FOR PUBLICATION
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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`DEC 15 2020
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`No. 20-16169
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`D.C. No.
`3:20-cv-00303-RFB-VCF
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`
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`OPINION
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` Plaintiff-Appellant,
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`CALVARY CHAPEL DAYTON VALLEY,
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` v.
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`STEVE SISOLAK, in his official capacity
`as Governor of Nevada; AARON FORD, in
`his official capacity as the Nevada Attorney
`General; FRANK HUNEWILL, in his
`official capacity as Sheriff of Lyon County,
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` Defendants-Appellees.
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`
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`Appeal from the United States District Court
`for the District of Nevada
`Richard F. Boulware II, District Judge, Presiding
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`Argued and Submitted December 8, 2020
`San Francisco, California
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`Before: DANNY J. BOGGS,* MILAN D. SMITH, JR., and MARK J. BENNETT,
`Circuit Judges.
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`Opinion by Judge Milan D. Smith, Jr.
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`M. SMITH, Circuit Judge:
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`Calvary Chapel Dayton Valley (Calvary Chapel) challenges Nevada
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`* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S.
`Court of Appeals for the Sixth Circuit, sitting by designation.
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`Governor Steve Sisolak’s Directive 021 (the Directive) as a violation of the Free
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`Exercise Clause of the First Amendment to the United States Constitution. The
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`district court denied the church’s request for a preliminary injunction barring
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`enforcement of the Directive against houses of worship. We reverse.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`On March 12, 2020, Nevada Governor Steve Sisolak declared a state of
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`emergency in Nevada because of the spread of COVID-19, and issued emergency
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`directives aimed at limiting the spread of the virus. The specific emergency directive
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`challenged here is Directive 021, which Governor Sisolak issued on May 28, 2020.1
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`The Directive “strongly encourage[s]” all Nevadans to stay at home “to the
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`1 Although the Directive is no longer in effect, we held in an order denying the
`State’s motion to dismiss that Calvary Chapel’s case is not moot. Governor Sisolak
`could restore the Directive’s restrictions just as easily as he replaced them, or impose
`even more severe restrictions. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
`(TOC), Inc., 528 U.S. 167, 189 (2000); see also Elim Romanian Pentecostal Church
`v. Pritzker, 962 F.3d 341, 344–45 (7th Cir. 2020). In fact, Governor Sisolak has
`issued numerous emergency directives after Directive 021. For example, Directive
`035, which is currently in effect, limits houses of worship to “the lesser of 25% of
`the listed fire code capacity or 50 persons.” In contrast, it imposes only a 25% limit
`on commercial entities such as casinos; bowling alleys, arcades, miniature golf
`facilities, amusement parks, and theme parks; restaurants, food establishments,
`breweries, distilleries, and wineries; museums, art galleries, zoos, and aquariums;
`and gyms, fitness facilities, and fitness studios. Declaration of Emergency for
`Directive 035, https://gov.nv.gov/News/Emergency_Orders/2020/2020-11-24_-
`_COVID19_Emergency_Declaration_Directive_035.
` Although
`the only
`directive before us today is the Directive, we emphasize that all subsequent
`directives are subject to the same principles outlined in this opinion, and that many
`of the issues we identify in the Directive persist in Directive 035.
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`2
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`greatest extent possible.” In general, it prohibits gatherings of more than fifty people
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`“in any indoor or outdoor area[.]” More specifically, the Directive imposes limits
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`of the lesser of 50% of fire-code capacity or 50 people in movie theaters (per screen),
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`museums, art galleries, zoos, aquariums, trade schools, and technical schools. It
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`prohibits public attendance at musical performances, live entertainment, concerts,
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`competitions, sporting events, and any events with live performances. Retail
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`businesses, bowling alleys, arcades, non-retail outdoor venues, gyms, fitness
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`facilities, restaurants, breweries, distilleries, wineries, and body-art and piercing
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`facilities must cap attendance at 50% of their fire-code capacities. The Directive
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`delegates the power to regulate casino occupancy to the Nevada Gaming Control
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`Board, which ultimately imposed an occupancy cap of 50% of fire-code capacity, in
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`addition to a wide variety of other restrictions and requirements.
