Confusion in the Time of COVID: The Supreme Court's Lack of Clarification in Balancing a Public Health Emergency and the Constitutional Right to Free Exercise.

• Author: Marsh, Lauren M.

Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020).

1. INTRODUCTION

   The case of Calvary Chapel Dayton Valley v. Sisolak demonstrates the breadth of a State's authority during a public health crisis. (1) The SAR-Co-V-2 ("COVID-19") pandemic led to the declaration of emergency orders and most states creating guidelines for the public to follow to reduce the potential spread of the virus. (2) These guidelines typically included bans on large gatherings, including gatherings in houses of worship, after research showed that large gatherings often turn into "superspreader" events. (3) This led to numerous lawsuits claiming impediments in violation of the First Amendment Free Exercise Clause of the United States Constitution. (4) The United States Supreme Court's lack of clarification of how to balance constitutional analysis with a public health emergency is a cause for confusion and concern in how States should proceed during a public health emergency.

   Part II of this Note outlines the facts and procedural background of Plaintiff Calvary Chapel Dayton Valley's ("Calvary" or "Calvary Chapel") requests for emergency injunctive relief from COVID-19 pandemic restrictions. Part III provides the legal background relevant to the Supreme Court's ruling, focusing on the development of tests for religious discrimination under the Free Exercise Clause and state authority during a public health crisis. Part IV details the Supreme Court's ruling in Calvary's case, which denied Calvary's application for emergency injunction to be able to hold church services with more than fifty congregants. Part V discusses the consequences of the expanded state authority during a public health crisis in terms of personal liberty.

2. FACTS AND HOLDING

   On May 28, 2020, Defendants, including Governor of Nevada Steve Sisolak, Attorney General of Nevada Aaron Ford, and Sheriff of Lyon County Frank Hunewill, issued and enforced "Emergency Directive 021 - Phase Two Reopening Plan" ("Emergency Directive" or "Directive") in response to the COVID-19 pandemic. (5) The Emergency Directive detailed how specific categories of businesses or social activities should proceed in the midst of the pandemic. (6) Notably, the Emergency Directive stated, "Effective 12:01am on May 29, 2020, consistent with other Directives on public gatherings, houses of worship may conduct indoor in-person services in a manner so that no more than fifty persons are gathered, and all social distancing requirements are satisfied." (7) Most other businesses and social activities were limited to fifty percent of their fire code capacity, (8) but a few were limited to the lesser of fifty percent the fire code capacity or fifty people. (9)

   Shortly thereafter, Calvary Chapel Dayton Valley filed suit against the state of Nevada. (10) Calvary Chapel is a protestant church located in Dayton, Nevada. (11) Calvary sought injunctive relief on First Amendment grounds to allow indoor, in-person church services with more than fifty people amid the COVID-19 pandemic, despite Nevada's Directive. (12)

   1. The District Court

      Calvary initially filed emergency motions for a temporary restraining order ("TRO") and a preliminary injunction on May 28, 2020 in the United States District Court of Nevada. (13) Calvary's motions focused on a First Amendment Free Exercise challenge and a selective enforcement challenge to the Directive, (14) arguing for the application of strict scrutiny because the Emergency Directive was neither generally applicable nor neutral. (15) Calvary also brought a Free Speech claim, but this argument was not given much weight in the motion or in the court's decision. (16) Further, Calvary argued the Emergency Directive failed strict scrutiny because the ban was not narrowly tailored to stopping the spread of COVID-19. (17) Finally, Calvary argued that it was entitled to injunctive relief because Calvary would suffer irreparable harm without an injunction, (18) the balance of equities favored injunction, (19) and the injunction would serve the public interest. (20)

      Nevada responded to Calvary's motion and argued for the application of rational basis scrutiny because both religious and secular activities were subject to the orders, therefore the Directive was generally applicable and neutral. (21) Nevada claimed that the businesses and activities included in the fifty-person limit were "places where 'people sit together in an enclosed space to share a communal experience,'" which includes both religious and secular gatherings. (22) Nevada additionally provided alternatives that Calvary could implement to be "consistent with the White House's Phase 2 guideline." (23) Further, Nevada asserted that the Directives should survive rational basis scrutiny because the goal of the Directive was to save lives by slowing the pandemic's infection rate, an interest that should qualify as compelling under even a heightened standard of review. (24) Nevada provided an additional analysis distinguishing this case from normal Free Exercise Clause cases because of State authority during a public health emergency, arguing that the Emergency Directive should be upheld under the additional deference granted to State authority during a public health crisis. (25)

