harm from an

27 injunction that merely ends unconstitutional practices and/or ensures that

28

3

Case 3:20-cv-00303-RFB-VCF Document 47 Filed 06/15/20 Page 5 of 6

1 constitutional standards are implemented.” Jane Doe, #1 v. Kelly, 878 F.3d 710,

2 (9th Cir. 2017) (citation omitted).

3

CONCLUSION

4

For these reasons and those in the Church’s previous submissions, Calvary

5 Chapel Dayton Valley requests that this Court grant this motion for injunction

6 pending appeal and allow the Church to resume in-person worship services at 50%

7 capacity in compliance with social distancing and its comprehensive health and

8 safety plan.

9

Submitted this 15th day of June, 2020.

10

11

12

/s/ Ryan J. Tucker Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

13 Ryan J. Tucker (AZ Bar 034382)*

Jeremiah Galus (AZ Bar 030469)*

14 ALLIANCE DEFENDING FREEDOM

15

15100 N. 90th Street Scottsdale, AZ 85260

500 Damonte Ranch Pkwy, Suite 980 Reno, NV 89521 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

16 Telephone: (480) 444-0020
kwaggoner@adflegal.org 17 rtucker@adflegal.org

18 jgalus@adflegal.org

19 David A. Cortman (GA Bar 188810)*
ALLIANCE DEFENDING FREEDOM 20 1000 Hurricane Shoals Rd. NE

21

Ste. D-1100 Lawrenceville, GA 30043

22 Telephone: (770) 339-0774

dcortman@ADFlegal.org 23

24 *Admitted pro hac vice

25

26

27

28

4

Case 3:20-cv-00303-RFB-VCF Document 47 Filed 06/15/20 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 15, 2020, I caused the foregoing Plaintiff’s

3 Motion for An Injunction Pending Appeal to be filed with the Clerk of the Court

4 using the ECF system, which will provide electronic copies to counsel of record.

5

6

/s/ Ryan J. Tucker

Ryan J. Tucker (AZ Bar 034382)*

7

ALLIANCE DEFENDING FREEDOM

8

15100 N. 90th Street

Scottsdale, AZ 85260

9

Telephone: (480) 444-0020

rtucker@adflegal.org

10

*Admitted pro hac vice

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

Case 3:20-cv-00303-RFB-VCF Document 47-1 Filed 06/15/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

CALVARY CHAPEL DAYTON VALLEY, Plaintiff,

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

v.
STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official capacity as Sheriff of Lyon County,

[PROPOSED] ORDER

Defendants.

Upon consideration of Plaintiff’s Ex Parte Motion for An Injunction Pending Appeal:
IT IS HEREBY ORDERED that Plaintiff’s motion is GRANTED because (1) Plaintiff is likely to succeed on the merits of its claims alleging violations of the First Amendment; (2) in the absence of injunctive relief pending appeal, Plaintiff is likely to suffer irreparable harm in the form of denial of its constitutional rights; (3) the balance of equities tips in Plaintiff’s favor; and (4) an injunction pending appeal is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth the elements required for preliminary injunctive relief).
IT IS FURTHER ORDERED that an injunction pending appeal is entered against Defendants.
IT IS FURTHER ORDERED that during the pendency of the appeal, Defendants are enjoined and ordered to refrain from enforcing those portions of the

Case 3:20-cv-00303-RFB-VCF Document 47-1 Filed 06/15/20 Page 2 of 2 Governor’s orders that limit in-person church services to 50 or fewer persons, thereby allowing Plaintiff and its congregants to resume in-person worship services at 50% capacity in compliance with social distancing and its comprehensive health and safety plan. SO ORDERED.
DATED: June ___, 2020 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
2

 
 Case 3:20-cv-00303-RFB-VCF Document 51 Filed 06/17/20 Page 1 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1 Marquis Aurbach Coffing

Craig R. Anderson, Esq.

2 Nevada Bar No. 6882

Brian R. Hardy, Esq.

3 Nevada Bar No. 10068

10001 Park Run Drive

4 Las Vegas, Nevada 89145

Telephone: (702) 382-0711

5 Facsimile: (702) 382-5816

canderson@maclaw.com

6 bhardy@maclaw.com

Attorneys for Defendant Frank Hunewill

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

CALVARY CHAPEL DAYTON VALLEY,

Case Number:

10

3:20-cv-00303-LRH-CLB

Plaintiff,

11

vs.

DEFENDANT FRANK HUNEWILL’S

12

LIMITED OPPOSITION TO

STEVE SISOLAK, in his official capacity as PLAINTIFF’S EX PARTE MOTION

13 Governor of Nevada; AARON FORD, in his AND MEMORANDUM IN SUPPORT

official capacity as Attorney General of

FOR AN INJUNCTION PENDING

14 Nevada; FRANK HUNEWILL, in his official

APPEAL

capacity as Sheriff of Lyon County,

15

Defendant.

16

17

Defendant, Frank Hunewill, in his official capacity as Sheriff of Lyon County, (the

18 “Sherriff”), by and through his attorneys of record, the law firm of Marquis Aurbach

19 Coffing, hereby files his Limited Opposition to Plaintiff’s Ex Parte Motion and

20 Memorandum in Support for an Injunction Pending Appeal [ECF No. 47] filed in the above

21 referenced matter. This Opposition is made and based upon the attached Memorandum of

22 Points and Authorities, all pleadings and papers on file herein, and any oral argument

23 allowed at the time of the hearing.

24

25

26

27

Page 1 of 5

MAC:11779-164 4072206_1 6/17/2020 1:59 PM

Case 3:20-cv-00303-RFB-VCF Document 51 Filed 06/17/20 Page 2 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

On June 9, 2020, this Court conducted a hearing on Plaintiff’s motions for a

4 temporary restraining order and preliminary injunction filed on May 28 and May 29, 2020.

5 See ECF Nos. 9, 19. After considering all pleadings, papers and evidence on file and the

6 arguments of the parties, the Court issued its Order denying both motions. See ECF No. 43.

7 Plaintiff’s acknowledge the same standard applies to an injunction pending appeal as applied

8 to is prior motion and proffer no new evidence or arguments in favor of its position. See

9 ECF No. 47 at 2:5-8. Rather, Plaintiff acknowledges that its pending motion is nothing

10 more than the exhaustion of procedural hurdle on its way to the Ninth Circuit. Id. at 3:3-10.

11 Given the foregoing, there is nothing new or novel that can or should change this Court’s

12 Order.

13 II. LEGAL ARGUMENT

14

In evaluating a motion for an injunction pending appeal, the court considers whether

15 the moving party has demonstrated that (1) they are likely to succeed on the merits, (2) they

16 are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of

17 equities tips in their favor, and (4) an injunction is in the public interest. Winter v. Nat. Res.

18 Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Feldman v. Ariz. Sec’y of State’s Office,

19 843 F.3d 366, 367 (9th Cir. 2016) (“The standard for evaluating an injunction pending

20 appeal is similar to that employed by district courts in deciding whether to grant a

21 preliminary injunction.”).

22

Given this Court denied Plaintiff’s request for a preliminary injunction, it must first

23 pursue an injunction pending appeal here before it may request one on an emergency basis

24 from the Ninth Circuit. See Fed. R. App. P. 8(a)(1)(C); Ninth Circuit Rule 27-3(c)(v). As

25 such, the Sherriff incorporates his legal arguments from his prior submission in opposition

26 to Plaintiff’s request for a preliminary injunction. See ECF No. 32. In sum, and without

27 waiving any specific arguments made therein or at the hearing in this matter, the Sherriff

Page 2 of 5

MAC:11779-164 4072206_1 6/17/2020 1:59 PM

Case 3:20-cv-00303-RFB-VCF Document 51 Filed 06/17/20 Page 3 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1 acknowledges that the United States Supreme Court recently issued a determination denying

2 similarly sought injunctive relief for a church challenging California’s temporary restrictions

3 on public gatherings in light of COVID-19 wherein it stated:

4

The precise question of when restrictions on particular social activities should

be lifted during the pandemic is a dynamic and fact-intensive matter subject

5

to reasonable disagreement. Our Constitution principally entrusts “[t]he

safety and the health of the people” to the politically accountable officials of

6

the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38

(1905). When those officials “undertake[ ] to act in areas fraught with

7

medical and scientific uncertainties,” their latitude “must be especially

broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those

8

broad limits are not exceeded, they should not be subject to second-guessing

by an “unelected federal judiciary,” which lacks the background,

9

competence, and expertise to assess public health and is not accountable to

the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.