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`Calvary Chapel challenges § 11 of the Directive, which imposes a fifty-person
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`cap on “indoor in-person services” at “houses of worship.” The church alleges that
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`gathering its members in one building “is central to [its] expression of [its] faith in
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`Jesus Christ,” and the Directive unconstitutionally burdens this religious expression.
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`Calvary Chapel further argues that the Directive is not neutral or generally applicable
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`because it targets, discriminates against, and shows hostility toward houses of
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`3
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`worship.2
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`The district court denied Calvary Chapel’s motion for injunctive relief. The
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`court concluded that the church did not demonstrate a likelihood of success on its
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`Free Exercise claim, relying heavily on Chief Justice Roberts’s concurrence in South
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`Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.). Like
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`the Chief Justice in South Bay, the district court found that the State treated similar
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`secular activities and entities—including lectures, museums, movie theaters, trade
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`and technical schools, nightclubs, and concerts—the same as or worse than church
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`services. Accordingly, the court concluded that the Directive was neutral and
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`generally applicable.
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`After appealing the district court’s order, Calvary Chapel filed an emergency
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`motion with our court for an injunction pending appeal. A two-judge panel of our
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`court denied the church’s motion. See Calvary Chapel Dayton Valley v. Sisolak, No.
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`20-16169, 2020 WL 4274901, at *1 (9th Cir. July 2, 2020). The church next turned
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`to the Supreme Court, filing an application seeking injunctive relief pending appeal.
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`The Supreme Court denied that application. See Calvary Chapel Dayton Valley v.
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`Sisolak, 140 S. Ct. 2603 (2020) (mem.). Calvary Chapel then filed a petition for a
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`2 Calvary Chapel included an as-applied challenge to the Directive in its First
`Amended Complaint. The district court found that Calvary Chapel did not provide
`a sufficient factual basis for this claim. Calvary Chapel did not appeal this ruling of
`the district court.
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`4
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`writ of certiorari before judgment with the Supreme Court, see Sup. Ct. R. 11, and
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`that petition remains pending while we consider the church’s merits appeal to our
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`court.
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`In this appeal, Calvary Chapel contends that § 11 of the Directive is not
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`neutral and generally applicable because it expressly treats at least six categories of
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`secular assemblies better than it treats religious services. These categories include
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`casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers,
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`movie theaters, and mass protests. Because of these facial defects, Calvary Chapel
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`seeks to apply strict scrutiny review to the Directive, and contends that the State has
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`failed to demonstrate that it has a compelling interest, or that the Directive is
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`narrowly tailored.
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`In response, the State argues that Jacobson v. Massachusetts, 197 U.S. 11
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`(1905), provides the proper framework governing a state’s authority during a public
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`health crisis. The State further argues that even if Jacobson does not apply, the
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`Directive does not violate the Free Exercise Clause because it is a neutral and
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`generally applicable law—it imposes “[s]imilar or more severe restrictions . . . to
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`comparable secular gatherings.” South Bay, 140 S. Ct. at 1613 (Roberts, C.J.,
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`concurring).
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`We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we reverse.
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`STANDARD OF REVIEW
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`5
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`We review “the district court’s decision to grant or deny a preliminary
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`injunction for abuse of discretion.” Sw. Voter Registration Educ. Project v. Shelley,
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`344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). “Within this inquiry, [this
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`court] review[s] the district court’s legal conclusions de novo and its factual findings
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`for clear error.” Ramos v. Wolf, 975 F.3d 872, 888 (9th Cir. 2020) (citing Hernandez
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`v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017)).
