Over the weekend, the Supreme Court denied injunctive relief to Calvary Chapel Dayton Valley, a church located in rural Nevada. They sued Nevada Gov. Steve Sisolak said churches could not gather in groups of more than fifty people. Yet casinos and other facilities could have up to 50 percent of their capacity.
The church wanted to operate under the same rules as casinos and theaters and have a service with 90 people representing 50 percent of their capacity. They also planned to implement social distancing, cut the time of their services in half, and take other measures beyond what the state required.
Chief Justice John Roberts joined the liberal wing of the Supreme Court to deny injunctive relief. It is mind-boggling and considering the majority didn’t write an opinion explaining their actions we don’t know what their legal justification was.
Justice Samuel Alito offered a dissenting opinion that was joined by Justice Clarence Thomas and Brett Kavanaugh.
“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. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility,” he wrote.
There is no pandemic clause in the Constitution.
While there is a disagreement that these kinds of emergency orders are constitutional at all, there has been a consensus that the orders have to be equally applied.
That is not the case in Nevada.
“Yet hosting even this type of service would violate Directive 21, Nevada Governor Steve Sisolak’s phase-two reopening plan, which limits indoor worship services to ‘no more than fifty persons.’…Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship,” Alito wrote.
He points out he would give injunctive relief as Calvary Chapel would likely prevail in their claim that Nevada’s discriminatory treatment violates the First Amendment.
Alito also points out that the state has not demonstrated how attending church is riskier than going to the gym or gambling in a casino.
At the start of the COVID-19 pandemic and public health emergency, he states that blunt responses that are not specifically tailored were understandable because they needed to act quickly.
Alito points out that it has limits, “But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.”
He later points out that Sisolak’s directive does not withstand strict scrutiny under the First Amendment’s free exercise clause and does not fare better under the free speech clause because Nevada allowed large protests.
“But respecting some First Amendment rights is not a shield for violating others. The State defends the Governor on the ground that the protests expressed a viewpoint on important issues, and that is undoubtedly true, but favoring one viewpoint over others is anathema to the First Amendment,” Alito argued.
Justice Neil Gorsuch wrote his own short dissent.
“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,” he wrote.
“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,” Gorsuch added.
Indeed.
Read the full dissenting opinions: