Nevada’s churches are being subject to substantially more severe restrictions during the coronavirus pandemic than casinos and churches. In a 5-4 decision, the Supreme Court said that was okay.
NYT (“Split 5 to 4, Supreme Court Rejects Nevada Church’s Challenge to Shutdown Restrictions“):
The Supreme Court on Friday rejected a request from a church in Nevada to block enforcement of state restrictions on attendance at religious services.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four more liberal members to form a majority.
The court’s brief order was unsigned and gave no reasons, which is typical when the justices act on emergency applications. The court’s four more conservative members filed three dissents, totaling 24 pages.
Calvary Chapel Dayton Valley in Dayton, Nev., argued that the state treated houses of worship less favorably than it did casinos, restaurants and amusement parks. Those businesses have been limited to 50 percent of their fire-code capacities, while houses of worship have been subject to a flat 50-person limit.
Justice Samuel A. Alito Jr., in a dissent joined by Justices Clarence Thomas and Brett M. Kavanaugh, wrote that the distinction made no sense.
“The Constitution guarantees the free exercise of religion,” he wrote. “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.”
“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,” Justice Alito wrote.
The court considered a similar objection from a California church in May, and it rejected it by the same 5-to-4 vote. But Justice Alito, who dissented in the earlier case, said the new one was more troubling in light of the differing treatment of casinos and churches.
“That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise,” he wrote, “but this court’s willingness to allow such discrimination is disappointing.”
In a second dissent, Justice Neil M. Gorsuch said the case was simple.
“The world we inhabit today, with a pandemic upon us, poses unusual challenges,” he wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
In his own dissent, Justice Brett M. Kavanaugh agreed that the case was straightforward.
“Nevada’s 50-person attendance cap on religious worship services puts praying at churches, synagogues, temples and mosques on worse footing than eating at restaurants, drinking at bars, gambling at casinos or biking at gyms,” he wrote. “In other words, Nevada is discriminating against religion.”
I encountered the case yesterday afternoon through a retweet of part of Gorsuch’s dissent, which is eloquent and persuasive. Why Kavanaugh and Alito felt the need to write separate, inferior one’s is not obvious.
But Vox’s Ian Millhiser‘s explainer (“The Supreme Court’s surprising decision on churches and the pandemic, explained“) is solid and makes me think Chief Justice Roberts once again picked the right side.
The general rule in religion cases such as Calvary Chapel is that people of faith have to follow a “valid and neutral law of general applicability.” That is, churches typically cannot claim special exemptions from the same laws that apply to anyone else. If other local businesses and gathering places have to comply with the local fire code, churches typically will have to do so as well.
The general rule in religion cases such as Calvary Chapel is that people of faith have to follow a “valid and neutral law of general applicability.” That is, churches typically cannot claim special exemptions from the same laws that apply to anyone else. If other local businesses and gathering places have to comply with the local fire code, churches typically will have to do so as well.
But the government typically may not single religious institutions out for inferior treatment that it does not impose on secular institutions. A state could not, for example, require places of worship to install an elaborate and expensive fire suppression system unless similar institutions were also required to install such a system.
Both Calvary Chapel and South Bay involved this distinction between laws of general applicability and laws that treat churches differently than similar institutions. South Bay, however, was a fairly easy case because, if anything, the California public health rules at issue in that case gave places of worship more favorable treatment than similarly situated businesses.
California planned to reopen businesses and other institutions in four stages. By the time South Bay reached the Supreme Court, retail businesses and many workplaces had reopened, albeit with restrictions. Most places where groups of people gather in auditorium-like settings, such as movie theaters and live concerts, remained closed. But places of worship were allowed to reopen at limited capacity.
Thus, churches were treated more favorably than similarly situated businesses, as they were allowed to reopen sooner than other places where groups of people gather in auditorium-like settings.
As Chief Justice Roberts wrote in an opinion explaining why he voted against the church in that case, “although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” Whatever restrictions California placed on churches, “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”
Thus, Roberts reasoned, California’s public health order could remain in effect without any additional accommodations for places of worship. Yes, the state did allow some businesses to open with fewer restrictions than those imposed on churches, but the secular institutions most similar to places of worship were treated less favorably than comparable religious institutions.
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The Supreme Court just completed a contentious term in which it handed down some significant legal victories for the religious right. The Court’s Republican majority, which includes Roberts, is often quite sympathetic to religious objectors who claim they should not have to follow laws that burden their religious beliefs. So it’s more than a little surprising that the church did not prevail in Calvary Chapel.
The five justices in the majority, moreover, did not explain their votes in Calvary Chapel. Rather, the majority disposed of this case in a one-sentence order: “The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.”
That said, Roberts did publish an opinion explaining his vote in South Bay, and that opinion provides a window into why the conservative chief justice may have voted the way he did in Calvary Chapel.
“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
Unlike his fellow Republican justices, in other words, Roberts appears to believe that courts have a particularly strong duty to defer to democratically accountable officials during an historic public health crisis.
It should be noted that Roberts’s deference to “the politically accountable officials of the States” does not always cut in favor of public health — or, for that matter, in favor of democracy. Roberts has thus far rejected attempts to make it easier for voters to cast an absentee ballot during a pandemic. It appears that, if state and local officials force voters to risk infection in order to cast a ballot, Roberts will do little, if anything, to stop them.
But Roberts does generally appear to be more deferential than his most conservative colleagues to state officials who are trying to reduce the spread of Covid-19. Indeed, as Calvary Chapel shows, he appears to be willing to defer to these officials even when they hand down public health orders that draw constitutionally dubious lines.
I don’t have a strong opinion on the merits here. I’m persuadable that casinos, which likely mostly attract out-of-towners, are much more dangerous than churches, which presumably attract mostly locals. I’m persuadable that casinos, which have historically been the economic lifeblood of Las Vegas, are essential businesses and that churches, which can conduct worship services remotely, are not.
Regardless, absent strong evidence of ill intent, it’s a decision that ought be left to the responsible authorities in the state of Nevada and the city of Las Vegas. They’re either elected by the people who live there to make those decisions or, in the case of health authorities, career professionals with specialized training. Judges should naturally defer to those authorities, so long as they seem to be acting in good faith.