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`ANALYSIS
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`“The Free Exercise Clause of the First Amendment, which has been made
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`applicable
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`to
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`the
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`States
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`by
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`incorporation
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`into
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`the
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`Fourteenth
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`Amendment . . . provides that ‘Congress shall make no law respecting an
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`establishment of religion, or prohibiting the free exercise thereof[.]’” Emp’t Div.,
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`Dep’t of Human Res. v. Smith, 494 U.S. 872, 876–77 (1990) (internal citations and
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`emphasis omitted). In determining whether a law prohibits the free exercise of
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`religion, courts ask whether the law “is neutral and of general applicability.” Church
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`of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing
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`Smith, 494 U.S. at 879). If it is, then the law need only survive rational basis
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`review—even if it “has the incidental effect of burdening a particular religious
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`practice.” Id. If it is not neutral and generally applicable, the law must survive strict
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`scrutiny review. Id. at 546.
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`6
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`The Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn
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`v. Cuomo, --- S. Ct. ----, 2020 WL 6948354 (2020) (per curiam), arguably
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`represented a seismic shift in Free Exercise law, and compels the result in this case.3
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`In Roman Catholic Diocese, two houses of worship sought an injunction pending
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`their appeal in the Second Circuit from the Supreme Court, seeking relief from an
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`Executive Order issued by the Governor of New York that addressed the spread of
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`COVID-19 in the state. That order imposed “restrictions on attendance at religious
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`services in areas classified as ‘red’ or ‘orange’ zones.” Id. at *1. In red zones,
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`religious service attendance was capped at 10 people, and in orange zones, it was
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`capped at 25. Id. In both zones, however, the order provided that essential
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`businesses could “admit as many people as they wish[ed].” Id. at *2. The Court did
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`not provide an exhaustive list of businesses deemed “essential,” but did note that
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`“acupuncture facilities, camp grounds, garages, . . . plants manufacturing chemicals
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`and microelectronics[,] and all transportation facilities” were included. Id.
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`3 We respectfully join the Supreme Court in saying that members of our court “are
`not public health experts, and we should respect the judgment of those with special
`expertise and responsibility in this area. But even in a pandemic, the Constitution
`cannot be put away and forgotten. The restrictions at issue here, by effectively
`barring many from attending religious services, strike at the very heart of the First
`Amendment’s guarantee of religious liberty. Before allowing this to occur, we have
`a duty to conduct a serious examination of the need for such a drastic measure.”
`Roman Catholic Diocese, 2020 WL 6948354, at *3.
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`7
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`Moreover, in orange zones, even “non-essential businesses [could] decide for
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`themselves how many persons to admit.” Id.
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`The Court ultimately concluded that the houses of worship had shown a
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`likelihood of success on the merits. Id. at *1. The challenged executive order, the
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`Court held, “violate[d] ‘the minimum requirement of neutrality’ to religion.” Id.
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`(quoting Church of Lukumi, 508 U.S. at 533). Under the Court’s reasoning, the New
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`York order was not neutral because it “single[d] out houses of worship for especially
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`harsh treatment.” Id. For example, “a large store in Brooklyn . . . could literally
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`have hundreds of people shopping there on any given day,” whereas “a nearby
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`church or synagogue would be prohibited from allowing more than 10 or 25 people
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`inside for worship service.” Id. at *2 (internal quotations omitted). The Court held
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`that this “disparate treatment” of religion rendered the COVID-19 restrictions in the
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`order not neutral or generally applicable. Id. But see Church of Lukumi, 508 U.S.
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`at 533; Smith, 494 U.S. at 878.
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`Applying strict scrutiny review to the New York order, the Court held that
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`“[s]temming the spread of COVID-19 is unquestionably a compelling interest,” but
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`concluded the challenged order was not narrowly tailored. Roman Catholic Diocese,
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`2020 WL 6948354, at *2. The Court reasoned that “[n]ot only is there no evidence
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`that the [two houses of worship] have contributed to the spread of COVID-19[,] but
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`there were many other less restrictive rules that could be adopted to minimize the
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`8
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`risk to those attending religious services,” emphasizing that the New York
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`restrictions are “far more severe than has been shown to be required to prevent the
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`spread of the virus.” Id. For example, New York could have tied maximum
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`attendance at a religious service “to the size of the church or synagogue.” Id.
