By a 5-4 vote on Friday the Supreme Court upheld Nevada’s coronavirus regulation that limits attendance at indoor religious services to 50 persons.
Some businesses in the state, such as casinos, may admit 50% of their capacity.
Chief Justices John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan decided July 24 to deny the application for injunctive relief presented by Calvary Chapel Dayton Valley, an ecclesial community in Dayton, Nev., about 40 miles southeast of Reno.
The majority offered their decision in Calvary Chapel Dayton Valley v. Sisolak without comment. The same justices had ruled similarly in May regarding California’s coronavirus limits on religious services.
Justice Samuel Alito wrote a dissent which was joined by Justices Clarence Thomas and Brett Kavanaugh, while Justice Neil Gorsuch wrote a separate dissent and Kavanaugh added his own thoughts.
The church argued that Governor Steve Sisolak’s coronavirus regulations unjustly targeted houses of worship compared to businesses such as casinos and restaurants. According to Alliance Defending Freedom, whose attorney’s represent Calvary Chapel, “Sisolak’s rule allows casinos, restaurants, bars, theme parks, and gyms to operate at 50% capacity but restricts churches to gatherings of 50 or fewer people regardless of building size.”
The ecclesial community sought permission for gatherings of about 90 persons, which is 50% of its capacity. It is currently holding three services each Sunday. Its website says face coverings are required and will be supplied in case of need, and ushers are ensuring social distancing.
Sisolak has said that casinos are more closely regulated by the state than are houses of worship, and so pose less of a threat to public health.
Both a district court and the Ninth Circuit had already denied Calvary Chapel’s application for relief from the governor’s regulation.
Gorsuch’s brief dissent observed that “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,” he wrote.
Kavanaugh wrote that “Nevada has offered no persuasive justification for that overt discrimination against places of worship. The risk of COVID–19 transmission is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed, people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services. And given the safety measures that Calvary Chapel and other places of worship are following—including social distancing, mask wearing, and certain additional voluntary measures—it is evident that people interact with others at restaurants, bars, casinos, and gyms at least as closely as they do at religious services.”
He said the state’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.”
And Alito wrote: “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.”
While Nevada’s discrimination “in favor of the powerful gaming industry … may not come as a surprise,” he called “disappointing” the willingness of the court’s majority “to allow such discrimination.”
“We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility,” Alito stated.
He said the chapel’s suit would likely succeed in its claim that the governor had violated its First Amendment rights, and that Nevada “has made no effort to show that conducting services in accordance with Calvary Chapel’s plan would pose any greater risk to public health than many other activities that the directive allows, such as going to the gym. The State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.”