Casinos Open, Churches Closed

A bizarre but possibly correct ruling by the Supreme Court.

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.

[…]

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.

FILED UNDER: COVID-19, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. NoOil4Pacifists says:

    Yet, it violates viewpoint neutrality, as well. And to your point, even if not viewpoint discrimination, the injunction permitted thousands to gather in casinos indoors, but not more than 50 even in outdoor religious services, even if all participants in the latter were masked.

    As you say, casinos attract mostly out-of-towners, and one thing we’ve learned in recent weeks is that second wave infections have been the highest in states that are “traveled to,” such as N.Y., FL, and Cal. I’m all for balancing health and economic needs, but not via a clear constitutional violation.

    This refusal to examine the appeal of the injunction takes us a step backwards towards the invidious Korematsu v. United States, 323 U.S. 214 (1944), where we locked up U.S. citizens of Japanese descent during World War II.

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  2. Kathy says:

    I don’t think anyone’s fed a token to a slot machine in Nevada in decades*.

    Past that, in Vegas there are plenty of locals casinos that attract very few tourists. Which is a shame for the tourists, as these tend to offer better payouts (like 3:2 rather than 6:5 blackjack), and lower betting limits (like $1 craps with full odds).

    All that said, given the numbers we’re seeing in Nevada for COVID-19, the casinos ought to be further restricted or closed down again.

    *The D casino Downtown has a collection of old coin machines, and you can feed them coins although they also take bills. But they don’t use tokens.

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  3. NoOil4Pacifists says:

    Of course us “out-of-towers” know where the better odds are. I play craps, and stay away from MGM or Caesars (where normally I can only can get 2x odds on the numbers and behind the pass line bets), in favor of casinos that offer 10x odds.

    Still, I agree the Nevada numbers are alarming—and I once lived just outside Las Vegas. Closing the casinos seems a non-starter economically (we used to say Nevada had three industries: gambling, prostitution, and divorce). But regardless of that decision, Nevada cannot discriminate against religion. I stand with Justice Gorsuch’s one paragraph dissent.

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  4. Sleeping Dog says:

    Given the number of churches that have been the center of super spreader events limiting occupancy or keeping them closed is good public policy. Casinos should be shut down if when they’re shown to be viral vectors.

    It seems that a substantial majority of the challenges to the emergency regulations are coming from fundamentalist churches, which has the cynic in me wondering if the reason for these churches aggressiveness, has more to do with shortfalls in the collection plate and fears of losing their hold on parishioners.

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  5. Jon says:

    @Sleeping Dog:

    … wondering if the reason for these churches aggressiveness, has more to do with shortfalls in the collection plate and fears of losing their hold on parishioners.

    Oh for sure, but that’s the same for secular institutions as well; loss of income and fear of losing customer base.

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  6. EddieInCA says:

    As someone who has lived in Vegas while working for 9 months, when I gambled, I stayed away from the big casinos favored by tourists. I played downtown (before Fremont Street) at places like Binion’s and The Horseshoe. I could get 3:2 on Blackjack, and could split unlimited times, and could double down on split hands. I once took $100 to $5200 in 9 hours at a $5 table. I only play blackjack, only alone against a dealer, and leave once I lose my bankroll for the day, which is usually $50-$100. I like money too much to actually gamble real monty. I win much, much more than I lose. But I gamble for fun, not profit. I can have a blast playing $2 blackjack for five hours with $50 bucks. Heck, midweek, you used to have $1 blackjack at Binion’s.

    Having said all that, no effing way I’d get close to any casino right now, much less go actually go inside one. Your respiratory health is always at risk at a casino (less so with the no smoking rules), but much worse during a pandemic.

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  7. MarkedMan says:

    @NoOil4Pacifists: What’s with your screen name?

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  8. Sleeping Dog says:

    @Jon:

    That’s not true across the board. My wife is on the council of her church, mainline Protestant, and their collections are running ahead of what they normally are. Plus they are getting more online service hits that normally would be in the pews.

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  9. Jon says:

    @Sleeping Dog:

    My wife is on the council of her church

    Interesting use of the 3rd person there 😉

    And yeah, it’s not true for every specific case. But it can be useful to think of individual churches as small businesses in contexts like this, when comparing behaviors.

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  10. Thomm says:

    @MarkedMan: The name is what sticks out to you and not the statement that this is a step towards internment camps? That is a bit of wannabe persecution I wasn’t expecting, but in hindsight not surprised by.

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  11. EddieInCA says:

    @NoOil4Pacifists:

    But regardless of that decision, Nevada cannot discriminate against religion. I stand with Justice Gorsuch’s one paragraph dissent.

    Actually, the Supreme Court just ruled the opposite. Gorusch’s dissent means his argument lost.

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  12. Jon says:

    @Thomm:

    this is a step towards internment camps

    I’m not sure I follow how this ruling is the start of that slippery slope. Can you elaborate to help me understand?

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  13. Michael Cain says:

    @Sleeping Dog:

    Casinos should be shut down if when they’re shown to be viral vectors.