10

S. 528, 545 (1985).

11 See South Bay United Pentecostal Church, et al. v. Newsom, et al. Case No. 19A1044, 2020

12 WL 2813056 at *2 (May 29, 2020). Further, the Sheriff affirms that the “question of when

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

14 and fact-intensive matter subject to reasonable disagreement.” Id. (emphasis added). Such

15 questions of fact may not be best accomplished through general directives. Rather, it is

16 important for the officials entrusted to “to guard and protect” the “safety and health of the

17 people” to act in such areas. Id. (citing Jacobson, 197 U.S. at 38).

18

Here, each county and their elected officials should be afforded discretion and

19 latitude with respect to the enforcement of all such restrictions. Here, the Sheriff has not and

20 will not be using his limited law enforcement resources to monitor church attendance and/or

21 parishioners’ adherence to social distancing recommendations. Rather, the Sherriff is

22 optimistic that his fellow Lyon County residents will reasonably adhere to all CDC

23 guidelines and he encourages Lyon County residents to act appropriately to assure they and

24 their neighbors remain safe and healthy. Nevertheless, if there is a call, complaint or issue

25 reported, then such will be investigated and afforded the appropriate response necessary

26 under the circumstances.

27

Page 3 of 5

MAC:11779-164 4072206_1 6/17/2020 1:59 PM

Case 3:20-cv-00303-RFB-VCF Document 51 Filed 06/17/20 Page 4 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1 III. CONCLUSION

2

Given the lack of any new arguments, evidence or changes in the state of the law,

3 this Court should deny Plaintiff’s Motion so that it can exhaust this procedural hurdle on its

4 way to the Ninth Circuit.

5

Dated this 17th day of June, 2020.

6
MARQUIS AURBACH COFFING 7

8

By /s/ Brian R. Hardy, Esq.

9

Craig R. Anderson, Esq.

Nevada Bar No. 6882

10

Brian R. Hardy, Esq.

Nevada Bar No. 10068

11

10001 Park Run Drive

Las Vegas, Nevada 89145

12

Attorney(s) for Defendant Frank Hunewill

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Page 4 of 5

MAC:11779-164 4072206_1 6/17/2020 1:59 PM

Case 3:20-cv-00303-RFB-VCF Document 51 Filed 06/17/20 Page 5 of 5

MARQUIS AURBACH COFFING
10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816

1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing DEFENDANT FRANK

3 HUNEWILL’S LIMITED OPPOSITION TO PLAINTIFF’S EX PARTE MOTION

4 AND MEMORANDUM IN SUPPORT FOR AN INJUNCTION PENDING APPEAL

5 with the Clerk of the Court for the United States District Court by using the court’s CM/ECF

6 system on the 17th day of June, 2020.

7

[SI I further certify that all participants in the case are registered CM/ECF users

8 and that service will be accomplished by the CM/ECF system.

9

El I further certify that some of the participants in the case are not registered

10 CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid,

11 or have dispatched it to a third-party commercial carrier for delivery within 3 calendar days

12 to the following non-CM/ECF participants:

13 Jason D. Guinasso

Craig A. Newby

500 Damonte Ranch Pkwy, Ste 980

Office of the Attorney General

14 Reno, NV 89521

100 N. Carson St.

jguinasso@hutchlegal.com

Carson City, NV 89701

15

Attorney for Defendant Steve Sisolak and

Aaron Ford

16

Kristen K. Waggoner

17 Ryan J. Tucker

Jeremiah Galus

18 ALLIANCE DEFENDING FREEDOM

15100 N. 90th St.

19 Scottsdale, AZ 85260

kwaggoner@adflegal.org

20 rtucker@adflegal.org

jgalus@adflegal.org

21

David A. Cortman

22 ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Rd. NE Ste. D-1100

23 Lawrenceville, GA 30043

dcortman@ADFlegal.og

24 pro hac vice fapplication forthcoming

Attorneys for Plaintiff Calvary Chapel

25 Dayton Valley

26

/s/ Michelle Monkarsh

27

an employee of Marquis Aurbach Coffing

Page 5 of 5

MAC:11779-164 4072206_1 6/17/2020 1:59 PM

 
 Case 3:20-cv-00303-RFB-VCF Document 52 Filed 06/17/20 Page 1 of 6

1 AARON D. FORD Attorney General

2 CRAIG A. NEWBY (Bar No. 8591)

Deputy Solicitor General 3 State of Nevada

Office of the Attorney General 4 555 East Washington Avenue, Suite 3900

5

Las Vegas, Nevada 89101 (702) 486-3420 (phone)

6

(702) 486-3768 (fax) Email: CNewby@ag.nv.gov

7 Attorneys for State Defendants

8 UNITED STATES DISTRICT COURT
9 DISTRICT OF NEVADA
10

11 CALVARY CHAPEL DAYTON VALLEY Case No. 3:20-cv-00303-RFB-VCF

12

Plaintiff,

13 vs.

14 STEVE SISOLAK, in his official capacity as Governor of Nevada, et al.,
15 Defendants.
16

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION AND
MEMORANDUM IN SUPPORT OF AN INJUNCTION PENDING APPEAL

17

Pursuant to this Court’s minute order (ECF No. 48), Defendants Steve Sisolak, in

18 his official capacity as the Governor of Nevada and Aaron D. Ford, in his official capacity

19 as Attorney General of Nevada (collectively “Defendants”) hereby submit the following

20 opposition to Plaintiff Calvary Chapel Dayton Valley’s (“Plaintiff” or “Calvary”) June 15,

21 2020 “Motion and Memorandum in Support of an Injunction Pending Appeal” (the

22 “Motion”). ECF No. 47.

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

Page 1 of 6

Case 3:20-cv-00303-RFB-VCF Document 52 Filed 06/17/20 Page 2 of 6

1

This response is made and based upon all matters of record herein, the

2 Memorandum of Points and Authorities submitted herewith, and upon such oral

3 arguments as the court may allow at the time of hearing of this matter

4

DATED this 17th day of June, 2020.

5

AARON D. FORD

6

Attorney General

7

By: /s/ Craig A. Newby CRAIG A. NEWBY (Bar No. 8591)

8

Deputy Solicitor General State of Nevada

9

Office of the Attorney General 555 E. Washington Avenue, Suite 3900

Las Vegas, NV 89101

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Page 2 of 6

Case 3:20-cv-00303-RFB-VCF Document 52 Filed 06/17/20 Page 3 of 6

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. 3

INTRODUCTION This court previously denied Calvary’s motion for a preliminary injunction, following

4 full briefing and argument.1 ECF No. 46. Nothing set forth in this motion warrants this

5 court changing its earlier order denying injunctive relief.

6 II. STANDARD OF REVIEW

7

Ordinarily, the filing of a notice of appeal divests a district court of jurisdiction over

8 the matters being appealed. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58

9 (1982) (per curiam). Federal Rule of Civil Procedure 62(c) codifies an exception to this basic

10 principle: it allows a district court to “suspend, modify, restore, or grant an injunction on

11 terms for bond or other terms that secure the opposing party's rights” while an appeal is

12 pending. Fed. R. Civ. P. 62; Nat. Res. Def. Council, Inc. v. Sw. Marine, Inc., 242 F.3d 1163,

13 1166 (9th Cir. 2001) (recognizing that a district court “retains jurisdiction during the

14 pendency of an appeal to act to preserve the status quo”).

