I was asked to write an article about the case involving a Nevada church and the order of the Nevada Governor limiting the size of their worship services. As frequently happens, a little research showed that most of the reports bear little resemblance to what actually happened.
Most of the news I found resembled this AP article from The Tennessee Star:
RENO, Nevada (AP) — A sharply divided U.S. Supreme Court denied a rural Nevada church’s request late Friday to strike down as unconstitutional a 50-person cap on worship services as part of the state’s ongoing response to the coronavirus.
US Supreme Court Denies Nevada Church’s Appeal of Virus Rule – The Tennessee Star
The title and opening paragraph of the article are blatantly misleading. The article goes on to poorly describe how the members of the court voted, and spent several paragraphs describing the dissenting opinions. It isn’t until paragraph 10 you find out this was not a final opinion of the court, but the decision not to issue an injunction while the case is being heard.
What Really Happened
From court documents I found that Calvary Chapel Dayton Valley is suing (notice the present tense) Governor Steve Sisolak. The church brought suit in federal district court, which refused to grant them relief. While the case is pending appeal, the church applied to the Ninth Circuit Court for an injunction allowing them to hold worship services under the same capacity restrictions as the governor’s order places on several secular gatherings, including casinos. The Ninth Circuit denied the request for an injunction. The church then appealed to the Supreme Court of the United States for an injunction. It was that request that was denied by the court on July 24th. The justices who concurred with the denial did so without comment, but the opposing justices published interesting dissents.
Alito Dissent
Since the court did not comment on why they denied the injunction, the only information I could find on the Supreme Court website came from the dissenting judges.
Calvary Chapel Dayton Valley is a church located in rural Nevada. It wishes to host worship services for about 90 congregants, a figure that amounts to 50% of its fire-code capacity. In conducting these services, Calvary Chapel plans to take many precautions that go beyond anything that the State requires. … Yet hosting even this type of service would violate Directive 21, Nevada Governor Steve Sisolak’s phase-two reopening plan, which limits indoor worship services to “no more than fifty persons.” ECF Doc. 38–2, §11. Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship.
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL. – Alito Dissent
As Justice Alito notes, religious services are being targeted for greater restrictions than other, non-religious activities. While the state places caps on many gatherings at 50% of their operating capacity, Directive 21 restricts worship services to no more than 50 persons regardless of the size of the facility.
Effective 12:01 am on May 29, 2020, consistent with other Directives on public gatherings, houses of worship may conduct indoor in-person services in a manner so that no more than fifty persons are gathered, and all social distancing requirements are satisfied.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 11
The same order placed restrictions based on a percentage of their fire-code operating capacity on numerous businesses and other activities.
All businesses that engage in retail sales may continue to provide retail sales on a curbside or home delivery basis, or allow onsite customer access, with a maximum occupancy of 50% based on listed fire code capacity.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 17
Effective 12:01 am on May 29, 2020, non-retail indoor venues, including without limitation, indoor movie theaters, bowling alleys, or arcades may reopen to the public. Indoor movie theaters operating pursuant to this section must ensure that occupancy shall not exceed the lesser of 50% of the listed fire code capacity or fifty persons, and implement measures to ensure that all social distancing requirements are satisfied. All other businesses operating pursuant to this section must ensure that occupancy shall not exceed 50% of the listed fire code capacity, and implement measures to ensure that all social distancing requirements are satisfied.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 20
Section 18 of Directive 018 is hereby amended to provide that effective 12:01 am on May 29, 2020, breweries, distilleries, and wineries not licensed to serve food may open to the public subject to the following provisions:
1. Bartenders, waitresses, and other employees must wear face coverings.
2. The maximum occupancy of these establishments during Phase Two shall not exceed 50% of the listed fire code capacity.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 26
Effective 12:01 am on May 29, 2020, gyms, fitness facilities, and fitness studios, including but not limited to dance and yoga studios, may reopen to the public. … Establishments providing services to more than ten patrons at a time shall limit customer access so as not to exceed a maximum occupancy of 50% based on listed fire code capacity.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 28
Effective 12:01 am on May 29, 2020, museums, art galleries, zoos, and aquariums may reopen to the public. Capacity at these facilities shall be limited to the lesser of 50% based on listed fire code capacity or fifty persons.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 30
Effective 12:01 am on May 29, 2020, body art and piercing facilities may reopen to the public, subject to the following provisions:
Capacity at these facilities shall be limited to a maximum occupancy of 50% based on listed fire code capacity.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 31
Effective 12:01 am on May 29, 2020, trade schools and technical schools may reopen to the public. Occupancy in classrooms and instructional areas at schools operating pursuant to this Section shall be limited to the lesser of 50% of maximum occupancy of based on listed fire code capacity or fifty persons, and must abide by all guidelines promulgated by NV OSHA.
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 32
So while indoor businesses such as retail stores, bowling alleys, arcades, breweries, distilleries, gyms, fitness centers, body art and piercings facilities, trade and technical schools and, it appears, casinos, are allowed to operate at 50% of occupancy, while churches, synagogues, and mosques are limited to 50 persons, along with movie theaters and museums. For large congregations that have facilities for hundreds, if not thousands of people, a 50 person limit does seem overly restrictive. While the 50 person limit also applies to movie theaters and museums, the Constitution of the State of Nevada does not protect those activities. It does, however, protect the free exercise of religion.
Liberty of conscience. The free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State,
THE CONSTITUTION OF THE STATE OF NEVADA – Section 4
Justice Alito continues in his dissent:
The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or black- jack, 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. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy— and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.
