The decision was 5-4, with Chief Justice John Roberts, once again, joining the court’s liberals. This was the second time the court ruled on this issue; previously a California Pentecostal church had claimed its rights were violated by coronavirus restrictions, and Justice Roberts joined the four liberals. He wrote a concurring opinion with the majority in May stating that the church was being treated no differently than any other public establishment that was shut down due to Governor Gavin Newsom’s orders.
This time the Nevada church argued it was being treated differently because churches are kept to a 50-person limit while casinos are being kept to a 50 percent capacity. The church wanted to seat 90 people. This time the majority issued no opinion, but the minority went bonkers, raising holy hell, and issued no less than three dissents — one from Samuel Alito, one from Neal Gorsuch and one from Brett Kavanaugh.
“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,” Alito thundered. Gorsuch went with: “[T]here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
But in fact, Nevada treated churches just as it treated other venues in which larger numbers of people congregate and where social distancing is impractical: Movie theaters, concert halls, sporting arenas, live entertainment halls and other venues. The casinos were treated as other businesses in which strict adherence — in-use slot machines separated far apart, for example — are easily enforceable.
Frankly, I don’t think the casinos or any businesses should be open in a state that is seeing a surge in coronavirus cases and which opened too early.
But as the federal district judge declared when he ruled against the church, the discretion should be given to state health officials. He quoted Roberts’ opinion from the earlier California case: “Whether a church is more like a casino or more like a concert or lecture hall for purposes of assessing risk of Covid-19 transmission is precisely the sort of ‘dynamic and fact-intensive’ decision-making ‘subject to reasonable disagreement’ that the court should refrain from engaging in.”
This is one of those cases that, while a minor blip in all the news happening right now, underscores just how forceful the religious liberty adherents on the Supreme Court are. It’s a reminder about cases like several recent ones — allowing employers wide latitude to discriminate on the basis of religious beliefs, which ultimately includes against LGBTQ people and women — and many cases coming up to the court.
Justice Roberts is clearly the swing vote in these religious liberty cases but, the churches and coronavirus aside, he’s with the conservatives on this issue more than he’s with the liberals, especially when it has long-lasting effects.