15

“Rule 62(c) does not restore jurisdiction to the district court to adjudicate anew the

16 merits of the case,” and the “district court's exercise of jurisdiction should not materially

17 alter the status of the case on appeal.” Mayweathers v. Newland, 258 F.3d 930, 935 (9th

18 Cir. 2001) (emphasis added). District courts consider four factors in ruling on Rule 62(c)

19 motions: “(1) whether the stay applicant has made a strong showing that he is likely to

20 succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay;

21 (3) whether issuance of the stay will substantially injure the other parties interested in the

22 proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776

23 (1987).2

24

25

1 Defendants incorporate by reference their prior briefing on the original motion.

26

2 Similarly, this court’s determination is entitled to deference by the Ninth Circuit, which reviews a district court's decision denying a request for a preliminary injunction for

27

abuse of discretion. Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.2010). “A district court abuses its discretion if in denying [such] a request ... it bases its decision on

28

an erroneous legal standard or clearly erroneous findings of fact.” Id. Thus, the Ninth Circuit's review is “limited and deferential.” Id.

Page 3 of 6

Case 3:20-cv-00303-RFB-VCF Document 52 Filed 06/17/20 Page 4 of 6

1

Here, for the reasons set forth by this court in its order denying Calvary’s motion for

2 preliminary injunction, Calvary will not be able to meet this standard for obtaining an

3 injunction pending appeal.

4 III. LEGAL ANALYSIS

5

First, Calvary has not made a showing that they are likely to succeed on the merits,

6 much less a strong showing that they are likely to succeed on the merits. As set forth in

7 the court’s order, Nevada’s emergency directives are neutral and generally applicable, such

8 that they do not burden Calvary’s First Amendment right to free exercise. ECF No. 43 at

9 8:1. Certain secular activities comparable to in-person church services are subject to more

10 stringent restrictions, such that there is not an attempt to specifically target places of

11 worship. Id. at 7:17-24. There is no evidence in this record indicating selective enforcement

12 of Nevada’s emergency directives against Calvary specifically or houses of worship more

13 generally.

14

Second, Calvary seeks to materially alter the status of the case on appeal by

15 obtaining an injunction, in contradiction to the Mayweathers standard. Calvary has the

16 right to appeal this court’s order, subject to the appropriate standard of review. However,

17 it does not have the right to alter the status quo, which remains that the Nevada emergency

18 directives are valid and enforceable during this public health emergency.

19

Third, Calvary, given it cannot demonstrate a strong likelihood of success on the

20 merits, cannot show that it has suffered irreparable harm. As noted in prior briefing,

21 Calvary is already allowed to conduct in-person church services for up to 50 people a

22 service, while continuing virtual services. Simply doubling the number of existing church

23 services would allow Calvary to conduct in-person church services for its entire

24 congregation. Particularly where these mass gathering requirements are generally

25 applicable, there is no factual basis for concluding that Calvary has or will suffer

26 irreparable harm.

27

Fourth, granting the injunction will substantially injure Nevada and its citizens

28 during this public health emergency. Here, Calvary presumes it should be treated the same

Page 4 of 6

Case 3:20-cv-00303-RFB-VCF Document 52 Filed 06/17/20 Page 5 of 6

1 as a business operating in commerce, ignoring the difference between commerce and mass

2 gatherings for purposes of COVID-19 risk. The Supreme Court and the Ninth Circuit have

3 rejected ignoring these differences. In contrast, the Governor has an obligation to protect

4 Nevadans’ health and well-being, based on the risk during a once-a-century pandemic.

5 Consistent with White House guidelines for mass gatherings, the Governor has

6 implemented directives to slowly reopen Nevada to ensure the curve stays flat and that

7 there is not a need to revert back to earlier phases that required further sacrifices from all

8 Nevadans to remain safe.

9

Under such circumstances, the public interest and the harms to Nevada weigh

10 against awarding Calvary injunctive relief.

11 IV. CONCLUSION

12

Calvary’s motion for injunction pending appeal should be summarily denied.

13

Dated: June 17th, 2020.

14

AARON D. FORD

15

Attorney General

16

By: /s/ Craig A. Newby CRAIG A. NEWBY (Bar No. 8591)

17

Deputy Solicitor General State of Nevada

18

Office of the Attorney General 555 E. Washington Avenue, Suite 3900

19

Las Vegas, NV 89101

20

21

22

23

24

25

26

27

28

Page 5 of 6

Case 3:20-cv-00303-RFB-VCF Document 52 Filed 06/17/20 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of the State of Nevada, Office of the Attorney General,

3 and that on this 17th day of June, 2020, I electronically filed the foregoing document,

4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION AND MEMORANDUM

5 IN SUPPORT OF AN INJUNCTION PENDING APPEAL, with the Clerk of the Court

6 by using the CM/ECF system.

7

Participants in the case who are registered CM/ECF users will be served by the

8 CM/ECF system.

9

10

/s/ Kristalei Wolfe

Kristalei Wolfe

11

State of Nevada,

Office of the Attorney General

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Page 6 of 6

 
 Case 3:20-cv-00303-RFB-VCF Document 53 Filed 06/18/20 Page 1 of 5

1 Jason D. Guinasso (SBN# 8478)

500 Damonte Ranch Pkwy, Suite 980 2 Reno, NV 89521

3 Telephone: (775) 853-8746 jguinasso@hutchlegal.com

4

Kristen K. Waggoner (AZ Bar 032382)* 5 Ryan J. Tucker (AZ Bar 034382)*

6

Jeremiah Galus (AZ Bar 030469)* ALLIANCE DEFENDING FREEDOM

7 15100 N. 90th Street

Scottsdale, AZ 85260 8 Telephone: (480) 444-0020

9

kwaggoner@adflegal.org rtucker@adflegal.org

10 jgalus@adflegal.org

11 David A. Cortman (GA Bar 188810)* ALLIANCE DEFENDING FREEDOM
12 1000 Hurricane Shoals Rd. NE 13 Ste. D-1100
Lawrenceville, GA 30043 14 Telephone: (770) 339-0774
15 dcortman@adflegal.org *Admitted pro hac vice
16

17

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

18 CALVARY CHAPEL DAYTON VALLEY,
19

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

Plaintiff, 20

21 v.

PLAINTIFF’S REPLY TO

22 23 24

STEVE SISOLAK, in his official capacity as Governor of Nevada; AARON FORD, in his official capacity as Attorney General of Nevada; FRANK HUNEWILL, in his official capacity as Sheriff of Lyon County,

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EX PARTE MOTION AND MEMORANDUM IN SUPPORT FOR AN INJUNCTION PENDING APPEAL

25

Defendants.

26

27

28

Case 3:20-cv-00303-RFB-VCF Document 53 Filed 06/18/20 Page 2 of 5

1

INTRODUCTION

2

Plaintiff Calvary Chapel Dayton Valley submits this reply to Defendants

3 Sisolak and Ford’s opposition, ECF No. 52, and Defendant Hunewill’s limited

4 opposition, ECF No. 51, to the Church’s Ex Parte Motion and Memorandum in

5 Support For an Injunction Pending Appeal, ECF No. 47, under Local Rule 7-2(b).

6 Now that briefing on the Church’s motion is complete, Calvary Chapel requests that

7 this Court rule swiftly on its motion without scheduling oral argument. Time is of

8 the essence: each day Nevada burdens Calvary Chapel’s First Amendment rights

9 causes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976).

