OPINION | This article contains political commentary which reflects the author's opinion.
On Friday, the Supreme Court denied a petition from a Nevada church challenging the state’s coronavirus cap on in-person attendance of religious services. The state’s restrictions only allow 50 people to attend a service, regardless of the size of the church, while allowing other businesses significantly more patrons:
Nevada has placed a 50-person cap on all places of worship, no matter the capacity of the building, as a part of the state’s coronavirus restrictions.
But casinos, along with other businesses such as restaurants and movIE theaters, may permit up to 50 percent capacity, allowing casinos to grant access to hundreds of patrons at a time.
State lawmakers argued that “law enforcement did not have the resources to enforce the 50 percent capacity regulations” for places of worship, whereas “casinos are beholden to the Nevada Gaming Control Board, which has enforced additional employee training on health requirements.”
I’m still searching my Constitution, trying to find authority for the state to discriminate against religious services based on the state’s inability or unwillingness to police compliance with an arbitrary public health mandate.
Anyway, the Court voted 5-4 to deny the church’s appeal. Once again, Chief Justice Roberts, ostensibly a conservative, acted as the swing vote in this anti-religion decision—a decision countered by separate dissents from no less than three of the more conservative justices: Alito, Kavanaugh, and Gorsuch. All three dissents make clear that this decision is clearly discriminatory against religious gatherings.
“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,” wrote Justice Samuel Alito, who later added the case was likely to succeed on First Amendment grounds.
Justice Brett Kavanaugh, in yet another dissenting opinion, wrote: “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. In other words, Nevada is discriminating against religion.
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Justice Gorsuch provided a succinct, blistering 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 distance 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.
The dissents are right: This should have been a simple case. If other organizations are allowed to operate at 50 percent capacities, churches should be allowed to operate at 50% capacity too. Unfortunately, too many of our justices are more concerned with advancing their preferred narratives and pandering to public opinion than actually upholding the Constitution.