Split 5 to 4, Supreme Court Rejects Nevada Church’s Challenge to Shutdown Restrictions

The Supreme Court on Friday rejected a request from a church in Nevada to block enforcement of state restrictions on attendance at religious services.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four more liberal members to form a majority.

The court’s brief order was unsigned and gave no reasons, which is typical when the justices act on emergency applications. The court’s four more conservative members filed three dissents, totaling 24 pages.

Calvary Chapel Dayton Valley in Dayton, Nev., argued that the state treated houses of worship less favorably than it did casinos, restaurants and amusement parks. Those businesses have been limited to 50 percent of their fire-code capacities, while houses of worship have been subject to a flat 50-person limit.

Justice Samuel A. Alito Jr., in a dissent joined by Justices Clarence Thomas and Brett M. Kavanaugh, wrote that the distinction made no sense.

“The Constitution guarantees the free exercise of religion,” he wrote. “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. But the governor of Nevada apparently has different priorities.”

“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,” Justice Alito wrote.

The court considered a similar objection from a California church in May, and it rejected it by the same 5-to-4 vote. But Justice Alito, who dissented in the earlier case, said the new one was more troubling in light of the differing treatment of casinos and churches.

“That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise,” he wrote, “but this court’s willingness to allow such discrimination is disappointing.”

In a second dissent, Justice Neil M. Gorsuch said the case was simple.

“The world we inhabit today, with a pandemic upon us, poses unusual challenges,” he wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

In his own dissent, Justice Brett M. Kavanaugh agreed that the case was straightforward.

“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,” he wrote. “In other words, Nevada is discriminating against religion.”

In addition to the chief justice, the justices in the majority were Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The church, which said it sought to conduct services with 90 people present — with appropriate social distancing — included a photograph of a large, closely packed and unmasked crowd in Las Vegas in its Supreme Court brief. It said that discriminating against churches violated the First Amendment.

“This is a straightforward case,” lawyers for the church wrote. “If the governor deems it acceptable for secular assemblies to occur at 50 percent capacity at casinos, restaurants, bars, gyms and fitness facilities, indoor and outdoor theme parks, bowling alleys, water parks, pools, arcades and more, he must apply the same 50 percent capacity rule to constitutionally protected worship services.”

In response, state officials wrote that comparable mass gatherings — which they said included those at concerts, movie theaters, museums and trade schools — were treated “the same as or worse than houses of worship.”

“Public attendance is prohibited for all musical performances, live entertainment, concerts, competitions, sporting events and any events with live performances,” the brief by state officials said.

Judge Richard F. Boulware II, of the United States District Court for the District of Nevada, rejected the church’s challenge, noting that the state had imposed similar or more stringent restrictions on concerts, sporting events and musical performances.

“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,” Judge Boulware wrote, quoting from a concurring opinion issued by Chief Justice Roberts in May in the case concerning the California church.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, also cited the Supreme Court’s order in the California case in denying the Nevada church’s request for an injunction while its appeal moved forward.

In his concurring opinion in the California case, Chief Justice Roberts said state officials must have flexibility to make judgments about public health.

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment,” he wrote at the time.

“Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports and theatrical performances, where large groups of people gather in close proximity for extended periods of time,” the chief justice wrote. “And the order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Justices Thomas, Alito, Gorsuch and Kavanaugh noted dissents in the California case.

“The church and its congregants simply want to be treated equally to comparable secular businesses,” Justice Kavanaugh wrote in a dissenting opinion joined by Justices Thomas and Gorsuch. “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.”

“The state cannot,” Justice Kavanaugh wrote, quoting from an appeals court decision in a different case, “‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”