      The District Court of Nevada denied Calvary's motion on June 11, 2020, after conducting a review of the facial First Amendment Free Exercise challenge and the as-applied Free Exercise challenge, (26) finding that Calvary was not entitled to the TRO or preliminary injunction because Calvary's claims were not likely to succeed on the merits. (27) Regarding the facial challenge, the court agreed with Nevada that Nevada had broad deference during this public health crisis. (28) The district court also determined that places of worship were not treated less favorably than similarly secular activities. (29) Regarding the as-applied challenge, the district court found the selective enforcement claim to be premature given a lack of evidence. (30)

      The District Court of Nevada did grant Calvary leave to file a new motion requesting injunctive relief, provided Calvary produced more evidence regarding the as-applied Free Exercise challenge. (31) Instead, Calvary appealed the June 11 Order and requested the District court to reconsider an injunction. (32) On June 19, 2020, the Nevada District Court again denied Calvary's motion for injunction on the same basis as the June 11 Order. (33) Additionally, the district court took "judicial notice" of recent developments that further hindered Calvary's likelihood of success on the merits, such as modifications by the Nevada Gaming Control Board making casinos subject to more severe restrictions than places of worship and Nevada's recent record-breaking increase in COVID-19 infections (34)

   2. The Ninth Circuit

      Calvary filed an emergency motion for injunctive relief pending appeal with the United States Court of Appeals for the Ninth Circuit on June 22, 2020. (35) Calvary again argued for strict scrutiny alleging that comparable secular activities were treated more leniently under the Emergency Directive. (36) Calvary also repeated its argument that the Emergency Directive must fail strict scrutiny. (37) Calvary briefly addressed Nevada's argument and the district court's finding that Nevada had greater deference during a public health emergency, but quickly dismissed this contention, relying on their argument that the distinctions between activities do not further a compelling state interest. (38)

      Nevada responded, again arguing that Calvary was not likely to succeed on the merits under rational basis review. (39) Nevada stressed the broad deference granted to state officials during public health emergencies and repeated that comparable activities were subject to the same restrictions as places of worship. (40) Additionally, Nevada provided multiple, recent cases where courts rejected similar public health emergency Free Exercise challenges. (41) The Ninth Circuit promptly denied this motion on July 2, 2020, simply citing Hilton v. Braunskill (42) and South Bay United Pentecostal Church v. Newsom (43) as support. (44)

   3. The Supreme Court

      Calvary subsequently submitted an application for injunctive relief to the U.S. Supreme Court on July 8, 2020. (45) Calvary's application contained each argument that it presented at the lower courts, (46) but placed more emphasis on the Free Speech claim, claiming "[t]he directive violates the Free Speech Clause by favoring commercial over non-commercial speech and the communication of secular perspectives over religious views." (47) Calvary also failed to emphasize Nevada's argument for broad deference granted to states during public health crises - by reserving only one page out of a twenty-eight page motion to address this argument - demonstrating Calvary's belief that the constitutional analysis should be primary. (48)

      Nevada responded by first arguing that the State is due additional deference during a public health crisis and describing similar public health emergency Free Exercise challenges that the courts have rejected. (49) Nevada then repeated its argument that the Directives should be judged under a rational basis review and that the Directives do not violate the First Amendment. (50)

      Calvary submitted a reply brief disputing Nevada's claim that secular activities were not comparable to houses of worship and specifying how comparable secular activities and business were treated better than houses of worship. (51) Calvary also used this reply brief to provide more analysis on the state authority during a public health emergency argument, recognizing that this analysis was primary to the lower courts decisions. (52) Calvary distinguished the facts of this case from South Bay and Jacobson v. Massachusetts, (53) emphasizing the Jacobson holding that a mandate would be unreasonable if there was "'no real or substantial relation to [the] object' of...