Court Disqualifies Proposed Nevada Reproductive Freedom Amendment From 2024 Ballot

In Washington v. Aguilar, (NV Dist. Ct., Nov. 21, 2023), a Nevada state trial court held that an Initiative Petition proposing a Reproductive Freedom Constitutional Amendment could not be placed on the 2024 ballot. The court held that the initiative proposal violates the single subject rule, contains a misleading description of the Amendment's effect and contains an unfunded mandate.  The court said in part:

This Court agrees with Plaintiffs that the Petition embraces a multitude of subjects that amount to logrolling. Subsection 1, alone, embraces the following subjects: prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage, and infertility care. Subsection 1 purportedly creates a “fundamental right to reproductive freedom,” but there is no limiting language in that section to circumscribe that right such that the section embraces a single and articulable subject....

The court found the description of the Amendment misleading because "it fails to mention that the law will bar the State from prosecuting, fining, or regulating any miscarriage or stillbirth"; it fails to mention that a medical provider can order a late term abortion to protect the pregnant person's health.; and it fails to explain that it affects equality and equal protection.

Finally, the court found that the proposed Amendment creates an unfunded mandate because a Panel or Board would need to be created to determine whether a healthcare provider acted within the standard of care.

Nevada Independent reports on the decision.

Injuring Police Chief's Reputation At His Church Was Not Free Exercise Violation

In Chesley v. City of Mesquite,(D NV, Aug. 14, 2023), a Nevada federal district court dismissed a suit brought by Joseph Chesley, Mesquite's former police chief, against the city, its former city manager and others for spreading rumors that Chesley had inappropriate sexual relations with women (including underage women), that he had embezzled money from a local business and improperly approved police overtime. Among others, the rumors were spread to members of Chesley's church.  As one of his claims, Chesley alleged that his free exercise rights were violated because the rumors and the city's inaction in stopping the rumors from spreading destroyed his reputation at his place of worship and impaired his ability to take part in worship at his church. In dismissing this claim, the court said in part:

Under circumstances such as these, where “the government action is neither regulatory, proscriptive, or compulsory” the question is whether the challenged government action “substantially burdens a religious practice and either is not justified by a substantial state interest or is not narrowly tailored to achieve that interest.” ... Chesley has not pled any substantial burdening of his Free Exercise Rights. The harms he alleges—a “destroyed” reputation at his church, and consummate discomfort worshipping there—are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”...

Nevada Governor Vetoes Medical-Aid-In-Dying Bill

On Monday, Nevada Governor Joe Lombardo vetoed (full text of veto message) S.B. 239 (full text) which would have authorized physicians and advanced practice registered nurses to prescribe medications which a patient certified to be terminally ill could self-administer to end his or her own life. The Governor said in part:

Fortunately, expansions in palliative care services and continued improvements in advanced pain management make the end-of-life provisions in SB 239 unnecessary.

KLAS News reports on the governor's action.

Presidential Proclamation Protects Sacred 500,000+ Acres in Nevada Under Antiquities Act

Yesterday, President Biden issued A Proclamation on Establishment of the Avi Kwa Ame National Monument (full text). The lengthy Proclamation sets aside 506,814 acres in southern Nevada, and items within that area, as protected under the Antiquities Act. The Proclamation reads in part:

The mountain and the surrounding arid valleys and mountain ranges are among the most sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni....

For the Tribal Nations that trace their creation to Avi Kwa Ame, the power and significance of this place reside not just in the mountain itself, but radiate across the valleys and mountain ranges of the surrounding desert landscape containing the landmarks and spiritually important locations that are linked by oral traditions and beliefs.  Tribal Nations have shared those traditions and beliefs across many generations through ... origin songs, which are central to Tribal members’ knowledge of the landscape, enabling them to navigate across the diverse terrain, find essential resources, and perform healing, funeral, and other rituals....

