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This year’s U.S. Supreme Court term has had its ups and downs for freedom of religion, but I doubt that anything is as fraught with dire implications as the decision that came down yesterday. In a 5-4 decision, a majority said that states could arbitrarily and without regard for the First Amendment place greater restrictions on houses of worship than they do on secular businesses.

In Calvary Chapel Dayton Valley v. Sisolak, the Court took the side of the Governor of Nevada, who decreed that businesses such as casinos can operate at 50% of capacity, while houses of worship, regardless of the size of their facility, are restricted to 50 attendees at a service. Calvary Chapel sued, claiming that the disparate treatment was a violation of the First Amendment. The Court majority arrogantly refused to even issue an opinion, apparently holding that the verdict was so obvious that it needed no explanation.

Justice Samuel Alito would have none of it:

Citing this disparate treatment, Calvary Chapel brought suit in Federal District Court and sought an injunction allowing it to conduct services, in accordance with its plan, for up to 50% of maximum occupancy….

I would grant an injunction pending appeal. Calvary Chapel is very likely to succeed on its claim that the directive’s discriminatory treatment of houses of worship violates the First Amendment. In addition, unconstitutionally preventing attendance at worship services inflicts irreparable harm on Calvary Chapel and its congregants, and the State has made no effort to show that conducting services in accordance with Calvary Chapel’s plan would pose any greater risk to public health than many other activities that the directive allows, such as going to the gym. The State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.

Nor could the state show that. The church’s plan went beyond state requirements for guaranteeing people’s health. Their sanctuary seats 180, and not only is 50% capacity too much, apparently 33% is as well. This isn’t “science,” it’s nothing more than an arbitrary limit. It could just as easily have been one hundred, or fifteen. (As far as it goes, depending upon the structure, there’s a good argument to be made that the 50% figure is also arbitrary, rather than being based on any data, but I’ll let that pass.) Alito goes on:

[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. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights. Governor Sisolak issued the directive in question on May 28, more than two months after declaring a state of emergency on March 12. Now four months have passed since the original declaration. The problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.

Alito’s dissent ran to 11 pages with extensive precedent citations. Justice Neil Gorsuch, on the other hand, went the short and sweet route, with what may be the shortest SCOTUS opinion of any kind I’ve ever read:

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.

The implications of this should alarm anyone who cares about freedom of religion. If elected officials have the power to impose arbitrary, baseless restrictions on houses of worship simply because of a perceived public health crisis, it’s hard to imagine a limit to how that power could be exercised. Already, Governor Newsom of California has banned singing in worship, regardless of measures that might be taken to mitigate viral spread. Onerous cleaning regulations could make it impossible to assure cleanliness to a state’s specifications, freezing congregations out of their facilities. Teaching children in a Sunday or Sabbath School classroom environment could be banned for the same reasons that schools are closed. Congregations could be prohibited from receiving contributions in any way other than credit cards, which most churches aren’t set up to do. All of this becomes possible in the name of “public health,” regardless of whether businesses (or public protests, wink, wink) are required to adhere to the same restrictions.

The pandemic has already resulted in almost 150,000 deaths. At the rate things are going, the First Amendment is going to be a victim of this virus as well.

But, hey, look on the bright side. At least we can still play the slots.

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