10

ARGUMENT

11

Defendants Sisolak and Ford contend that this Court should deny Calvary

12 Chapel’s motion for an injunction pending appeal under Federal Rule of Civil

13 Procedure 62(d) because granting the motion would “alter the status quo” or

14 “materially alter the status of the case on appeal.” State Def.’s Opp. to Pl.’s Mot. &

15 Mem. in Supp. of an Inj. Pending Appeal 4. Yet the one case they cite addresses

16 whether a district court can modify a previously-granted, merits injunction that is

17 the subject of an existing appeal. E.g., Mayweathers v. Newland, 258 F.3d 930, 935

18 (9th Cir. 2001) (“Appellants challenge the district court's jurisdiction to grant a

19 second injunction pending an interlocutory appeal of the first.”); id. (discussing

20 Natural Res. Def. Council Inc. v. Sw. Marine Inc., 242 F.3d 1163 (9th Cir. 2001),

21 where the court granted a merits injunction, stayed its key enforcement provisions

22 for an appeal, and then lifted the stay and modified the injunction’s enforcement

23 provisions while the appeal was ongoing).

24

When it comes to the grant of an injunction on the merits that is the subject of

25 an existing appeal, it makes sense to allow modifications only to preserve the status

26 quo and to bar changes that would alter the appeal’s status. District courts could

27 otherwise moot cases after a notice of appeal was filed and deprive appellate courts

28

1

Case 3:20-cv-00303-RFB-VCF Document 53 Filed 06/18/20 Page 3 of 5

1 of a chance to rule. But those concerns are not present when a district court denies

2 a merits injunction and a party seeks only temporary relief that spans the gap

3 between a notice of appeal and an appellate-court ruling. Even if the district court

4 grants temporary relief, the denial of injunctive relief on the merits and the order

5 that is the subject of an existing appeal stay the same. So the issues in Mayweathers

6 and this case are entirely different.

7

Defendants Sisolak and Ford do not cite a single opinion in which the district

8 court denied a merits injunction and a party sought an injunction pending appeal

9 from the district court. But those rulings exist and not one of them questions the

10 court’s “jurisdiction.” State Def.’s Opp. 3 (cleaned up); e.g., S. Bay United

11 Pentecostal Church v. Newsom, No. 20-cv-865, 2020 WL 2529620, at *1 (S.D. Cal.

12 May 18, 2020) (denying an injunction pending appeal for the “same reasons stated

13 on the record at the telephonic [merits] hearing”); Andrews v. Countrywide Bank,

14 No. 15-cv-0428, 2015 WL 1599662, at *2 (W.D. Wash. Apr. 9, 2015) (denying an

15 injunction pending appeal because the case did not involve “difficult legal questions

16 [or] any novel interpretations of the law”).

17

In fact, district courts sometimes grant temporary injunctive relief even when

18 they have denied an injunction on the merits. E.g., Am. Beverage Ass’n v. City &

19 Cty. of S.F., No. 15-cv-3415, 2016 WL 9184999, at *2 (N.D. Cal. June 7, 2016)

20 (granting an injunction pending appeal because “there is at least a close question as

21 to whether Plaintiffs have raised serious questions on the merits”). They do so

22 because a case involves “difficult legal questions” or novel applications of the law.

23 Andrews, 2015 WL 1599662, at *2. And, if nothing else, Calvary Chapel has

24 established that this case involves difficult constitutional issues and new legal

25 interpretations, which alone justifies an injunction pending appeal. Id.

26

Because the rest of Defendants’ briefing simply rehashes old arguments,

27 Calvary Chapel simply notes that this Court should reject them for the reasons

28

2

Case 3:20-cv-00303-RFB-VCF Document 53 Filed 06/18/20 Page 4 of 5

1 stated in its prior briefs: the foremost being that gatherings for commercial activity

2 cannot be treated better than gatherings for religious activity.

3

CONCLUSION

4

For these reasons, Calvary Chapel merits an injunction pending appeal that

5 allows it to meet at 50% of fire-code-capacity in keeping with social distancing and

6 the Church’s comprehensive health and safety plan. But whatever this Court rules,

7 Calvary Chapel implores it to do so quickly so that the Church can take whatever

8 steps are necessary to defend its First Amendment rights. Nevada’s broad limits on

9 “religious services, together with its haven for numerous secular exceptions, cannot

10 co-exist with a society that places religious freedom in a place of honor in the Bill of

11 Rights; the First Amendment.” Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020).

12 Submitted this 18th day of June, 2020.
13

14

/s/ Ryan J. Tucker Kristen K. Waggoner (AZ Bar 032382)* Jason D. Guinasso (SBN# 8478)

15 Ryan J. Tucker (AZ Bar 034382)* Jeremiah Galus (AZ Bar 030469)*
16 ALLIANCE DEFENDING FREEDOM

500 Damonte Ranch Pkwy, Suite 980 Reno, NV 89521 Telephone: (775) 853-8746

17

15100 N. 90th Street Scottsdale, AZ 85260

jguinasso@hutchlegal.com

18 Telephone: (480) 444-0020 kwaggoner@adflegal.org
19 rtucker@adflegal.org

20 jgalus@adflegal.org

21 David A. Cortman (GA Bar 188810)* ALLIANCE DEFENDING FREEDOM
22 1000 Hurricane Shoals Rd. NE

23

Ste. D-1100 Lawrenceville, GA 30043

24 Telephone: (770) 339-0774 dcortman@ADFlegal.org
25

26 *Admitted pro hac vice

27

28

3

Case 3:20-cv-00303-RFB-VCF Document 53 Filed 06/18/20 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 18, 2020, I caused the foregoing to be filed with

3 the Clerk of the Court using the ECF system, which will provide electronic copies

4 to counsel of record.

5

/s/ Ryan J. Tucker

6

Ryan J. Tucker (AZ Bar 034382)*

7

ALLIANCE DEFENDING FREEDOM

15100 N. 90th Street

8

Scottsdale, AZ 85260

Telephone: (480) 444-0020

9

rtucker@adflegal.org

10

*Admitted pro hac vice

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

 
 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

Plaintiff(s),

9

v.

10 STEVE SISOLAK, in his official capacity as Governor of Nevada;
11 AARON FORD, in his official capacity as Attorney General of Nevada; and
12 FRANK HUNEWILL, in his official capacity as Sheriff of Lyon County,
13
Defendant(s). 14

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

15 Plaintiff Calvary Chapel Dayton Valley moves this Court to stay the effect of its June 11,
16
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 Court’s Order, but also requests that the Court reconsider its prior denial of the Motion and issue
21 an injunction. Ordinarily, “[w]hen a notice of appeal is filed, jurisdiction over the matters being
22
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 district court to stay the effect of the judgment or order pending that appeal. Fed. R. Civ. P. 62(d);
27 Mayweathers, 258 F.3d at 935.
28

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
that the circumstances justify an exercise of that discretion.” Id. at 434. In considering whether to 4
grant a stay, the Court must consider “(1) whether the stay applicant has made a strong showing 5
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
critical. Id. 10
The Court first notes that Plaintiff’s motion should actually be construed as a motion for 11
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
divests this Court of jurisdiction. See City of Los Angeles, Harbor Div. v. Santa Monica 16
Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (“As long as a district court has jurisdiction over the 17
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

However, even applying the stay analysis standard, the Court nevertheless denies

21 Plaintiff’s motion because Plaintiff has not demonstrated a strong showing of a likelihood of
22
success on the merits of its claims. As the Court determined in its June 11, 2020 Order, Plaintiff 23

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 notice1 of recent developments and makes additional

2 findings that further indicate that Plaintiff cannot demonstrate a strong showing of likelihood of 3
success on the merits. First, much of Plaintiff’s argument has focused on Defendants’ treatment of 4
casinos, which Plaintiff argues are not subject to the fifty-person cap, in an example of preferential 5
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
point, just two days ago, on June 17, 2020, the Nevada Gaming Control Board issued Notice # 10
2020-43, which, among other changes, now requires all patrons of casinos to wear face coverings 11
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 After Temporary Closure, Nevada Gaming Control Board, 15
https://gaming.nv.gov/modules/showdocument.aspx?documentid=16837 (last accessed June 18, 16
2020). This updated regulation will result in a substantial number of patrons at gaming 17
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
the Court finds that casinos are now subject to some more severe restrictions on their activities 22
than are places of worship. Moreover, the Court reiterates the point that the Court made in its prior 23
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

1 See Fed. R. Evid. 201(b); (d) (court may, at any stage of the proceeding, judicially notice facts not subject

28

to reasonable dispute if those facts are not subject to reasonable dispute and from sources whose accuracy cannot reasonably be questioned).