This entire landscape is an object of historic and scientific interest requiring protection under ... the "Antiquities Act".... As well as being an object itself, the landscape contains innumerable individual geologic features, archaeological sites, and havens for sensitive and threatened species... and it provides habitat for centuries-old Joshua trees and other objects that are independently of historic or scientific interest and require protection under the Antiquities Act.  Some of the objects are also sacred to Tribal Nations; are sensitive, rare, or vulnerable to vandalism and theft; or are dangerous to visit and, therefore, revealing their specific names and locations could pose a danger to the objects or the public.

The White House also issued a Fact Sheet on the Proclamatioin. In another Proclamation issued yesterday, the President also created the Castner Range National Monument in El Paso, Texas. E&E News reports on these and related Presidential actions.

9th Circuit Hears Oral Arguments In Tribe's Challenge To Geothermal Project

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior (video of full oral arguments). In the case, in a January 14, 2022 opinion (full text) a Nevada federal district court, among other things, rejected a claim by the Fallon Paiute-Shoshone Tribe that construction of a geothermal facility will violate their rights under the Religious Freedom Restoration Act. The district court held that plaintiffs' claim that the project destroys the Tribe's ability to exercise its religious traditions is not enough to amount to a "substantial burden" on religious exercise. Desecration of a sacred area does not coerce Tribe members to act contrary to their religion. A conservation organization is also a plaintiff in the case. (See prior related posting.)  Nevada Current reports on this week's oral arguments.

Tribe Sues Claiming Energy Project Violates Its Religious Rights

The Center for Biological Diversity announced yesterday:

The Fallon Paiute-Shoshone Tribe and Center for Biological Diversity sued the U.S. Bureau of Land Management Wednesday over its approval of the Dixie Meadows geothermal energy project, which could dry up nearby springs and harm an extremely rare amphibian, the Dixie Valley toad.

The complaint (full text) in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior, (D NV, filed 12/15/2021), includes a claim that approval of the project violates the Religious Freedom Restoration Act:

188. The Tribe and its members’ sincerely held religious beliefs involve quiet contemplation and reflection at Dixie Meadows Hot Springs, including the surrounding landscape. Tribal members’ compliance with these beliefs is a religious exercise.

189. Defendants’ approval of the Project creates government-imposed coercive pressure on the Tribal members to change or violate their religious beliefs. As detailed in this Complaint, approval of the Project damages the sacred value of the Hot Springs by altering its undisturbed state, and damages Tribal members’ ability to carry out religious practices by creating noise, light, and visual pollution.

The complaint points out:

59. On November 9, 2021—14 days before BLM approved the Project—Interior, the U.S. Department of Agriculture, the U.S. Department of Transportation, the U.S. Department of Energy, the U.S. Environmental Protection Agency, CEQ, the Advisory Council on Historic Preservation, and the Tennessee Valley Authority entered into a memorandum of understanding (“MOU”) concerning the protection of indigenous sacred sites.

60. The MOU recognizes that the spiritual and religious practices and traditions of indigenous peoples are closely tied to the natural world and specific places.

Universal Life Church Can Move Ahead With Suit Over Nevada Marriage Solemnization Law

In Universal Life Church Monastery v. Clark County Nevada, (D NV, Sept. 19, 2021), a Nevada federal district court allowed the Universal Life Church (ULC) which ordains ministers online to move ahead with its equal protection challenge to the refusal of the county to allow its ministers to solemnize marriages. A law—which was in effect only during 2016-2017—required a religious organization to be incorporated, organized or established in the state in order for it to be able to certify its ministers to perform weddings. The court rejected the Church’s free exercise claims, saying in part:

[A]n entity, organization, or person has no First Amendment free exercise right to perform civil marriages….. The Court thus finds that Plaintiff ULC does not have standing to bring a First Amendment Free Exercise claim.

