“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.”
– Justice Samuel A. Alito
On Friday, July 24, the Supreme Court ruled against a Nevada church that sued the state over its COVID-19 isolation regulations. Steve Sisolak, the Democrat governor, has dictated that churches can have a maximum of 50 people at mass. His emergency health order allows for casinos in the state to have up to 50% occupancy in their establishments, letting thousands gather there. Calvary Chapel Dayton Valley thought the Constitution would give them the same rights at least that casinos had. Four justices agreed, but only four, and so the churches must turn away their flock as bets are placed across town.
What Happens In Vegas
Calvary Chapel did not agree to meet state health guidelines for gatherings – they would greatly exceed them. If the church were allowed 50% occupancy like betting halls, it would require six feet of separation between families seated in the pews, prohibit items from being passed among the congregation, shuttle people on one-way paths, and sanitize the church between services, which would be halved in length. As Amy Howe of SCOTUSblog says of the church: “all that it was asking, it emphasized, was to be treated the same as everyone else.” And, those protective measures were “absent from a photo included in the church’s brief, taken at a crowded Las Vegas casino on June 4.”
No Dice. Since this was an emergency appeal to the Supreme Court, there was no published ruling – the court simply declined to intervene to protect the church. We know, however, that the vote on whether to grant the petition was 5-4, with Chief Justice Roberts joining the left bloc of Ginsburg, Breyer, Kagan, and Sotomayor. And we know because the four conservatives issued blistering dissents that excoriated Nevada for preferring slot receipts over worship rights.
Little Joe – Four the Hard Way
Justice Alito wrote the principal dissent, joined by Justices Kavanaugh and Thomas. In what must be one of the first writings from a Justice on wresting with pandemic shutdowns, Alito offers wide latitude to government. He says, for instance, that at the outset of a crisis it is understandable for a court to tolerate what he calls “blunt rules,” because “time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions.” That understanding, however, is far from unending.
After explaining the need, Alito goes on: “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.” He pulls apart Governor Sisolak’s Directive 21 root and branch, explaining how it prefers drinking and gambling above worship services in violation of the Free Exercise Clause. Justice Alito details how risky it is, by comparison, for the state to host a veritable open house of thousands inside casinos – people who have traveled far and wide, who are encouraged to consume alcohol. This contrasts with a small church in a rural area comprised of local parishioners.
“Thus, while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.” [Emphasis in the original.]
He goes on to find justification in the Free Speech Clause, as well to bar enforcement of the regulation, saying: “the directive favors the secular expression in casino shows over the religious expression in houses of worship.”
Winner-Winner Chicken Dinner!
Justice Kavanaugh wrote separately, and at some length, to detail “why Nevada’s treatment of religious organizations is unconstitutional under the Court’s precedents.” He finds the law defies common sense and the Constitution. Justice Gorsuch concludes his brief dissent to say: “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
The case will now return to the district court for what will likely be a trip back up through the federal system. Instead of preventing future injury to the would-be worshippers, it will then be about paying them for the discrimination they have endured. If the church wins, Nevada taxpayers will be footing the bill for Sisolak’s burning need to keep the religious from operating more safely than casinos.
Read more from Scott D. Cosenza.
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