Justices decline to intervene in dispute over Nevada COVID-19 restrictions

A divided Supreme Court on Friday night turned down a request by a Nevada church for permission to hold services on the same terms that other facilities in the state, including casinos, are allowed to hold gatherings during the COVID-19 pandemic. Chief Justice John Roberts joined the court’s more liberal justices in denying the plea from Calvary Chapel Dayton Valley, a Christian church located about 15 miles outside the state’s capital, Carson City. The ruling drew sharp dissents from the court’s more conservative justices, with Justice Samuel Alito writing that although the “Constitution guarantees the free exercise of religion,” it “says nothing about the freedom to play craps or blackjack.”

Earlier this month the church asked the justices to issue an order that would allow it to hold in-person worship services with as many as 90 people while it challenges the COVID-19 shutdown order issued by the state’s Democratic governor, Steve Sisolak. The order discriminates against places of worship, the church argued, because it limits services there to a maximum of 50 people while allowing casinos, gyms, bars and restaurants to operate at 50% of capacity. The church stressed that it is willing to comply with rules regarding masks and social distancing (both of which were largely absent from a photo included in the church’s brief, taken at a crowded Las Vegas casino on June 4); all that it was asking, it emphasized, was to be treated the same as everyone else.

The state pushed back against the church’s suggestion that casinos and churches should be treated the same. Unlike houses of worship, the state noted, casinos are “highly regulated” industries that face “significant punishment” if they do not comply with COVID-19 restrictions and can be shut down quickly during a second wave of the pandemic. Indeed, the state continued, under the COVID-19 restrictions religious services receive better treatment than similar mass gatherings like lectures, concerts, sporting events and plays. And in any event, the state concluded, Calvary could accommodate its entire congregation if it wanted to, simply by holding more services.

In a brief one-sentence order, the court rejected the church’s request. In a dissent joined by Justices Clarence Thomas and Brett Kavanaugh, Alito observed that it was not necessarily a surprise that “Nevada would discriminate in favor of the powerful gaming industry and its employees,” “but this Court’s willingness to allow such discrimination is disappointing. We have,” Alito wrote, “a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.” “For months now,” Alito continued, state and local governments have “responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion.” Although that “initial response was understandable,” Alito conceded, government officials do not have free rein “to disregard the Constitution for as long as the medical problem persists.”

And as a practical matter, Alito suggested, the idea that “allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow”: For casinos, operating at 50% is likely to mean thousands of people, standing close together and drinking alcohol, which requires them to take off their masks. What’s more, Alito added, casino patrons often come from all over the country and visit several casinos during their stay in Las Vegas. By contrast, Alito suggested, worshippers can maintain social distancing and keep their masks on, and are unlikely either to travel from far away or to go from church to church.

Justice Neil Gorsuch filed a separate dissent in which he described the dispute as a “simple case”: Although “a 10-screen ‘multiplex’ may host 500 moviegoers at any time,” houses of worship are limited to 50 people, “no matter how large the building, how distant the individuals, how many wear facemasks, no matter the precautions at all.” “The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world,” Gorsuch concluded, “in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Kavanaugh filed his own dissent in which he stressed that the “risk of COVID-19 transmission is at least as high at restaurants, bars, casinos and gyms as it is at religious services.” So although states can “subject religious organizations to the same limits as secular organizations” when dealing with COVID-19, Kavanaugh indicated, and “those limits may be very strict,” states cannot “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” – which, in this case, the state has not offered.

In late May, the Supreme Court – with Roberts again joining the four more liberal justices – rejected a request by a church in southern California for an order that would have allowed it to hold services. The church in that case, South Bay United Pentecostal Church, argued that state and county shutdown orders discriminated against houses of worship by requiring them to remain closed while allowing retail stores, offices, restaurants and schools to remain open. Kavanaugh dissented from that order, but in his dissent on Friday in the Nevada case he noted that, in any event, the Calvary Chapel case is different “because it involves bars, casinos, and gyms.”

This post was originally published at Howe on the Court.