Similarly it rejected ULC’s free exercise claim under the state constitution, and its due process claim, saying in part:

The plain language of ... [the Nevada Constitution] is directed to the “religious profession and worship” and makes no mention of the civil law process of solemnizing marriages. Because this language does not explicitly or implicitly create a claim, there is no standing for a religious organization to bring a free exercise claim for not being included in a civil legal process.

The court also rejected ULC’s procedural due process argument. However it refused to dismiss ULC’s equal protection claim, saying in part:

ULC presented evidence that another similarly situated non-traditional church ... was able to satisfy requirements solely because its listing on the Nevada Secretary of State website contained a checkbox showing it was registered as a religious organization. Therefore, Plaintiff asserts that Defendants implemented its approval process in a discriminatory manner.... [W]hether ULC provided the requested documents ... is a genuine dispute of material fact. The Court therefore denies summary judgment as to both parties.

Review Denied In Challenge To Nevada's Limit on Worship Services

The U.S. Supreme Court today denied a petition for certiorari before judgment in Calvary Chapel Dayton Valley v. Sisolak, (Docket No. 20-639, cert. denied 1/25/2021). (Order List.) At issue is the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order limiting indoor worship services to no more than 50 people with social distancing. The SCOTUSblog case page has links to all the pleadings in the case. The Supreme Court previously refused to enjoin enforcement of the Order pending appeal. (See prior posting.)

9th Circuit Orders Injunction Against Nevada's COVID Limits On Churches

In Calvary Chapel Dayton Valley v. Sisolak, (9th Cir., Dec. 15, 2020), the U.S. 9th Circuit Court of Appeals held that Nevada's COVID-19 restrictions on worship services violate the Free Exercise clause. The court said in part:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities.

Nevada Independent reports on the decision.

9th Circuit Hears Oral Arguments In Church's Challenge To Nevada COVID Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Calvary Chapel Dayton Valley v. Sisolak (video of full oral arguments). In the case, a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting.) Subsequently, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending the appeal that was argued this week. (See prior posting.) After that, plaintiff filed a petition asking the U.S/ Supreme Court to grant certiorari before the 9th Circuit decides the case. (See prior posting.) That petition is still pending.

Early Supreme Court Review Sought In Church's Challenge To Nevada COVID-19 Limits

In July, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending appeal to a church that was challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting). A Nevada federal district court had upheld the governor's Order. Arguments are scheduled next month in the church's appeal to the 9th Circuit. However, last week the church filed a petition (full text) asking the U.S. Supreme Court to grant review in the case before it is heard by the 9th Circuit. Calvary Chapel Dayton Valley v. Sisolak, (certiorari filed, 11/5/2020). ADF issued a press release announcing the filing.

Trump Campaign Circumvents Nevada Church Limits By Holding Evangelical Rally At Casino

As previously reported, last month the U.S. Supreme Court refused to grant an injunction pending appeal to a Nevada church challenging the differential treatment of churches and casinos under the Governor's COVID-19 orders. Now according to Microsoft News:

President Trump's campaign is holding an "Evangelicals for Trump" event on Thursday at a Las Vegas hotel and casino, amid a controversial ban in the state on gatherings of more than 50 people in houses of worship while places like casinos are subject to a less stringent 50 percent capacity limit.

The event is scheduled to take place at ... one of the many joint hotels and casinos in Las Vegas. It will feature Trump spiritual adviser Pastor Paula White ... and others. The full event title is "Evangelicals for Trump: Praise, Prayer and Patriotism."

"In a time when many Nevadans can’t go to church because of overreaching restrictions, President Trump’s campaign is bringing together evangelicals from across the community to pray, worship and discuss key issues facing Americans in the November election," Trump 2020 deputy national press secretary Ken Farnaso said in a statement.

