By a 5-4 vote, the U.S. Supreme Court on Friday refused to grant an injunction pending appeal to a church that is challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. A Nevada federal district court upheld the Nevada Order. ( See
prior posting). The 9th Circuit
denied an emergency motion for injunctive relief pending appeal. In
Calvary Chapel Dayton Valley v. Sisolak, (US Supreme Court, July 24, 2020), while the majority did not file an opinion explaining their vote, the four dissenting Justices did. Justice Alito filed a dissenting opinion, joined by Justices Thomas and Kavanaugh, finding free speech and free exercise violations, saying in part:
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% 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.
Justice Gorsuch filed a brief dissent, saying in part:
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 Kavanaugh also filed a separate dissent, laying out a broad framework for approaching religion cases. He says in part:
The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another.
In my view, some of the confusion and disagreement can be averted by first identifying and distinguishing four categories of laws: (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. As I will explain, this case involving Nevada’s reopening plan falls into the fourth category.
