SCOTUS Scuttles Equal Treatment for Nevada’s Churches

by Annie Black
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(Annie Black) – On Friday, a divided U.S. Supreme Court, in a 5-4 decision, refused to force Nevada Gov. Steve Sisolak to treat the state’s churches the same way it treats various non-religious businesses under his authoritarian “emergency” orders.

As has been the case in all too many recent and important decisions, Chief Justice John Roberts, appointed by President George W. Bush, sided with the Court’s four left-wing justices in sticking it to Nevada’s places of worship.

To be clear, the case against Gov. Sisolak’s clearly discriminatory order remains alive.  What SCOTUS did on Friday was refuse to allow churches to reopen at 50 percent capacity – like various other businesses – until the case is finally resolved.

That said, and while news reports have quoted bits and pieces of the dissenting views of Justices Sam Alito (joined by Justice Clarence Thomas), Neil Gorsuch and Brett Kavanaugh, their opinions are worthy of far greater quotation.

Let’s start with Justice Gorsuch, whose dissent was short, sweet and powerful…

“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.”


Next up: Justice Alito’s extensive dissent shredding Gov. Sisolak’s discriminatory edict, though I’m only reprinting pertinent excerpts here, absent all the legal mumbo-jumbo…

“The Constitution guarantees the free exercise of religion.  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.

“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 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.

“In addition to asking congregants to adhere to proper social distancing protocols, it intends to cut the length of services in half. It also plans to require six feet of separation between families seated in the pews, to prohibit items from being passed among the congregation, to guide congregants to designated doorways along one-way paths, and to leave sufficient time between services so that the church can be sanitized.

“According to an infectious disease expert, these measures are ‘equal to or more extensive than those recommended by the CDC.’

“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.’  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.

“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.

“But 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.

“For Las Vegas casinos, 50% capacity often means thousands of patrons, and the activities that occur in casinos frequently involve far less physical distancing and other safety measures than the worship services that Calvary Chapel proposes to conduct. Patrons at a craps or blackjack table do not customarily stay six feet apart. Casinos are permitted to serve alcohol, which is well known to induce risk taking, and drinking generally requires at least the temporary removal of masks.

“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, and the State’s efforts to justify the discrimination are feeble.

“And while the State suggests that it strictly enforces the rules applicable to casinos, photos and videos taken in casinos after they were allowed to reopen show widespread and blatant safety violations.

“Calvary Chapel has also brought to our attention evidence that the Governor has favored certain speakers over others. When large numbers of protesters openly violated provisions of the Directive, such as the rule against groups of more than 50 people, the Governor not only declined to enforce the directive but publicly supported and participated in a protest.

“Public protests, of course, are themselves protected by the First Amendment, and any efforts to restrict them would be subject to judicial review. But respecting some First Amendment rights is not a shield for violating others. The State defends the Governor on the ground that the protests expressed a viewpoint on important issues, and that is undoubtedly true, but favoring one viewpoint over others is anathema to the First Amendment.

“Having allowed thousands to gather in casinos, the State cannot claim to have a compelling interest in limiting religious gatherings to 50 people – regardless of the size of the facility and the measures adopted to prevent the spread of the virus.

“And even if the 50-person limit served a compelling interest, the State has not shown that public safety could not be protected at least as well by measures such as those Calvary Chapel proposes to implement.

“Preventing congregants from worshipping will cause irreparable harm, and the State has made no effort to show that Calvary Chapel’s plans would create a serious public health risk.  I would issue an injunction barring the State, pending appeal, from interfering with worship services conducted at Calvary Chapel in accordance with its stated plan and the general facemask requirement.

This quote from Justice Alito bears repeating: “We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.

For his part, Justice Kavanaugh echoed Justice Alito’s opinion and added…

“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.

“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.

“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.

“Nevada has now had more than four months to respond to the initial COVID–19 crisis and adjust its line-drawing as circumstances change. Yet Nevada is still discriminating against religion. Nevada applies a strict 50-person attendance cap to religious worship services, but applies a looser 50% occupancy cap to secular organizations like restaurants, bars, casinos, and gyms.

“Nevada undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens. But it does not have a persuasive public health reason for treating churches differently from restaurants, bars, casinos, and gyms.

“Calvary Chapel is happy to abide by the same 50% occupancy cap or some stricter across-the-board standard, as the State sees fit, so long as the same standard applies to those secular businesses. And the Church has committed to social distancing, mask requirements, and certain voluntary safety measures.

“The State has not explained why a 50% occupancy cap is good enough for secular businesses where people congregate in large groups or remain in close proximity for extended periods – such as at restaurants, bars, casinos, and gyms – but is not good enough for places of worship.

“Again, it does not suffice to point out that some secular businesses, such as movie theaters, are subject to the lesser of a 50-person or 50% occupancy cap. The legal question is not whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with.

“And Nevada has not advanced a sufficient public health rationale for that decision. To reiterate, the State has substantial room to draw lines, especially in an emergency or crisis. But Nevada has not demonstrated that public health justifies taking a looser approach with restaurants, bars, casinos, and gyms and a stricter approach with places of worship.

“It is understandable for the State to balance public health concerns against individual economic hardship. Almost every State and municipality in America is struggling with that balance. After all, if preventing transmission of COVID–19 were the sole concern, a State would presumably order almost all of its businesses to stay closed indefinitely. But the economic devastation and the economic, physical, intellectual, and psychological harm to families and individuals that would ensue (and has already ensued, to some extent) requires States to make tradeoffs that can be unpleasant to openly discuss.

“COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services. There are certain constitutional red lines that a State may not cross even in a crisis.

“Nevada’s COVID–19-based health distinction between (i) bars, casinos, and gyms on the one hand, and (ii) religious services on the other hand, defies common sense. As I see it, the State cannot plausibly maintain that those large secular businesses are categorically safer than religious services, or that only religious services – and not bars, casinos, and gyms – entail people congregating in large groups or remaining in close proximity for extended periods of time.

“In any event, the State has not yet supplied a sufficient justification for its counterintuitive distinction.

“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. In other words, Nevada is discriminating against religion. And because the State has not offered a sufficient justification for doing so, that discrimination violates the First Amendment.

“I would grant the Church’s application for a temporary injunction.”

Courts matter.  Judges matter.  A 5-4 liberal majority on the Supreme Court matters.

If you agree with the opinions of Justices Alito, Thomas, Gorsuch and Kavanaugh; if you want to protect and preserve the constitutional liberties our Creator endowed us with, you MUST vote to re-elect President Donald Trump in November.

Any vote for anyone other than President Trump is a vote to destroy the United States of America as we know it for future generations.


“If the media seriously wanted to report the news – instead of spinning it – they could stop calling rioters ‘protesters.'” – Thomas Sowell

Annie Black is a Mesquite City Councilwoman and Assemblywoman-elect for Nevada State Assembly District 19.  You can get more information by visiting 

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