Supreme Court, 5-4, Refuses To Enjoin Pending Appeal Nevada Limits On Worship Services

By a 5-4 vote, the U.S. Supreme Court on Friday refused to grant an injunction pending appeal to a church that is challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. A Nevada federal district court upheld the Nevada Order. ( See prior posting). The 9th Circuit denied an emergency motion for injunctive relief pending appeal. In Calvary Chapel Dayton Valley v. Sisolak, (US Supreme Court, July 24, 2020), while the majority did not file an opinion explaining their vote, the four dissenting Justices did. Justice Alito filed a dissenting opinion, joined by Justices Thomas and Kavanaugh, finding free speech and free exercise violations, saying in part:

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.

Justice Gorsuch filed a brief dissent, saying in part:

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.

Justice Kavanaugh also filed a separate dissent, laying out a broad framework for approaching religion cases. He says in part:

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 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.

Court Upholds Nevada COVID-19 Restrictions On Worship Services

In Calvary Chapel Dayton Valley v. Sisolak, (D NV, June 11, 2020), a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing.  Citing the U.S. Supreme Court's recent South Bay decision, the court said in part:

Given that there are some secular activities comparable to in-person church services that are subject to more lenient restrictions, and yet other activities arguably comparable to in-person church services that are subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an implicit or explicit attempt to specifically target places of worship.... Additionally, whether a church is more like a casino or more like a concert or lecture hall for purposes of assessing risk of COVID-19 transmission is precisely the sort of “dynamic and fact-intensive” decision-making “subject to reasonable disagreement,” that the Court should refrain from engaging in.

Courthouse News reports on the decision. [Thanks to Scott Mange for the lead.]

Church Sues Challenging Nevada's COVID-19 Limits On In-Person Services

Suit was filed last Friday in a Nevada federal district court challenging the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order that limits in person church services.  The complaint (full text) in Calvary Chapel Dayton Valley v. Sisolak, (D NV, filed 5/22/2020) alleges in part:

Instead of prioritizing religious freedom, the Governor has moved “non-essential” secular businesses and activities to the front of the line and pushed churches towards the back. Incredibly, the Governor has allowed restaurants and food establishments to resume in-person, onsite dining at 50% capacity, allowed all retail establishments to open at 50% capacity, and has thrown open the doors of nail care salons, hair salons, and barber shops—businesses that the Governor’s own orders say “promote extended periods of public interaction where the risk of [Covid-19] transmission is high.”...

Yet the Governor insists on maintaining the Church Gathering Ban, refusing to allow churches and places of worship to open their doors to ten or more people under any circumstance.

ADF issued a press release announcing the filing of the lawsuit.

9th Circuit Dismisses Suit After Prison Recognizes Humanism As Faith Group

In Espinosa v. Dzurenda,  (9th Cir., Aug. 22, 2019), the U.S. 9th Circuit Court of Appeals dismisse as moot a challenge to a prison’s failure to recognize Humanism as a Faith Group. While the appeal was pending, the prison changed its policy and permanently recognized Humanism on an equal basis with other faith groups.  Nevada Independent reports on the decision.

Muslim Inmate Wins $25,000 Damages Against Correctional Officer

In an unusual success for a prisoner case, a Nevada judge has awarded $15,000 in compensatory damages and $10,000 in punitive damages against a prison correctional officer in a suit by a Muslim inmate.  In Howard v. Foster, 2018 U.S. Dist. LEXIS 151629 (D NV, Sept. 6, 2018), the court described the correctional officer's conduct:

On the morning of August 19, 2012, somewhere between 40 and 60 Muslim inmates were holding Eid prayer services in the SDCC gymnasium....  The room was quiet enough for the individual leading the prayer to be heard by the other prayer participants.

During the prayer service, however, [correctional officer] Dicus began talking loudly enough for Howard and other prayer participants to hear. At first, Dicus asked the other officers why the inmates were in the gymnasium for prayer services. Then, Dicus began cursing and disparaging Muslims.... Dicus stated that he hoped Muslims would die....

Howard heard Diggle warn Dicus that the Muslim inmates would file grievances regarding his statements. Dicus responded, "Mother fucker grievance. . . . . I kill[ ] Muslims, you know. . . . They need to get their ass up out of here. What the hell we allowing them to be down there doing whatever they doing?"...

