The Story: Despite what appears to be a blatantly unconstitutional infringement of religious liberty, five Supreme Court justices are allowing Nevada to hold churches to a stricter standard than for casinos.
The Background: Last week the Supreme Court denied a request from a Nevada church that would block enforcement of Gov. Steve Sisolak’s order that limits religious gatherings to 50 worshipers, regardless of the size of the building. Although the directive puts a 50-person cap on houses of worship, it permits casinos, gyms, bowling alleys, and some other venues to operate at 50 percent capacity regardless of their size.
In response to this disparate treatment, Calvary Chapel Dayton Valley, a church in rural Nevada, sought an injunction allowing it to return to worship services at their church building. The church has about 90 congregants, which amounts to 50 percent of their church building’s fire-code capacity. Calvary Chapel also plans to take many precautions that go beyond anything Nevada requires, such as cutting the length of their services in half and asking congregants to adhere to proper social distancing protocols. They also would require six feet of separation between families seated in the pews, prohibit items from being passed among the congregation, guide congregants to designated doorways along one-way paths, and leave sufficient time between services so that the church can be sanitized.
Yet despite taking precautions that, as one infectious disease expert noted, are “equal to or more extensive than those recommended by the CDC,” the state of Nevada said the church would be violating the governor’s phase-two reopening plan, which limits indoor worship services to “no more than fifty persons.” A variety of secular gatherings—including casinos—are allowed to meet at 50 percent of their operating capacity, even when they far exceed the 50-person limit imposed on places of worship.
The District Court, the Ninth Circuit, and the Supreme Court all denied Calvary Chapel’s application for an injunction pending appeal. This is second time in the last two months that the Supreme Court has ruled against a church seeking exemptions from statewide Covid-19 restrictions.
What It Means: When it comes to state regulations, churches (like individuals) are generally required to adhere to “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” But the state is also generally required to treat houses of worship the same as other organizations, and “[t]he Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.”
That standard of neutral treatment was not met in the case of Calvary Chapel.
As Justices Alito, Thomas, and Kavanaugh note in their dissent, the injunctive relief should have been granted since the discriminatory treatment of houses of worship violates the First Amendment—and because the discriminatory treatment of the church is so obvious they will likely win their appeal. The justices point out that the state allows casinos to host thousands of people, and that the governor not only declined to enforce the directive against protestors but publicly supported and participated in a protest himself.
Justice Gorsuch also wrote a one-paragraph dissent, which is worth quoting in full:
This is a simple case. Under the Governor’s edict, a 10-screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. 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.
The reason Justice Roberts and the four liberal justices denied the injunction remain unclear. Nevertheless, while Calvary Chapel lost on the injunction, they will likely win their case. “Once it is recognized that the directive’s treatment of houses of worship must satisfy strict scrutiny, it is apparent that this discriminatory treatment cannot survive,” Justice Alito noted. “Indeed, Nevada does not even try to argue that the directive can withstand strict scrutiny.”
The Nevada government should save themselves the embarrassment by reversing their decision treating churches fairly. As TGC Council member and ERLC president Russell Moore said, “Nevada from the start should have relied on pastors and religious leaders to be partners in combating Covid-19 as they have apparently done with casino magnates. Nevada’s insistence on treating churches differently than casinos is inexplicable and must stop.”