Because of COVID-19, the state of Nevada imposed certain restrictions on various businesses and establishments. For bars, restaurants, gyms and casinos, the state has set an attendance cap of 50% of capacity. For some of the larger casinos, such as Caesar’s Palace, this would allow hundreds, if not thousands, of people to congregate at the same time at the slot machines and blackjack, roulette and poker tables.
At the same time, Nevada has imposed a maximum 50 person limit on the number of people who may simultaneously congregate to worship at churches, synagogues, and mosques, regardless of capacity.
In imposing these directives, Nevada’s Governor claimed virtually unlimited power to deal with the COVID-19 pandemic.
Calvary Chapel of Dayton Valley begged to differ. It wishes to host worship services for 90 worshippers at a time, which is 50% of its fire code capacity. Calvary planned to establish its own set of rules that went above and beyond measures recommended by the CDC or even anything that the state required. These measures included social distancing, cutting the length of its services in half, separating families seated in the pews by six feet, prohibiting items from being passed from one congregant to another, guiding congregants to doorways along one-way paths, and leaving enough time between services to sanitize the building.
Calvary sued the Governor of Nevada, seeming to enjoin enforcement of the disparate state directives on the First Amendment grounds of free exercise of religion and freedom of speech.
The matter ended up before the U.S. Supreme Court, which in a 5-4 opinion denied the request for an injunction. The standard for obtaining a court injunction is quite high. An applicant must show they would suffer irreparable harm if the injunction is not granted and that they are likely to prevail on the underlying merits of the case.
Justice Alito penned a dissent in which he strongly disagreed with the Court’s denial of an injunction. He opined that there was no doubt the worshippers at Calvary Chapel would suffer irreparable harm if they were prevented from attending services. He also stated that Calvary was likely to prevail on the merits of their case.
He pointed out that the state of Nevada certainly had not shown that what goes on in chapels is any riskier than what goes on in casinos. Conceding that public health emergencies may obviously require unprecedented measures, Justice Alito noted the passage of four months and the accumulation of knowledge and experience since the beginning of the pandemic. Moreover, a pandemic does not automatically give the state carte blanche to restrict religious freedom.
Justice Gorsuch’s one-page dissent, while perhaps not destined to be enshrined in history alongside the Declaration of Independence or the Magna Carta, is nevertheless interesting to peruse and reads almost like a 500 word eye roll. 🙄
Justice Kavanaugh’s dissent marks him as a profound thinker on religious liberty issues, in my opinion. He distinguished four categories of laws respecting religion: 1) laws that expressly discriminate against religious organizations; 2) laws that expressly favor religious organizations; 3) laws that do not classify on the basis of religion, but apply to secular and religious organizations alike; and 4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.
Laws that discriminate against religion are simply odious to our Constitution.
Laws that expressly favor religion can sometimes trigger Establishment Clause challenges because of the apparent favoritism of religion.
Laws that treat religious organizations and secular organizations equally are not facially invalid. However, if in practice they impose substantial burdens of religious exercise. A religious organization may seek a legislative or judicial exemption to the extent available under federal or state law and consistent with the Establishment Clause.
Then there are laws that treat religious organizations equally to some secular organizations but either better or worse than other secular organizations. Nevada’s law falls into this category. Churches are treated the same as some organizations, such as movie theaters, but worse than others, such as casino, bars, restaurants and gyms.
While Justice Kavanaugh recognizes the need for emergency public health measures, he points out that the state of Nevada simply had not proffered any persuasive reasons for treating churches worse than casinos, bars, restaurants, and gyms.
Justice Kavanaugh’s dissent is insightful and worth studying, in my opinion.
To paraphrase one prominent religious leader, “we must never again allow religious organizations to be treated as non-essential services.”
Amen to that.
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