-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
time period and the need for the Court to exercise restraint. The Court emphasizes that the 4
Emergency Directive must be considered in light of the various measures it imposes and all the 5
6 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
COVID-19 Cases, Clark County More Than 300,( June 19, 2020, 8:22 AM) 10
https://www.reviewjournal.com/news/politics-and-government/clark-county/nevada-adds-41011
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
traditionally been left to state officials and state agencies with expertise in this area. The Plaintiff 16
asks to the Court to intercede as to one measure, yet this one measure is part of a whole scheme of 17
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
state officials) abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005). 22
Additionally, the recent update in the regulations regarding casinos also undercuts 23
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 similar restrictions were imposed on religious activities.
28

-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
demonstrated that its constitutional rights have been violated. Furthermore, as the Court already 4
discussed in its prior Order, Plaintiff has submitted no evidence of enforcement of the ordinance 5
6 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 enforcing their regulations regarding the COVID-19 pandemic, and absent a showing that doing
10 so violates a person’s rights, Defendants should be allowed to proceed unimpeded.
11

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

__________________________________

18

RICHARD F. BOULWARE, II

UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

-5-

 
 Case 3:20-cv-00303-RFB-VCF Document 56 Filed 07/02/20 Page 1 of 1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CALVARY CHAPEL DAYTON VALLEY, No. 20-16169

FILED
JUL 2 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

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

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

 
 Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 1 of 24

Cite as: 591 U. S. ____ (2020)

1

ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 19A1070
_________________
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[July 24, 2020]
The application for injunctive relief presented to JUSTICE KAGAN and by her referred to the Court is denied.
JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE KAVANAUGH join, dissenting from denial of application for injunctive relief.
The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive 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 and certain other favored facilities may admit 50% of their maximum occupancy— and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.
That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 2 of 24

2

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

ALITO, J., dissenting
I
Calvary Chapel Dayton Valley is a church located in rural Nevada. It wishes to host worship services for about 90 congregants, a figure that amounts to 50% of its fire-code capacity. In conducting these services, Calvary Chapel plans to take many precautions that go beyond anything that the State requires. In addition to asking congregants to adhere to proper social distancing protocols, it intends to cut the length of services in half. It also plans to require six feet of separation between families seated in the pews, to prohibit items from being passed among the congregation, to guide congregants to designated doorways along one-way paths, and to leave sufficient time between services so that the church can be sanitized. According to an infectious disease expert, these measures are “equal to or more extensive than those recommended by the CDC.” Electronic Court Filing in No. 3:20–CV–00303, Doc. 38–31 (D Nev., June 4, 2020), p. 6 (ECF).
Yet hosting even this type of service would violate Directive 21, Nevada Governor Steve Sisolak’s phase-two reopening plan, which limits indoor worship services to “no more than fifty persons.” ECF Doc. 38–2, §11. Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to 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 District Court and sought an injunction allowing it to conduct services, in accordance with its plan, for up to 50% of maximum occupancy. The District Court refused to grant relief, the Ninth Circuit denied Calvary Chapel’s application for an injunction pending appeal, and now this Court likewise denies relief.
I would grant an injunction pending appeal. Calvary Chapel is very likely to succeed on its claim that the di-

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 3 of 24

Cite as: 591 U. S. ____ (2020)

3

ALITO, J., dissenting
rective’s discriminatory treatment of houses of worship violates the First Amendment. In addition, unconstitutionally preventing attendance at worship services inflicts irreparable harm on Calvary Chapel and its congregants, and the State has made no effort to show that conducting services in accordance with Calvary Chapel’s plan would pose any greater risk to public health than many other activities that the directive allows, such as going to the gym. The State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.
For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency—and the opening days of the COVID–19 outbreak plainly qualify—public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules. In general, that is what has happened thus far during the COVID–19 pandemic.
But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights. Governor Sisolak issued the directive in question on May 28, more than two months after declaring a state of emergency on March 12. Now four months have passed since the original declaration. The problem is no longer one of exigency, but one of considered

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 4 of 24

4

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

ALITO, J., dissenting
yet discriminatory treatment of places of worship.
II
Calvary Chapel argues that the Governor’s directive violates both the Free Exercise Clause and the Free Speech Clause of the First Amendment, and I agree that Calvary Chapel has a very high likelihood of success on these claims.
A
Under the Free Exercise Clause, restrictions on religious exercise that are not “neutral and of general applicability” must survive strict scrutiny. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 531 (1993). “[T]he minimum requirement of neutrality is that a law not discriminate on its face,” id., at 533, and “[t]he Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 17) (quoting Church of Lukumi, 508 U. S., at 534). Here, the departure is hardly subtle. The Governor’s directive specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people.
The face of the directive provides many examples. While “houses of worship” may admit “no more than fifty persons,” ECF Doc. 38–2, §11, many favored facilities that host indoor activities may operate at 50% capacity. Privileged facilities include bowling alleys, §20, breweries, §26, fitness facilities, §28, and most notably, casinos, which have operated at 50% capacity for over a month, §35; ECF Doc. 38–3, p. 5, sometimes featuring not only gambling but live circus acts and shows.
For Las Vegas casinos, 50% capacity often means thousands of patrons, and the activities that occur in casinos frequently involve far less physical distancing and other

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 5 of 24

Cite as: 591 U. S. ____ (2020)

5

ALITO, J., dissenting
safety measures than the worship services that Calvary Chapel proposes to conduct. Patrons at a craps or blackjack table do not customarily stay six feet apart. Casinos are permitted to serve alcohol, which is well known to induce risk taking, and drinking generally requires at least the temporary removal of masks. Casinos attract patrons from all over the country. In anticipation of reopening, one casino owner gave away 2,000 one-way airline tickets to Las Vegas. ECF Doc. 38–9, p. 4. And when the Governor announced that casinos would be permitted to reopen, he invited visitors to come to the State.1 The average visitor to Las Vegas visits more than six different casinos, potentially gathering with far more than 50 persons in each one. ECF Doc. 38–6, p. 44. Visitors to Las Vegas who gamble do so for more than two hours per day on average, id., at 43, and gamblers in a casino often move from one spot to another, trying their luck at different games or at least at different slot machines.
Houses of worship can—and have—adopted rules that provide far more protection. Family groups can be given places in the pews that are more than six feet away from others. Worshippers can be required to wear masks throughout the service or for all but a very brief time. Worshippers do not customarily travel from distant spots to attend a particular church; nor do they generally hop from church to church to sample different services on any given Sunday. Few worship services last two hours. (Calvary Chapel now limits its services to 45 minutes.) And worshippers do not generally mill around the church while a service is in progress.
The idea that allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing

—————— 1 See Jones, Nevada Governor Green-Lights June 4 Reopening of Casi-
nos; Las Vegas Gets Ready, L. A. Times (May 26, 2020), www.latimes. com/travel/story/2020-05-26/nevada-governor-oks-reopening-vegas-prepares.

