SCOTUS: Roberts joins liberals again to deny religious protection from discriminatory coronavirus lockdown
Gorsuch Dissent: “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.”
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Last night, Supreme Court Chief Justice John Roberts joined the four liberal justices to deny injunctive relief to a church in Nevada which claimed that lockdown rules discriminated against religious groups, allowing much more lenient reopening for secular businesses such as casinos.
This case was similar to the case from California, which we wrote about in late May, SCOTUS: Roberts Joins Liberals To Reject Injunction in California Religious Discrimination Lockdown:
The Supreme Court has handed petty tyrants throughout the land license to discriminate against religious groups in ordering pandemic lockdowns and restrictions. From this point forward an argument that had succeeded in many lower courts will hold no sway.
That argument ran something like this: Religious groups should not be subjected to more harsh treatment than similarly situated secular groups. So you can’t ban drive-up church services if you don’t ban drive-up secular services such as fast food restaurants and liquor stores. If a religious group practiced the same ‘social distancing’ and other safety practices as others, then the First Amendment prevented states and cities from treating religious groups differently.
In the California case, the Court denied an injunction in an Order without opinion, with the four conservative justices (Alito, Thomas, Gorsuch, Kavanaugh) stating they would have granted the injunction. Chief Justice Roberts was part of the majority rejecting the injunction, and wrote a concurring opinion explaining his reasoning. The short version is that this is a pandemic and the courts shouldn’t second-guess politicians….
Now Roberts has done it again in a case that showed even more stark religious discrimination, Calvary Chapel Dayton Valley v. Sisolak.
The Emergency Application for Injunction provided, in part:
The Free Exercise Clause protects the exercise of religion. No constitutional provision protects the right to gamble at casinos, eat at restaurants, or frolic at indoor amusement parks. Accordingly, under this Court’s Rules 20, 22, and 23, and 28 U.S.C. 1651, Applicant Calvary Chapel Dayton Valley respectfully requests an injunction pending appellate review allowing the church to hold in-person worship services on the same terms as comparable secular assemblies in keeping with its comprehensive health and safety plan. Calvary Chapel only seeks to host about 90 people at a socially-distanced church service, while the Governor allows hundreds to thousands of people to gamble and enjoy entertainment at casinos.
In fact, Governor Sisolak’s Directive 021,1 which has now been extended through July 31, 2020,2 allows large groups to assemble in close quarters for unlimited periods at casinos, gyms, restaurants, bars, indoor amusements parks, bowling alleys, water parks, pools, arcades, and more subject only to a 50%-fire-codecapacity limit. But the directive limits gatherings at places of worship to 50 people max, no matter their facilities’ size or the precautions they take.
This image of people together was included in the Application:
This should have been an easy case. But the Court denied injunctive relief without opinion by the majority. Justice Gorsuch’s dissent succinctly described this legal outrage:
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.
Justice Alito, joined by Thomas and Kavanaugh, wrote a separate lengthy dissent:
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.
* * *
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. Indeed, Nevada does not even try to argue that the directive can withstand strict scrutiny. Having allowed thousands to gather in casinos, the State cannot claim to have a compelling interest in limiting religious gatherings to 50 people—regardless of the size of the facility and the measures adopted to prevent the spread of the virus. “[A] law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of Lukumi, 508 U. S., at 547 (internal quotation marks omitted). And even if the 50-person limit served a compelling interest, the State has not shown that public safety could not be protected at least as well by measures such as those Calvary Chapel proposes to implement.
Justice Kavanaugh filed his own separate dissent (p. 13 of this pdf.)
In my view, Nevada’s discrimination against religious services violates the Constitution. To be clear, a State’s closing or reopening plan may subject religious organizations to the same limits as secular organizations. And in light of the devastating COVID–19 pandemic, those limits may be very strict. But a State may not impose strict limits on places of worship and looser limits on restaurants, bars, casinos, and gyms, at least without sufficient justification for the differential treatment of religion. As I will explain, Nevada has thus far failed to provide a sufficient justification, and its current reopening plan therefore violates the First Amendment.
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