The Supreme Court late Friday denied an emergency application for an injunction submitted by a Nevada church alleging infringement of their First Amendment rights by Governor Steve Sisolak’s executive order limiting church capacity to no more than 50 persons in light of the COVID-19 pandemic.
Calvary Chapel Dayton Valley church asked the court to intervene after a lower court denied their claim that the order violated their freedom of religious expression. The church contended that the order discriminated against religion while favoring secular gatherings, such as casinos, gyms, restaurants, and bars, which are allowed to operate at 50% capacity. The district court and the Ninth Circuit Court of Appeals both rejected the church’s argument, holding that commercial activities are different in nature from attendance at a church service, and that casinos in particular are subject to much stricter regulation, and face much harsher penalties, than churches do under the executive orders. They also noted that churches fare the same or better than similar secular activities like lectures or movie theaters.
The majority of the Justices denied the application without publishing an opinion, while Justices, Alito, Thomas, Gorsuch, and Kavanaugh, dissented. Justice Alito’s dissent, joined by Thomas and Kavanaugh, accused the Court and the state of Nevada of favoring commercial activity over freedom of religious expression. Alito emphasized the logical contradictions in allowing casinos to operate at 50% capacity, which could mean thousands of people inside, many of whom have traveled to Nevada from all across the country, while the church is forbidden from having more than 50 people in attendance, most if not all of whom are local and could appropriately socially distance.
In a separate, single paragraph dissent, Justice Gorsuch noted that while the coronavirus pandemic “poses unusual challenges . . . there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.” Justice Kavanaugh also filed a separate dissent, in which he pointed out that transmission rates at casinos and churches are roughly the same, and that while it would be permissible for Nevada to impose the same restrictions on both secular and religious activities, it is unconstitutional to impose stricter restrictions on churches while having looser standards for casinos and restaurants.
Nevada has nearly 41,000 confirmed cases of COVID-19, with 722 confirmed deaths from the disease.