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 6 of 24

6

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

ALITO, J., dissenting
casinos to operate at 50% capacity is hard to swallow, and the State’s efforts to justify the discrimination are feeble. It notes that patrons at gaming tables are supposed to wear masks and that the service of food at casinos is now limited, but congregants in houses of worship are also required to wear masks, and they do not consume meals during services.
The State notes that facilities other than houses of worship, such as museums, art galleries, zoos, aquariums, trade schools, and technical schools, are also treated less favorably than casinos, but obviously that does not justify preferential treatment for casinos.
Finally, the State argues that preferential treatment for casinos is justified because the State is in a better position to enforce compliance by casinos, which are under close supervision by state officials and subject to penalties if they violate state rules. By contrast, the State notes, rules for houses of worship must be enforced by local authorities.
This argument might make some sense if enforcing the 50% capacity rule were materially harder than enforcing a flat 50-person rule. But there is no reason to think that is so, let alone that it would be compelling enough to justify differential treatment of religion. Local officials responsible for enforcing maximum occupancy limits during normal times presumably know or can easily ascertain the limit for particular churches, and the State does not claim that these officials have any trouble enforcing those limits. In many jurisdictions, buildings that host gatherings are required to post their maximum occupancy figure in a prominent location. Enforcing a 50% limit would not require local officials to do anything more than divide that figure in half, and there is no reason to think that enforcing that limit would be any harder than enforcing a 50-person maximum.
Moreover, even if the State’s special regulatory power over casinos could justify different rules for those facilities, the State would still have no explanation why facilities like

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 7 of 24

Cite as: 591 U. S. ____ (2020)

7

ALITO, J., dissenting
bowling alleys, arcades, and fitness centers are also given the benefit of the 50% rule. And while the State suggests that it strictly enforces the rules applicable to casinos, photos and videos taken in casinos after they were allowed to reopen show widespread and blatant safety violations. Patrons without masks are seen at close quarters, and the State has not brought to our attention any evidence that it has cracked down on non-complying casinos. The sharp spike in COVID–19 cases since the casinos reopened belies the State’s strict enforcement claims.
While the directive’s treatment of casinos stands out, other facilities are also given more favorable treatment than houses of worship. Take the example of bowling alleys. Some Las Vegas bowling alleys where tournaments are held can seat hundreds of spectators, and under the directive, these facilities may admit up to 50% of capacity. Not only that, the State tolerates seating arrangements at these facilities that pose far more danger than the plan Calvary Chapel proposes. An official state guidance document states that groups of up to 50 people may sit together in the grandstands of a bowling alley provided that they maintain social distancing from other groups. ECF Doc. 38–5, p. 9. Thus, while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.
In sum, the directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.
B
The directive fares no better under the Free Speech Clause. Laws that restrict speech based on the viewpoint it expresses are presumptively unconstitutional, see, e.g., Iancu v. Brunetti, 588 U. S. ___, ___–___ (2019) (slip op., at

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 8 of 24

8

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

ALITO, J., dissenting
4–5), and under our cases religion counts as a viewpoint, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995). Here, the Directive plainly discriminates on the basis of viewpoint. Compare the directive’s treatment of casino entertainment and church services. Both involve expression, but the directive favors the secular expression in casino shows over the religious expression in houses of worship.
Calvary Chapel has also brought to our attention evidence that the Governor has favored certain speakers over others. When large numbers of protesters openly violated provisions of the Directive, such as the rule against groups of more than 50 people, the Governor not only declined to enforce the directive but publicly supported and participated in a protest. Cf. Masterpiece Cakeshop, 584 U. S., at ___–___ (slip op., at 14–16). He even shared a video of protesters standing shoulder to shoulder. The State’s response to news that churches might violate the directive was quite different. The attorney general of Nevada is reported to have said, “ ‘You can’t spit . . . in the face of law and not expect law to respond.’ ”2
Public protests, of course, are themselves protected by the First Amendment, and any efforts to restrict them would be subject to judicial review. But respecting some First Amendment rights is not a shield for violating others. The State defends the Governor on the ground that the protests expressed a viewpoint on important issues, and that is undoubtedly true, but favoring one viewpoint over others is anathema to the First Amendment.

—————— 2 Application 8, and n. 6 (quoting Lochhead, Sisolak, Elected Nevada
Officials Discuss Systemic Racism, Reform, Las Vegas Review-Journal (June 5, 2020), www.reviewjournal.com/news/politics-and-government/ nevada/sisolak-elected-nevada-officials-discuss-systemic-racism-reform2045833/).

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 9 of 24

Cite as: 591 U. S. ____ (2020)

9

ALITO, J., dissenting
C
Once it is recognized that the directive’s treatment of houses of worship must satisfy strict scrutiny, it is apparent that this discriminatory treatment cannot survive. Indeed, Nevada does not even try to argue that the directive can withstand strict scrutiny.
Having allowed thousands to gather in casinos, the State cannot claim to have a compelling interest in limiting religious gatherings to 50 people—regardless of the size of the facility and the measures adopted to prevent the spread of the virus. “[A] law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of Lukumi, 508 U. S., at 547 (internal quotation marks omitted). And even if the 50-person limit served a compelling interest, the State has not shown that public safety could not be protected at least as well by measures such as those Calvary Chapel proposes to implement.
D
The State’s primary defense of the directive’s treatment of houses of worship is based on two decisions of this Court. Quoting certain language in Jacobson v. Massachusetts, 197 U. S. 11 (1905), Nevada argues 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 [invasion] of rights secured by the fundamental law.’ ” Response to Application 11 (quoting Jacobson, 197 U. S., at 31).
Even under this test, the directive’s discriminatory treatment would likely fail for the reasons already explained. And in any event, it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID–19 pandemic. Language

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 10 of 24

10

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

ALITO, J., dissenting
in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for small pox.3 It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.
The State also points to the Court’s recent refusal to issue a temporary injunction against enforcement of a California law that limited the number of persons allowed to attend church services. See South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020). I dissented from that decision, see ibid.; see also id., at ___ (KAVANAUGH, J., dissenting), but even if it is accepted, that case is different from the one now before us. In South Bay, a church relied on the fact that the California law treated churches less favorably than certain other facilities, such as factories, offices, supermarkets, restaurants, and retail stores. But the law was defended on the ground that in these facilities, unlike in houses of worship, “people neither congregate in large groups nor remain in close proximity for extended periods.” Id., at ___ (ROBERTS, C. J., concurring) (slip op., at 2). That cannot be said about the facilities favored in Nevada. In casinos and other facilities granted preferential treatment under the directive, people congregate in large groups and remain in close proximity for extended periods.

—————— 3 The Court brushed aside Jacobson’s claims that the challenged law
violated the Preamble and the spirit of the Constitution. Jacobson, 197 U. S., at 22. His claim under the Privileges or Immunities Clause of the Fourteenth Amendment was doomed by the Slaughter-House Cases, 16 Wall. 36, 76–80 (1873), and was not addressed by the Court. Finally, the Court quickly rejected his equal protection claim, Jacobson, 197 U. S., at 30, which was based on the law’s exemption for children and persons under guardianship, see Commonwealth v. Jacobson, decided with Commonwealth v. Pear, 183 Mass. 242, 248, 66 N. E. 719, 722 (1903).

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 11 of 24

Cite as: 591 U. S. ____ (2020)

11

ALITO, J., dissenting
E
An injunction pending appeal is warranted in this case. Calvary Chapel’s First Amendment claims are very likely to succeed. Indeed, it can be said that its “legal rights . . . are indisputably clear,” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted), and the equities also favor Calvary Chapel. Preventing congregants from worshipping will cause irreparable harm, and the State has made no effort to show that Calvary Chapel’s plans would create a serious public health risk.
* * *
I would issue an injunction barring the State, pending appeal, from interfering with worship services conducted at Calvary Chapel in accordance with its stated plan and the general facemask requirement. I therefore respectfully dissent.

