Churches and COVID: Brief in Recess for July 24

Yesterday evening, the Supreme Court by a 5:4 vote rejected a church’s challenge to Nevada’s latest COVID-19 shutdown orders. The vote split on ideological lines, with Chief Justice Roberts swinging toward his more-liberal colleagues. Churches are now 0-2 in the Supreme Court on emergency challenges to a state’s COVID-19 shutdown guidelines.

On May 28, 2020, Nevada Governor Steve Sisolak issued Directive 021, setting out guidelines for the reopening of businesses and institutions during the ongoing coronavirus pandemic. The Directive places occupancy limits on virtually every Nevada business and institution, but it uses two different metrics. Some institutions are limited to 50% of their fire code standards; others are capped at 50 people, regardless of their fire code standards. Any institution that fails to comply with these rules faces criminal or civil penalties.

Most institutions are subject to the 50%-of-fire-code rule, including casinos, retail stores, malls, restaurants, bars, gyms, and public pools. Movie theaters are limited to 50 people per screen. At some large places—especially casinos and malls—this rule can allow hundreds or even thousands of people to congregate in close areas for an extended period of time. Governor Sisolak has also okayed (and took part in) the recent George Floyd protests in his state despite the Directive’s ban on large public gatherings.

Screen Shot 2020-07-25 at 4.18.42 PM
Image of a casino in Las Vegas, NV on June 4, 2020. See the Church’s Petition, page 1.

However, a few institutions are subject to the more stringent 50-person rule. These institutions are museums, art galleries, zoos, aquariums—and houses of worship, which the Directive defines to include all manner of “churches, synagogues, mosques, temples,” and “faith-based organizations.” So, no church can hold services with more than 50 congregants even if its fire code allows for more than 100 persons at a time.

Calvary Chapel, a rural Christian church located outside Carson City, challenged the Directive as it applies to houses of worship. Specifically, Calvary argued that Nevada has discriminated against religious institutions in violation of the Free Exercise Clause of the First Amendment. Calvary petitioned for a temporary restraining order against the Directive’s enforcement and, when that was denied, a preliminary injunction. The church’s petition did not ask to be free from any occupancy restrictions whatsoever. Instead, it asked only to be subject to the same 50%-of-fire-code limit that Nevada had placed on most other secular institutions. In its brief, Calvary testified that such a limit would permit up to 90 congregants in its church building at any given time. Meanwhile, the church has taken several health measures to ensure that its worshippers do not create an unsafe environment.

But yesterday evening, by a vote of 5:4, the Supreme Court denied Calvary’s petition for injunctive relief. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan were in the majority. The Court did not issue any explanation for its denial, though this is normal for denials of emergency petitions like the one here.

Three Justices penned dissents. Justice Alito (joined by Justices Thomas and Kavanaugh) fully agrees with Calvary that Nevada’s shutdown guidelines discriminate against religious institutions, and he would have granted the church’s petition for injunctive relief. “The Governor’s directive specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people,” he writes, citing several of the examples I mentioned above. He continues: “The idea that allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow,” calling Nevada’s efforts to justify such discrimination “feeble.”

Justice Gorsuch wrote a one-paragraph dissent in his trademark down-to-earth style:

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.

Finally, Justice Kavanaugh authored a 12-page dissent. He joins Alito’s dissent “in full” and writes separately to add a few things. He canvasses the Court’s First Amendment jurisprudence, finding that this case falls into the class of cases in which a state “divv[ies] up organizations into a favored or exempt category and a disfavored or non-exempt category.” Kavanaugh explains that Nevada has put churches in the “disfavored or non-exempt” category because it withholds a “certain benefit” (the relaxed occupancy limit) from them while giving that same benefit to organizations in the “favored or exempt category” (like casinos, restaurants, malls, and the like). Such a move passes constitutional muster only if the state “sufficiently justifie[s] the basis for the distinction,” he adds.

This begs the question, what is sufficient justification? Kavanaugh doesn’t set out a bright-line rule, but he does give some insight. It doesn’t suffice to show that the state has placed some secular organizations in the “disfavored” category too, Kavanaugh contends.  And he rejects both justifications Nevada tried to offer here. First, “Nevada undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens,” Kavanaugh admits. “But it does not have a persuasive public health reason for treating churches differently from restaurants, bars, casinos, and gyms.”

Second, Nevada tried to stake an economic claim. Businesses can have greater occupancy limits than churches, it said, because churches provide no economic benefits. But Kavanaugh doesn’t see how that’s a compelling argument. “[N]o precedent” has ever suggested that a state may discriminate against religious institutions simply because they they don’t generate profits. Such a conclusion is unconstitutional, Kavanaugh notes, since it “reflect[s] an implicit judgment that for-profit assemblies are important and religious gatherings are less so; that moneymaking is more important than faith during the pandemic.”

Photo Credits: Stock Photo

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