    Indeed. But the tracing part of that is much harder for casinos, especially the big tourist-oriented ones. Churches are easy — 20 local cases, the only thing they have in common is going to the same church. For a casino, 200 cases but spread across 20 states. The local authorities in each state may identify 10 cases that shared travel to Las Vegas, but probably aren’t asking questions at the level of “What casino(s) did you visit?” And the states aren’t able to combine records and come up with 200 cases linked to, say, Circus Circus.

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  14. NoOilforPacifists says:

    EddieInCA—indeed; I used to travel to LV once a year to gamble, mostly craps, and some blackjack. As I said above, I gamble at craps tables that allow 10x odds, and blackjack tables that use one-deck shoes. (I once got thrown out of a small casino playing one-deck blackjack for splitting “7s”—the croupier let the hand go, then raked in all my chips, wished me luck, but said I wasn’t welcome there anymore!)

    But as for the big casinos, even with a 6-per-table limit, there would be literally thousands there. I don’t know whether masks would be required; certainly most (rarely me) drink while gambling.

    An outdoor church service is different. But don’t take my word for it: the First Amendment says so.

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  15. wr says:

    @EddieInCA: “As someone who has lived in Vegas while working for 9 months,”

    CSI?

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  16. Kathy says:

    PSA: If you feed the new trolls, they won’t want to leave.

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  17. wr says:

    @Thomm: “The name is what sticks out to you and not the statement that this is a step towards internment camps?”

    Well, it’s simply a fact that if people who call themselves Christians are not allowed to do whatever they want, no matter what law applies to other people, it’s the greatest oppression ever known to mankind. If Trump were allowed one more Supreme Court appointee, we’d soon see that it’s oppression to keep Christians who believe that homosexuality is a sin from stoning gays to death. After all, it’s what their religion demands of them!

    Stopping any “Christian” from doing whatever he can justify by “religious feelings” is always one step away from the gulags.

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  18. Jon says:

    @Kathy:

    PSA: If you feed the new trolls, they won’t want to leave.

    True, and I normally wouldn’t. I just feel like I’ve been assuming the worst in folks a lot recently, and since this wasn’t somebody I recognized I figured I’d try and withhold judgement.

    But point very much taken, overall.

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  19. MarkedMan says:

    @Thomm: I expect that others here will challenge his assertions, and more power to them, but I don’t feel particularly motivated to debate gulags this morning. I am mildly curious about the name, as it doesn’t parse for me. Someone choses a name, it likely says something about their motivations and perspectives.

    Oddly enough, that’s not really true in my case. My nom de guerre comes from outside the realm of politics or blogging or paranoia or anything else. It’s just a professional reference that started decades ago when I had to come up with a username, not an email, for the various online resources I used. I looked around the office, spotted a piece of advertising, and made it a little more dramatic. Never really thought anyone but me would know it.

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  20. MarkedMan says:

    I see he has a blog that seemed to have been inspired by 9/11, so I guess that explains the “No Oil For Pacifists” thing. I briefly scanned a few entries and from a 2017 post gathered that he is a died in the wool Trumper.

    It’s sometimes worth it to discuss issues with someone who is only mildly attentive to the world around them, but if you get to the point where someone is actively engaged enough to write a blog and they are still died in the wool Trumpers, or flat earthers, or young world creationists, will, that’s just not my thing.

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  21. @Nooil4Pacifists says:

    @Thomm:

    If you recall, it was the Christians, not others, who were constrained in their actions in the “gay bakers” case, notwithstanding the fact (shown in briefs in that case) there were dozens of other bakeries in that town perfectly willing to provide the cake the gay couple wanted.

    Neither the Constitution, nor any constituted Supreme Court, would permit stoning—murder I remind you—in furtherance of Christianity. But the National Religious Fredom Restoration Act (RFRA), and the various state analogues, were supposed to permit freedom of worship so long as it did not harm others and any constraint was the “least restrictive means” of achieving the stated government goal. The Nevada law flunks the second test, because a far less restrictive means was allowed for a different, and less protected, assembly of persons.

    It also violates the “free exercise” clause of the First Amendment without reference to RFRA, and Justice Gorsuch properly noted in dissent. “Gaming” is not a constitutionally protected activity. Religion is. It’s that simple.

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  22. Jon says:

    @MarkedMan: Oy, and re-tweets Juanita Broaddrick and Ken Cuccinelli. I officially regret everything 🙂

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  23. @nooil4pacifists says:

    MarkedMan: take care to distinguish between things written by “NoOilforPacifists” and others. I don’t think you have the faintest idea who I support in November.

    All: I can see why Doug recently complained about how few Republicans ever comment here. So far as I can tell, no one addressed the Constitutional and statutory questions at issue, preferring ad hominem attacks based on my nom de plume.

    Mentioning “gulags” isn’t quite stooping to “Godwins’s Law,” but it is close enough for me. Never mind; play in your sandbox.

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  24. Kathy says:

    @Jon:

    It turns out cynicism is a very useful tool for decoding the motivations of trump’s supporters.