Dicus' outburst began very early on in the Eid prayer service and made the service unbearable to the participants. Because Dicus' comments were so disruptive, the Muslim inmates were not able to complete the  Eid prayer service, and they did not have the Eid feast that they had planned to share in after prayer.

Nevada Supreme Court Says Counsel Not Ineffective In Failing To Raise A Free Exercise Objection

In 2010, a Las Vegas, Nevada doctor, Harriston Lee Bass, was convicted of second degree murder for selling a controlled substance to a woman whose overdose led to her death. (Background).  Subsequently Bass filed a post-conviction petition for habeas corpus alleging ineffective assistance of counsel in his trial and appeal.  In Bass v. State of Nevada, (NV Sup. Ct., July 20, 2018), the Nevada Supreme Court found Bass' objections do not warrant granting of any relief.  The Court said in part:

Bass ... argues that trial and appellate counsel should have challenged evidence introduced in violation of his First Amendment right to the free exercise of religion. A State investigator testified about a closet in Bass's house set up like a shrine, with a photograph of Bass and a candle, that was searched when investigating the residence for evidence of Bass's mobile medical practice. Bass testified that the area was his wife's prayer room. Bass has failed to show that testimony implying that he and his wife had unspecified religious beliefs in any way infringed on his religious exercise, particularly where the record is silent as to the content of those beliefs.... Accordingly, Bass has failed to show that a First Amendment objection at trial or on appeal was not futile, and counsel were not ineffective in omitting them. The district court therefore did not err in denying this claim.

Court May Not Automatically Defer To Religious Objections Of One Parent In Deciding Child's Best Interest

In Arcella v. Arcella, (NV Sup. Ct., Dec. 26, 2017), the Nevada Supreme Court held that a trial court was wrong in the manner it resolved a dispute between divorced parents over the middle school their child should attend. the father wanted the child to attend a private Lutheran school, but the mother objected to the child's receiving a religious education.  The court, relying solely on the mother's religious objections, decided that the child should attend a public school.  In reversing, the state Supreme Court said in part:

When a district court decides a child's best interest, "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." ... The district court violates this principle of neutrality when it treats one parent's religious objection as dispositive when deciding between a religious school and a nonreligious school....

In sum, a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a religious school over a parent's religious objection. Indeed, the district court must order a child to attend the religious school if attendance at that school accords with the child's best interests.

Las Vegas Review Journal reports on the decision.

Court Says Humanism Is Not A Religion

In Espinosa v. Stogner, (D NV, Dec. 4, 2017), a Nevada federal district court-- in a suit brought by a prisoner-- held that Humanism does not qualify as a "religion" for purposes of the Free Exercise or Establishment Clause.  The court reasoned in part:

The Court has no basis to doubt Plaintiff’s sincerity as to his professed beliefs and of course has no opinion as to the value of those beliefs, but the allegations in the FAC confirm that despite the title Plaintiff gives his belief system (“Religious Humanism”), it is not a religion for the purposes of the religion clauses. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994) ... (“[R]eligion is the ‘belief in and reverence for a supernatural power accepted as the creator and governor of the universe.’”).... Alvarado v. City of San Jose, 94 F.3d 1223, 1229 (9th Cir. 1996) ... (“We are hard put to imagine a more unworkable definition of religion ... for purposes of the Establishment Clause or Free Exercise than that which is offered here. Few governmental activities could escape censure under a constitutional definition of ‘religion’ which includes any symbol or belief to which an individual ascribes ‘serious or almost serious’ spiritual significance. ‘If anything can be religion, then anything the government does can be construed as favoring one religion over another, and . . . the government is paralyzed. . . .’ While the First Amendment must be held to protect unfamiliar and idiosyncratic as well as commonly recognized religions, it loses its sense and thus its ability to protect when carried to the extreme proposed by the plaintiffs.”).