By Thomas Mitchell
Let’s get this straight, according to a 5-4 one-sentence U.S. Supreme Court ruling Friday, if a Nevada church were to hold a bingo night in its 500-seat auditorium, under Gov. Steve Sisolak’s diktat, 250 people could attend, since the governor’s orders allow 50 percent capacity for casinos, but, if someone were to say a prayer, 200 would have to leave, since the governor says only 50 people may attend church services.
Four justices thought that a little bit duplicitous. Justice Neil Gorsuch wrote in his dissent: 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 Samuel Alito, joined by Justices Clarence Thomas and Brett Kavanaugh, was equally incensed at the disparate treatment, writing: 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 percent of their maximum occupancy — and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.
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.
The suit was brought by Calvary Chapel Dayton Valley, a church in Lyon County east of Reno. It wanted to conduct services for 90 congregants, about 50 percent of its fire-code capacity. According to Alito, it planned to ask attendees to adhere to proper social distancing of six feet separation, would cut the length of services in half, prohibit items being passed among the congregation, guide congregants to designated doorways along one-way paths, and to leave time between services so the church could be sanitized.
Do casinos require as much? Justice Kavanaugh wrote in a separate dissent: But COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services.
There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech.
This Court’s history is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserted crisis circumstances to override equal-treatment and free-speech principles. The court of history has rejected those jurisprudence mistakes and cautions us against an unduly deferential judicial approach, especially when questions of racial discrimination, religious discrimination, or free speech are at stake.
But Chief Justice John Roberts — joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — denied the church’s appeal without deigning to comment on such a significant constitutional matter.
By Thomas Mitchell