Attorney Sees 9th Circuit Decision as Landmark for Religious Liberty

December 16, 2020 Updated: December 16, 2020

News Analysis

A Dec. 15 decision striking down a Nevada anti-CCP virus regulation shuttering churches but leaving casinos and other businesses open is a new landmark in protecting religious freedom, according to an attorney who argued the case.

The Ninth Circuit Court of Appeals decided in favor of Calvary Chapel Dayton Valley against Nevada Gov. Steve Sisolak’s edict that treated churches more harshly than other entities, including casinos.

The Appeals Court issued an injunction against Sisolak’s edict and directed the lower federal district court that had previously upheld it to revise its decision in light of the Supreme Court’s November ruling striking down New York Gov. Andrew Cuomo’s regulation that shuttered churches while leaving “essential” businesses open.

David Cortman, Alliance Defending Freedom senior counsel and vice president for litigation, told The Epoch Times on Dec. 16 that the two decisions together represent a major advance for religious freedom.

“It’s a landmark moment in that if it had gone the other way, it would have been very harmful to religious freedom and free exercise, if the court would have allowed this, ‘Well, we’re in a crisis now, so let’s ignore the Constitution or put it away,’” he said.

“As a couple of the judges in Brooklyn Diocese and the judge in the Calvary Chapel case said, even in a pandemic, the Constitution cannot be put away, as was happening across the country, so the fact is both the Supreme Court and the Ninth Circuit said, ‘No, we’re going to have to refuse to put the Constitution away, bad things happen when we do that.’

“‘We need to make sure the Constitution is being enforced, especially during difficult times because that’s the times you need it the most, so I think that was extremely important and will have positive, far-reaching consequences for people in general.’”

The Ninth Circuit judges apparently hold the same view as Cortman, because they acknowledged in their decision in favor of Calvary Chapel Dayton Valley that the New York ruling “arguably represented a seismic shift in Free Exercise law, and compels the result in this case.”

The circuit opinion added in a footnote: “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.’”

The Ninth Circuit decision comes amid a series of similar decisions in state and federal courts in which judges struck down state regulations that apply different standards to businesses and religious entities.

Also on Dec. 15, the Supreme Court ruled in favor of High Plains Harvest Church in Colorado against Colorado Gov. Jared Polis, and for a New Jersey priest against Gov. Phil Murphy.

In both cases, the regulations limited the number of worshipers allowed during any indoor religious service, much like the Cuomo regulations in New York.

On Dec. 10, the California Superior Court cited the Cuomo Supreme Court decision in knocking down Gov. Gavin Newsom’s similarly restrictive anti-CCP virus program.

“Entities permitted to engage in indoor activities—also known as ‘essential businesses’ or ‘critical infrastructure’—include big-box retail stores, grocery stores, home improvement stores, hotels, airports, train stations, bus stations, movie production houses, warehouses, factories, schools, and a lengthy list of additional businesses,” California Superior Court Judge Gregory Pulskamp said in ruling in favor of a group of Catholic dioceses represented by the Thomas More Society.

“It is important to note that almost all of the entities that are allowed to host indoor operations do not engage in activity that is constitutionally protected, whereas houses of worship do,” Pulskamp wrote.

And in a related development on Dec. 15, nine federal departments and agencies joined together in a new rule designed to ensure that religious groups are not discriminated against in consideration of federal grants and aid.

The participating federal departments and agencies include, in addition to the Department of Health and Human Services (HHS), the Department of Justice, the Department of Homeland Security, the Department of Labor, the Department of Education, the Department of Housing and Urban Development, the Department of Agriculture, the Agency for International Development, and the Department of Veterans Affairs.

The rule implements President Donald Trump’s 2018 Executive Order No. 13831 establishing a White House Faith and Opportunity Initiative.

“This rule ensures that faith-based and secular organizations are treated equally in HHS-supported programs, and it clarifies that faith-based organizations do not lose their legal protections and rights just because they participate in federal programs and activities,” HHS said in a statement announcing the rule.

The new rule was initiated prior to the Supreme Court decision in the Cuomo case, but that decision will likely make it difficult for future opponents to repeal it or dilute its impact on federal grant-making.

“With these new protections, faith-based organizations are protected from having to abandon their religious identity in order to partner with the federal government in providing services to underserved Americans,” said Mike Berry, general counsel at First Liberty Institute. “Faith-based organizations efficiently and effectively provide a plethora of services to Americans in need. They should be treated fairly and not face barriers to helping those in need simply because of their religious identity.”

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc