- Associated Press - Friday, January 22, 2021

RENO, Nev. (AP) - A rural Nevada church wants the U.S. Supreme Court to weigh in on a legal battle over the government’s authority to limit the size of religious gatherings amid the COVID-19 pandemic even after the church won an appeals court ruling that found Nevada’s restrictions unconstitutional.

Attorneys general from 19 other states recently joined the Calvary Chapel Dayton Valley near Reno in urging the Supreme Court to rule on the merits of the Nevada case to help bring uniformity to various standards courts across the country have used to balance the interests of public safety and freedom of religion.

“This petition is the court’s last opportunity to issue a merits opinion this term settling how lower courts analyze the interplay between COVID-19 emergency orders and free-exercise rights,” lawyers for the church wrote in their latest court filings on Thursday.

They want the Supreme Court to “clarify for all that the First Amendment does not allow government officials to use COVID-19 as an excuse to treat churches and their worshippers worse than secular establishments and their patrons.”

In a 5-4 decision in June, the Supreme Court refused Calvary Chapel’s request for an emergency injunction blocking enforcement of Nevada’s attendance limit at houses of worship.

But the 9th Circuit Court of Appeals in San Francisco ruled in favor of the church last month, finding it was unconstitutional for Nevada to treat casinos and other businesses more favorably than churches.

Indoor religious gatherings in Nevada most recently had been subject to a hard cap of 50 churchgoers while attendance limits at many businesses including casinos were based on a percentage of the buildings’ fire-code capacities.

Nevada Attorney General Aaron Ford argued that the facts are different in each of the cases the Supreme Court and several appellate panels have heard regarding limits on businesses, religious and other public gatherings.

He said the justices should let the federal court in Nevada sort out the details before taking the extraordinary step of wading into the case.

“This is a poor vehicle for addressing questions beyond those the Ninth Circuit already resolved in Calvary’s favor,” Ford wrote in the state’s latest court filing on Tuesday.

The church’s plea for relief from the high court is in the form of a petition for a review of the case on its merits despite the recent ruling by the 9th Circuit and ongoing litigation in district court. Such petitions are rare and their approval is even rarer, even though they require approval by only four justices.

Chief Justice John Roberts sided with the 5-4 majority turning back Calvary Chapel’s request for the injunction last summer before the death of Justice Ruth Bader Ginsburg, of the court’s liberal wing.

Since then, the vacancy on the bench was filled by Justice Amy Coney Barrett, who seems likely to align herself with the four conservative justices who sided with the church in July.

“There is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel,” Justice Neil Gorsuch wrote then in one of three strongly worded dissents.

The 9th Circuit ruling sent the case back to the district court to determine how to proceed but in the meantime prevented the state from enforcing any church attendance limit more stringent than the current 25% of capacity limit on most businesses. Judge Richard Boulware has put the case on hold pending the Supreme Court’s ruling on the church’s petition.

Nevada imposes the 25% occupancy limit on all gathering places - including casinos, restaurants, bars, amusement and theme parks, gyms and fitness facilities and movie theaters.

But the church’s latest court filings argue that an attendance limit of 25% for houses of worship is prohibited under the First Amendment. It wants to be treated the same as essential businesses - like manufacturing facilities and professional offices, which currently have no capacity limits other than social distancing.

Ford said reconsidering the Nevada church’s plea won’t resolve the case “unless this court is prepared to presume, without record evidence, that a state can never establish proof that the public interest in saving lives permits temporary numerical limitations for attending in-person religious services.”

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