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  25. Michael Reynolds says:

    Data:

    70.6% of Americans are Christian. But somehow, in the minds of many Christians, they are an abused minority. I suppose believing that helps them to ignore the real abused minorities, the minorities abused by Christians in fact.

    Never in the course of human events have so many felt so sorry for themselves with so little reason.

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  26. Teve says:

    @MarkedMan:

    It’s sometimes worth it to discuss issues with someone who is only mildly attentive to the world around them, but if you get to the point where someone is actively engaged enough to write a blog and they are still died in the wool Trumpers, or flat earthers, or young world creationists, will, that’s just not my thing.

    the creationist blog http://www.uncommondescent.com has provided me with thousands of hours of entertainment. I don’t usually engage, though. They are humongously crazy idiots.

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  27. Jon says:

    @Kathy: Yeah, but I’m generally deeply cynical, to the point where I sometimes exhaust even myself. I figured today of all days, the day on which we’re watching John Lewis’ last journey across the Edmund Pettus Bridge, I should maybe try something different. And we all see how well that worked out 🙂

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  28. Gustopher says:

    Any time a law or regulation has an intention or unintentional disproportionate impact on churches or minorities, I think it really needs stricter scrutiny. Protected classes and all that.

    There have been a lot of superspreader events in churches — but where possible we should be restricting behavior, not churches themselves.

    I don’t think restaurants and casinos are the right benchmark though — churches are closer to concerts and/or speeches. And we certainly should not carry over a 50% occupancy limit, people per square feet is a better metric as that’s what increases risk. That’s where I think Gorsuch’s dissent is wrong. He’s right to ask the questions, but he got some of the answers wrong.

    The majority, however, does not seem to be protecting the rights of worshippers. A flat, hard limit is fine as a temporary order, but Nevada should have had to come up with a better process, even if it puts a burden on churches to come up with a covid plan before they can exceed those limits.

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  29. Thomm says:

    @Jon: ask nooil4pacifists. They referenced Korematsu.

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  30. Thomm says:

    @MarkedMan: fair enough. I saw it as an old nym harkening back to Iraq insinuating that anyone against the war did not deserve oil, or its many side products.

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  31. SC_Birdflyte says:

    @Sleeping Dog: Our church (Episcopalian) has a parish school with a soccer pitch, which works quite well for outdoor services. But our bishop says no indoor services until SC’s new cases are on a downslope for at least 15 days.

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  32. EddieInCA says:

    @wr:

    wr says:
    Sunday, July 26, 2020 at 10:11

    CSI?

    https://en.wikipedia.org/wiki/The_Strip_(American_TV_series)

    The Strip. Short run. Long, long prep and wrap. Remind me to tell you the Sheldon Adelson story when I finally get back to NYC.

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  33. Sleeping Dog says:

    @Jon:

    We have one of those agreements that make marriages last. Except for Easter, she doesn’t bug me about going to church, in return I don’t point out that I view it as a silly superstition and in fact acknowledge that participation improves her quality of life.

    @SC_Birdflyte:

    I don’t know what the Methodist hierarchy here is recommending, but her church is far from returning the pews doing online and parking lot services. The congregation is pretty old and the virus running through it would cause much death.

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  34. An Interested Party says:

    Never in the course of human events have so many felt so sorry for themselves with so little reason.

    Hmm, lots of conservatives and white people also seem to feel this way…what a coincidence…

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  35. Jax says:

    @MarkedMan: Ha! I always wondered about your username. I figured you’re either a reformed gangster and hiding out, or covered in tattoos. 😉

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  36. Gustopher says:

    @Jax: I assumed he was named Mark Edmunds, and his pseudonym was just a pun.

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  37. Jax says:

    @Gustopher: Well, that’s just not romantic at all. 😐 Way more fun to imagine him as a reformed gangster or a guy with full tattoo sleeves and talking all dirty with his fully formed arguments and properly diagrammed sentences. /ROFLMAO font

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  38. MarkedMan says:

    @Jax: The next time my wife and kids need a good laugh I’ll tell them that you guys think of me as a tattooed gangster…

    Truth be told, I was very slightly sketchy in my teenage years and have strived for the right kind of boring ever since…

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  39. HarvardLaw92 says:

    Surprisingly, I have to agree with Gorsuch in this matter. The measures, as implemented, impermissibly impose a separate, more restrictive set of conditions on churches (and indeed all but a few selected industries) to the disproportionate benefit of those privileged by the policy. It really does need to be consistent.

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  40. de stijl says:

    @MarkedMan:

    I chose “de stijl” in the late 80s. Usenet. Liked Mondrian. Looks good in lowercase. Solid nym.

    In my head then it rhymed with de steel, not the correct Dutch pronunciation.

    Now, I like it is “de style” that I know better.

    Either way works.

    It was a snap judgement decades ago. No regrets.

    Just stuck with it.

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  41. de stijl says:

    @@nooil4pacifists:
    @@Nooil4Pacifists:

    Pick a consistent nym. All lower case, or randomized capitalization.

    Were I you, I would go for NoOil4Pacifists. It has punch and moxie. Contrast. All lowercase works too. I do it.

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