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`Because the COVID-19 restrictions in the order did not survive strict scrutiny—and
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`the houses of worship satisfied the other Winter v. Natural Resources Defense
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`Council, Inc., 555 U.S. 7 (2008), factors—the Court preliminarily enjoined the
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`“enforcement of the Governor’s severe restrictions on the [houses of worship’s]
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`religious services.” Id. at *4.
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`The Supreme Court’s decision in Roman Catholic Diocese compels us to
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`reverse the district court. Just like the New York restrictions, the Directive treats
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`numerous secular activities and entities significantly better than religious worship
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`services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other
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`similar secular entities are limited to 50% of fire-code capacity, yet houses of
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`worship are limited to fifty people regardless of their fire-code capacities. As a
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`result, the restrictions in the Directive, although not identical to New York’s, require
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`attendance limitations that create the same “disparate treatment” of religion. Id. at
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`*2. Because “disparate treatment” of religion triggers strict scrutiny review—as it
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`did in Roman Catholic Diocese—we will review the restrictions in the Directive
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`under strict scrutiny. Id.
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`9
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`The district court never reached the question of whether the Directive survives
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`strict scrutiny review because it thought that then-current law required only rational
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`basis review. Although, “[a]s a general rule,” we do “not consider an issue not
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`passed upon below,” we have discretion to decide “a purely legal” question where
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`“resolution of the issue is clear and . . . injustice might otherwise result.” Quinn v.
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`Robinson, 783 F.2d 776, 814 (9th Cir. 1986). We find it necessary to exercise our
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`discretion here, just as the Supreme Court did in Roman Catholic Diocese, when it
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`enjoined certain features of an order that had already been replaced.4
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`To survive strict scrutiny review, the Directive “must be ‘narrowly tailored’
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`to serve a ‘compelling’ state interest.” Roman Catholic Diocese, 2020 WL 6948354,
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`at *2 (quoting Church of Lukumi, 508 U.S. at 546). The Directive—although less
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`restrictive in some respects than the New York regulations reviewed in Roman
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`Catholic Diocese—is not narrowly tailored because, for example, “maximum
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`attendance at a religious service could be tied to the size of the [house of worship].”
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`Id. In other words, instead of a fifty-person cap, the Directive could have, for
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`example, imposed a limitation of 50% of fire-code capacity on houses of worship,
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`4 The Supreme Court concluded that “injunctive relief [wa]s still called for because
`the applicants remain[ed] under a constant threat that the area in question [would]
`be reclassified as red or orange . . . . If that occur[red] again, the reclassification
`[would] almost certainly bar individuals in the affected area from attending services
`before judicial relief [could] be obtained.” Roman Catholic Diocese, 2020 WL
`6948354, at *3 (internal citation omitted).
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`10
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`like the limitation it imposed on retail stores and restaurants, and like the limitation
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`the Nevada Gaming Control Board imposed on casinos. Therefore, though slowing
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`the spread of COVID-19 is a compelling interest, the Directive is not narrowly
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`tailored to serve that interest. See id.
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`For these reasons, Calvary Chapel has demonstrated a likelihood of success
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`on the merits of its Free Exercise claim. It has also established that the occupancy
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`limitations contained in the Directive—if enforced—will cause irreparable harm,
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`and that the issuance of an injunction is in the public interest. See id. at *3; Winter,
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`555 U.S. at 20. Accordingly, we reverse the district court, instruct the district court
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`to employ strict scrutiny review to its analysis of the Directive, and preliminarily
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`enjoin the State from imposing attendance limitations on in-person services in
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`houses of worship that are less favorable than 25% of the fire-code capacity. The
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`district court may modify this preliminary injunctive relief, consistent with this
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`opinion and general equitable principles. See Winter, 555 U.S. at 20. We encourage
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`the district court to act expeditiously in connection with any such modification.
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`CONCLUSION
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`For the reasons above, we reverse the district court and remand for further
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`proceedings. This order shall act as and for the mandate of this court.
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`REVERSED AND REMANDED.
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`11
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