That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL. – Alito Dissent
It really isn’t surprising that the state of Nevada would favor the gaming industry. However I am not surprised that the court is willing to allow discrimination, as I have documented several instances of the court doing exactly that. The U.S. Constitution protects the free exercise of religion from federal infringement, not state infringement.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
U.S. Constitution, Amendment I
It is the Nevada Constitution that protects the rights of the people of Nevada, and the federal judiciary has no jurisdiction over a case involving a state and a citizen of that state unless it actually involves the U.S. Constitution.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
U.S. Constitution, Article III, Section 2
While Justice Alito recognizes the Governor’s claim of unbounded power to infringe on rights, I wish he would have spent more time using that argument to protect the rights of the congregants of Calvary Chapel.
Gorsuch Dissent
Alito is not the only justice to voice his dissent in this case.
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.
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL – Gorsuch Dissent
Gorsuch is mistaken about the “10-screen ‘multiplex'”, seeing as section 20 of Directive 21 states:
Effective 12:01 am on May 29, 2020, non-retail indoor venues, including without limitation, indoor movie theaters, bowling alleys, or arcades may reopen to the public. Indoor movie theaters operating pursuant to this section must ensure that occupancy shall not exceed the lesser of 50% of the listed fire code capacity or fifty persons,
DECLARATION OF EMERGENCY DIRECTIVE 021 – PHASE TWO REOPENING PLAN – Section 20
He does provide a vivid description of the discrimination taking place in Nevada. Sadly, as with other judges, he places the opinions of other courts (that the First Amendment applies directly to the states) above the actual language of the amendment.
Kavanaugh Dissent
Justice Kavanaugh also provides fodder for why section 11 of Directive 21 is problematic:
Under its current reopening plan, Nevada allows restaurants, bars, casinos, and gyms to grant entrance to up to 50% of their total occupancy limit—no matter how many people that may be. For example, a casino with a 500-person occupancy limit may let in up to 250 people. By contrast, places of worship may only take in a maximum of 50 people, without exception, regardless of the occupancy cap. So unlike a casino next door, a church with a 500-person occupancy limit may let in only 50 people, not 250 people. Nevada has offered no persuasive justification for that overt discrimination against places of worship. The risk of COVID–19 transmission is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed, people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services. And given the safety measures that Calvary Chapel and other places of worship are following—including social distancing, mask wearing, and certain additional voluntary measures—it is evident that people interact with others at restaurants, bars, casinos, and gyms at least as closely as they do at religious services.
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL – Kavanaugh Dissent
In my view, Nevada’s discrimination against religious services violates the Constitution. To be clear, a State’s closing or reopening plan may subject religious organizations to the same limits as secular organizations. And in light of the devastating COVID–19 pandemic, those limits may be very strict. But a State may not impose strict limits on places of worship and looser limits on restaurants, bars, casinos, and gyms, at least without sufficient justification for the differential treatment of religion. As I will explain, Nevada has thus far failed to provide a sufficient justification, and its current reopening plan therefore violates the First Amendment.
Justice Kavanaugh adds an interesting twist to our review. He claims that the state has the authority, due to the severity of the situation, to place limits on religious organizations, and that this would not violate the First Amendment since he is applying it to the states. That directly contradicts what the First Amendment says.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
U.S. Constitution, Amendment I
It doesn’t say “Congress shall make no law… unless there’s an emergency” or “unless the government has a compelling interest”. It simply says Congress shall make no law. If that is extended to the states, it means any law that grants the Governor the authority to prohibit the free exercise of one’s religion, including gathering at worship services, is repugnant to the Constitution and therefore void.
Justice Thomas
Although Justice Thomas did not write his own dissent, he joined in Alito’s dissent, so I want to make a point here. Several times I have reviewed cases where Justice Thomas notes that the original intent of the First Amendment was that it did not apply to the states. Yet here he is, joining a dissent that applies the First Amendment to the states. I’m sorry, Mr. Thomas, but you cannot have it both ways. Either the First Amendment applies only to Congress, and therefore to the federal government, or it does not.
Conclusion
This case does bring up some interesting questions. On the one hand, as Justice Alito mentions, it is quite obvious that the governor’s order is discriminatory against religious services, does irreparable harm to Calvary Chapel, and is a violation of the congregants’ rights to freely exercise their religion.
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.
CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL. – Alito Dissent
However, since this is not based on an act of Congress, it is not a violation of the First Amendment to the U.S. Constitution and therefore not within the purview of the federal judiciary. An argument could be made that it is a violation of the 14th Amendment’s Privileges and Immunities Clause, but that would be a stretch, especially since Calvary Chapel apparently did not attempt to sue in Nevada state court.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
U.S. Constitution, Amendment 14
I, like Justice Thomas, want to have an injunction issued. Those who attend Calvary Chapel are suffering irreparable harm due to the actions of the Nevada Governor, but that does not give the courts the authority to go beyond their constitutionally assigned jurisdiction. The best I think I could do, if I were on the court, would be to issue the injunction, not on the basis of the First Amendment, but on the 14th. The privilege, both of the exercise of religion and assembly, protected by the Nevada Constitution of the citizens of the state of Nevada, are being abridged and the plaintiff is suffering irreparable harm. On that basis I would have issued the injunction to protect the citizens of the state of Nevada until the case could be heard in the Ninth Circuit, and possibly extended until it is heard by the Supreme Court.