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 12 of 24

Cite as: 591 U. S. ____ (2020)

1

GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 19A1070
_________________
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[July 24, 2020]
JUSTICE GORSUCH, dissenting from denial of application for injunctive relief.
This is a simple case. Under the Governor’s edict, a 10screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. 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.

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 13 of 24

Cite as: 591 U. S. ____ (2020)

1

KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 19A1070
_________________
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[July 24, 2020]
JUSTICE KAVANAUGH, dissenting from denial of application for injunctive relief.
I join JUSTICE ALITO’s dissent in full and respectfully add these further comments.
Under its current reopening plan, Nevada allows restaurants, bars, casinos, and gyms to grant entrance to up to 50% of their total occupancy limit—no matter how many people that may be. For example, a casino with a 500-person occupancy limit may let in up to 250 people. By contrast, places of worship may only take in a maximum of 50 people, without exception, regardless of the occupancy cap. So unlike a casino next door, a church with a 500-person occupancy limit may let in only 50 people, not 250 people. Nevada has offered no persuasive justification for that overt discrimination against places of worship. The risk of COVID–19 transmission is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed, people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services. And given the safety measures that Calvary Chapel and other places of worship are following—including social distancing, mask wearing, and certain additional voluntary measures—it is evident that people interact with others at restaurants, bars, casinos, and gyms at least as closely as they do at religious services.
In my view, Nevada’s discrimination against religious

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 14 of 24

2

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

KAVANAUGH, J., dissenting
services violates the Constitution. To be clear, a State’s closing or reopening plan may subject religious organizations to the same limits as secular organizations. And in light of the devastating COVID–19 pandemic, those limits may be very strict. But a State may not 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. As I will explain, Nevada has thus far failed to provide a sufficient justification, and its current reopening plan therefore violates the First Amendment.
In Part I, I will explain how this case fits into the Court’s broader religion jurisprudence. In Part II, I will explain why Nevada’s treatment of religious organizations is unconstitutional under the Court’s precedents.
I
Religion cases are among the most sensitive and challenging in American law. Difficulties can arise at the outset because the litigants in religion cases often disagree about how to characterize a law. They may disagree about whether a law favors religion or discriminates against religion. They may disagree about whether a law treats religion equally or treats religion differently. They may disagree about what it means for a law to be neutral toward religion.
The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another.
In my view, some of the confusion and disagreement can

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 15 of 24

Cite as: 591 U. S. ____ (2020)

3

KAVANAUGH, J., dissenting
be averted by first identifying and distinguishing four categories of laws: (1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations. As I will explain, this case involving Nevada’s reopening plan falls into the fourth category.
First are laws that expressly discriminate against religious organizations because of religion. The recent Espinoza case fell into that category. Espinoza v. Montana Dept. of Revenue, ante, p. ___. The State of Montana provided tax credits to those who contributed to private school scholarship organizations. But there was a significant catch: Families eligible for scholarship funds could use those funds only at secular private schools, not religious private schools. Cases like that are straightforward examples of religious discrimination. And as a general rule, laws that discriminate against religion are, in the Court’s words, “odious to our Constitution.” Espinoza, ante, at 22 (internal quotation marks omitted); see Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017); Good News Club v. Milford Central School, 533 U. S. 98 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Larson v. Valente, 456 U. S. 228 (1982); McDaniel v. Paty, 435 U. S. 618, 629 (1978) (Brennan, J., concurring in judgment); see also Murphy v. Collier, 587 U. S. ___ (2019) (KAVANAUGH, J., concurring in grant of application for stay); cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993).
Second are laws that expressly favor religious organizations over secular organizations. Examples include cases where a legislature affords religious organizations certain

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 16 of 24

4

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

KAVANAUGH, J., dissenting
accommodations, exemptions, or benefits that are not available to secular organizations. The legislature might, for example, grant religious organizations a property tax exemption that is not available to secular organizations. Cf. Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970). Or the legislature might authorize accommodations for certain religious individuals (but not secular individuals) that relieve them from the burdens of otherwise-applicable laws, such as the draft. See Gillette v. United States, 401 U. S. 437 (1971). Those kinds of accommodations or exemptions can sometimes trigger Establishment Clause challenges because of the apparent favoritism of religion. See generally American Legion v. American Humanist Assn., 588 U. S. ___, ___ (2019) (KAVANAUGH, J., concurring); see also Cutter v. Wilkinson, 544 U. S. 709 (2005); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 722 (1994) (Kennedy, J., concurring in judgment); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987).
Third are laws that apply to religious and secular organizations alike without making any classification on the basis of religion. For example, a city fire code may require sprinklers in all buildings that can hold more than 100 people. A law like that would cover buildings owned by religious organizations and buildings owned by secular organizations. Those kinds of laws on their face present no impermissible discrimination or favoritism.
To be sure, those kinds of laws, although not differentiating between religious and secular organizations, can still sometimes impose substantial burdens on religious exercise. If so, a religious organization may seek an exemption in court (if not also in the legislature) to the extent available under federal or state law and permissible under the Establishment Clause. See, e.g., Our Lady of Guadalupe School v. Morrissey-Berru, ante, p. ___; Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418 (2006).

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 17 of 24

Cite as: 591 U. S. ____ (2020)

5

KAVANAUGH, J., dissenting
Or a religious organization may contend that the facially neutral law was actually motivated by animus against religion and is unconstitutional on that ground. See Lukumi, 508 U. S. 520.
Fourth are laws—like Nevada’s in this case—that supply no criteria for government benefits or action, but rather divvy up organizations into a favored or exempt category and a disfavored or non-exempt category. Those laws provide benefits only to organizations in the favored or exempt category and not to organizations in the disfavored or nonexempt category.
For example, consider a zoning law that places some secular organizations (apartment buildings, small retail businesses, restaurants, banks, etc.) in a favored or exempt zoning category, and places some secular organizations (office buildings, large retail businesses, movie theaters, music venues, etc.) in a disfavored or non-exempt zoning category. Suppose that religious properties arguably could be considered similar to some of the secular properties in both categories. What, then, are the constitutional limits and requirements with respect to how the legislature may categorize religious organizations?
In those circumstances, the Court’s precedents make clear that the legislature may place religious organizations in the favored or exempt category rather than in the disfavored or non-exempt category without causing an Establishment Clause problem. See, e.g., Walz, 397 U. S., at 696 (opinion of Harlan, J.) (“[T]he critical question is whether the circumference of legislation encircles a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter”); Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 14 (1989) (plurality opinion) (expressing approval of subsidies “conferred upon a wide array of nonsectarian groups as well as religious organizations in pursuit of some legitimate secular end”); Concerned Citizens of Carderock v. Hubbard, 84

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 18 of 24

6

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

KAVANAUGH, J., dissenting
F. Supp. 2d 668 (Md. 2000) (State may place religious organizations in favored zoning category along with some secular organizations).
The converse free-exercise or equal-treatment question is whether the legislature is required to place religious organizations in the favored or exempt category rather than in the disfavored or non-exempt category. The Court’s freeexercise and equal-treatment precedents also supply an answer to that question: Unless the State provides a sufficient justification otherwise, it must place religious organizations in the favored or exempt category. See Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50 (explaining how this Court’s precedents grant “something analogous to most-favored nation status” to religious organizations).
In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), for example, the Court explained that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason.” Id., at 884 (internal quotation marks omitted; emphasis added); see also Lukumi, 508 U. S., at 537–538. Likewise, then-Judge Alito stated that the First Amendment required a police department to exempt Sunni Muslims from its nobeard policy because the police department made “exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons.” Fraternal Order of Police Newark Lodge No. 12 v. Newark, 170 F. 3d 359, 360 (CA3 1999) (emphasis added).
Put simply, under the Court’s religion precedents, when a law on its face favors or exempts some secular organizations as opposed to religious organizations, a court entertaining a constitutional challenge by the religious organizations must determine whether the State has sufficiently

