The Supreme Court denied a petition Friday from Calvary Chapel Dayton Valley, a Nevada church asking for relief from the state’s strict attendance cap on in-person religious services.
Chief Justice John Roberts sided with the high court’s majority in an unsigned opinion, which was strongly rebuked in three separate dissenting opinions from the court’s more conservative justices.
“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 Neil Gorsuch, who recently sided with the court’s liberal appointees on a high-profile religious liberty case, wrote a powerful yet succinct dissent in which he argued that the Nevada case currently at hand was truly “simple.”
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 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.”
According to The Associated Press, Calvary Chapel’s case is currently working its way through an appellate court in San Francisco, but the future of the case appears unclear, given that the appellate court has already denied the church injunctive relief.
The Supreme Court also denied injunctive relief to a California church in early June in a case that National Review contributor Carrie Severino argued “should have been an easy call.”
Chief Justice Roberts blatantly mischaracterizes the issue. The test of discrimination isn’t whether any comparable secular activity is treated as badly as religious activity, it is whether any comparable secular activity is treated better than religious activity. In the race context, it is obviously wrong to say blacks cannot claim discrimination if Hispanics are treated just as badly, because the proper question is whether any race is treated better than African Americans. If Roberts thought this was a close call, he should have voted to grant the temporary relief to avoid irreparable harm in turning back so many Pentecostal churchgoers on Pentecost Sunday.