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 19 of 24

Cite as: 591 U. S. ____ (2020)

7

KAVANAUGH, J., dissenting
justified the basis for the distinction. To be clear, the Court’s precedents do not require that re-
ligious organizations be treated more favorably than all secular organizations. Rather, the First Amendment requires that religious organizations be treated equally to the favored or exempt secular organizations, unless the State can sufficiently justify the differentiation.
Stated otherwise, in these kinds of cases, the Court’s religion precedents require a basic two-step inquiry. First, does the law create a favored or exempt class of organizations and, if so, do religious organizations fall outside of that class? That threshold question does not require judges to decide whether a church is more akin to a factory or more like a museum, for example. Rather, the only question at the start is whether a given law on its face favors certain organizations and, if so, whether religious organizations are part of that favored group. If the religious organizations are not, the second question is whether the government has provided a sufficient justification for the differential treatment and disfavoring of religion. Cf. Smith, 494 U. S., at 884.
In seeking to justify the differential treatment in those kinds of cases, it is not enough for the government to point out that other secular organizations or individuals are also treated unfavorably. The point “is not whether one or a few secular analogs are regulated. The question is whether a single secular analog is not regulated.” Laycock & Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 22 (2016). To that end, the government must articulate a sufficient justification for treating some secular organizations or individuals more favorably than religious organizations or individuals. See Smith, 494 U. S., at 884. That point is subtle but absolutely critical. And if that point is not fully understood, then cases of this kind will be wrongly decided.

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 20 of 24

8

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

KAVANAUGH, J., dissenting
II
I turn then to analyzing Nevada’s rules under the Court’s precedents. As JUSTICE ALITO explains in his dissent, Nevada has now had more than four months to respond to the initial COVID–19 crisis and adjust its line-drawing as circumstances change. Yet Nevada is still discriminating against religion. Nevada applies a strict 50-person attendance cap to religious worship services, but applies a looser 50% occupancy cap to secular organizations like restaurants, bars, casinos, and gyms.
Nevada has gestured at two possible justifications for that discrimination: public health and the economy. But neither argument is persuasive on this record.
First is the State’s public health rationale. Nevada undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens. But it does not have a persuasive public health reason for treating churches differently from restaurants, bars, casinos, and gyms. Calvary Chapel is happy to abide by the same 50% occupancy cap or some stricter across-the-board standard, as the State sees fit, so long as the same standard applies to those secular businesses. And the Church has committed to social distancing, mask requirements, and certain voluntary safety measures.
The State has not explained why a 50% occupancy cap is good enough for secular businesses where people congregate in large groups or remain in close proximity for extended periods—such as at restaurants, bars, casinos, and gyms—but is not good enough for places of worship. Again, it does not suffice to point out that some secular businesses, such as movie theaters, are subject to the lesser of a 50person or 50% occupancy cap. The legal question is not whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with. See Smith, 494 U. S., at 884. And Nevada has not advanced a sufficient public health rationale for

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 21 of 24

Cite as: 591 U. S. ____ (2020)

9

KAVANAUGH, J., dissenting
that decision. To reiterate, the State has substantial room to draw lines, especially in an emergency or crisis. But Nevada has not demonstrated that public health justifies taking a looser approach with restaurants, bars, casinos, and gyms and a stricter approach with places of worship.
Second is the State’s economic rationale. The State wants to jump-start business activity and preserve the economic well-being of its citizens. The State has loosened restrictions on restaurants, bars, casinos, and gyms in part because many Nevada jobs and livelihoods, as well as other connected Nevada businesses, depend on those restaurants, bars, casinos, and gyms being open and busy. It is understandable for the State to balance public health concerns against individual economic hardship. Almost every State and municipality in America is struggling with that balance. After all, if preventing transmission of COVID–19 were the sole concern, a State would presumably order almost all of its businesses to stay closed indefinitely. But the economic devastation and the economic, physical, intellectual, and psychological harm to families and individuals that would ensue (and has already ensued, to some extent) requires States to make tradeoffs that can be unpleasant to openly discuss.
With respect to those tradeoffs, however, no precedent suggests that a State may discriminate against religion simply because a religious organization does not generate the economic benefits that a restaurant, bar, casino, or gym might provide. Nevada’s rules reflect an implicit judgment that for-profit assemblies are important and religious gatherings are less so; that moneymaking is more important than faith during the pandemic. But that rationale “devalues religious reasons” for congregating “by judging them to be of lesser import than nonreligious reasons,” in violation of the Constitution. Lukumi, 508 U. S., at 537–538. The Constitution does not tolerate discrimination against religion merely because religious services do not yield a profit.

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 22 of 24

10

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

KAVANAUGH, J., dissenting
More broadly, the State insists that it is in the midst of an emergency and that it should receive deference from the courts and not be bogged down in litigation. If the courts simply enforce the constitutional prohibition against religious discrimination, however, the floodgates will not open. I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.
But COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services. There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech. This Court’s history is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserted crisis circumstances to override equal-treatment and free-speech principles. The court of history has rejected those jurisprudential mistakes and cautions us against an unduly deferential judicial approach, especially when questions of racial discrimination, religious discrimination, or free speech are at stake.
Finally, the State relies on the Court’s recent temporary injunction decision in South Bay United Pentecostal Church

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 23 of 24

Cite as: 591 U. S. ____ (2020)

11

KAVANAUGH, J., dissenting
v. Newsom, 590 U. S. ___ (2020). There, the Court considered a California limitation on crowd size at religious services. California treated religious organizations better than some secular organizations, like movie theaters, but worse than other secular organizations, such as restaurants, supermarkets, retail stores, pharmacies, hair salons, offices, factories, and the like. In my view, the State of California’s explanation, at least on that record, did not persuasively distinguish religious services from several of the favored secular organizations, particularly restaurants and supermarkets. But the Court ultimately denied the church’s request for an emergency injunction. In his concurrence, THE CHIEF JUSTICE appropriately emphasized both the high standard for obtaining injunctive relief in this Court and the ongoing and rapidly changing public health emergency. THE CHIEF JUSTICE also noted that the favored secular activities did not involve people who “congregate in large groups” or “remain in close proximity for extended periods.” Id., at ___ (opinion concurring in denial of application for injunctive relief) (slip op., at 2).
I continue to think that the restaurants and supermarkets at issue in South Bay (and especially the restaurants) pose similar health risks to socially distanced religious services in terms of proximity to others and duration of visit. I suspect that many who have frequented all three kinds of establishments in recent weeks and months would agree. So I continue to respectfully disagree with South Bay.
But accepting South Bay as a precedent, this case is much different because it involves bars, casinos, and gyms. Nevada’s COVID–19-based health distinction between (i) bars, casinos, and gyms on the one hand, and (ii) religious services on the other hand, defies common sense. As I see it, the State cannot plausibly maintain that those large secular businesses are categorically safer than religious services, or that only religious services—and not bars, casinos,

Case 3:20-cv-00303-RFB-VCF Document 57 Filed 07/24/20 Page 24 of 24

12

CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

KAVANAUGH, J., dissenting

and gyms—entail people congregating in large groups or remaining in close proximity for extended periods of time. In any event, the State has not yet supplied a sufficient justification for its counterintuitive distinction.

*

*

*

The Constitution “protects religious observers against unequal treatment.” Trinity Lutheran, 582 U. S., at ___ (slip op., at 6) (internal quotation marks and alterations omitted). Nevada’s 50-person attendance cap on religious worship services puts praying at churches, synagogues, temples, and mosques on worse footing than eating at restaurants, drinking at bars, gambling at casinos, or biking at gyms. In other words, Nevada is discriminating against religion. And because the State has not offered a sufficient justification for doing so, that discrimination violates the First Amendment. I would grant the Church’s application for a temporary injunction. I respectfully dissent.