Of dice and clergymen: SCOTUS needs to explain why churches, casinos have different COVID-19 rules
Casinos in Las Vegas are allowed to reopen at 50 percent capacity, even as churches are limited to 50 people or less. Creative Commons photo.
(OPINION) In a 5 to 4 decision on July 25, the Supreme Court denied an application for injunctive relief submitted by a Christian congregation, Calvary Chapel Dayton Valley, in Nevada. In denying this church’s request, the Court refused to assess a troubling scenario where worship services are capped by the state at 50 people, but casinos, bars and similar businesses are able to operate at 50 percent capacity. The church has requested that congregational communities be treated on an equal basis with casinos, being allowed to operate at 50 percent of their capacity while implementing social distancing and other public health measures.
The five Justices who denied the church’s request—Chief Justice Roberts joined the Court’s four liberals—did not give any explanation or analysis. Not giving a reason is not uncommon in emergency requests such as this, but the disparate treatment cries out for explanation. The dissent notes that freedom to exercise one’s faith is a Constitutional protection that deserves more protection than, say, “the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance.”
Justice Alito, joined by Justices Thomas and Kavanaugh, wrote a 24 page dissent stating that they believed injunctive relief should have been granted to Calvary Chapel while the Court weighed in on the case’s merits. Alito wrote that while synagogues, mosques and churches were arbitrarily limited to 50 people in attendance for any religious services regardless of the capacity of their buildings, “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.”
Alito’s dissent notes that the Nevada governor’s preferential treatment of the casino industry is not unpredictable, given the number of people employed by such facilities, but says that the Court’s failure to take up this case, thus enabling the perpetuation of preferential legal treatments for gaming facilities over houses of worship, is “disappointing.”
The dissent further elaborates that under the Court’s interpretation of the Free Exercise Clause of the First Amendment, if limitations to the exercise of religion are not “neutral and generally applicable,” they are subject to a heightened legal standard of strict scrutiny. The Nevada governor’s restrictions are not neutral nor generally applicable, Justice Alito points out. And capping churches with a capacity of thousands to 50 congregants is denying many the opportunity to worship in person.
The privileging of these commercial entities over constitutionally protected religious institutions demonstrates the lack of neutrality inherent in the governor’s order. As the dissent states: “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.” Nevada argued that houses of worship were treated equally to other facilities such as zoos, art museums, aquariums and concert venues, which also had a discrete 50 person limit. Yet, as Alito points out, this argument does not explain or “justify preferential treatment for casinos.”
In addition, Nevada argues that the governor’s directive is appropriate given that the state has more authority and capacity to enforce adherence to these public health guidelines by casinos. The dissent notes, however, that this logic falls flat because it is not substantively more challenging to enforce a 50 percent capacity rule than it is to enforce a 50 person rule, and “there is no reason to think that is so, let alone that it would be compelling enough to justify differential treatment of religion.”
Justice Gorsuch also penned a dissenting opinion. He writes, “This is a simple case. In Nevada, it seems, it is better to be in entertainment than 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.”
David Cortman, Senior Counsel for Alliance Defending Freedom, the group representing the Nevada church, said in an email to the AP that they would continue to advocate against “discriminatory policies that put religious groups at the back of the line for reopening.”
Balancing Spiritual and Public Health
Many religious people and institutions have good faith (pun intended) differences of opinion and belief regarding whether, how and when they ought to meet in person during this pandemic. And this is an important debate to continue to engage in—in a religiously literate, culturally competent, and place-focused way. The needs and circumstances of one spiritual community in rural Nevada may vary from the multifactorial context of another religious group in the center of Las Vegas, for example.
And certainly, there is a place in the midst of a pandemic for legal limitations on the freedom to gather in person for religious services. As Becket Law, a public interest law firm advancing religious freedom for people and communities of all faiths, states: “Americans possess fundamental rights to freely exercise their religion and assemble when doing so. Those rights have always been limited by what is necessary to protect public safety. In the context of a pandemic, this can mean that the government can temporarily limit communal worship if truly necessary, so long as it does so on equal terms with other activities, showing no special disfavor to religion.”
At the same time, upholding the First Amendment, even and especially in moments of deep uncertainty, is essential for the holistic wellbeing of all humans and the institutions they form.
Why? Because elements of the First Amendment protect something fundamental about what it means to be human and express the constellation of capacities with which our Creator has endowed us—speech, assembly, religion, and so on. The First Amendment protects a series of fundamental freedoms and human exercises: freedom of speech, freedom of the press, freedom of religion, freedom of assembly, and freedom to petition the government. Both individuals and institutions need the freedom to fulfill God’s design for them, which allows us to learn something about what it means to be created in God’s image. To do this, the government must ensure the ability of diverse individuals and communities—especially in our pluralistic society—to continue to flourish.
What does this mean in the context of a pandemic? How do we balance the seemingly competing interests or protecting our fundamental freedom to exercise that which we hold most sacred with protecting our collective health?
For Christians, this question strikes at the sacred center of what it means to fulfill what Jesus said were the two greatest commandments: to love God with everything we have and to love our neighbor as ourselves. These are not distinct and mutually exclusive commandments, but intrinsically interlinked and interdependent on one another. The sacred mystery of our faith is that the fruit of loving God is loving our neighbor, and as we love our neighbors, especially the least among us, we know we are loving God himself (Matthew 25:40). One begets the other in an unbroken cycle.
To love God fully in this moment, some faith communities believe they must gather in person to carry out the fullness of what their Creator is calling them to. It is notable that among these are minority faith communities that often face oppression, violence and persecution.
As Emma Green writes for the Atlantic in her article “Orthodox Jewish Women Are Facing an Impossible Choice Right Now,” many Jewish women who practice the laws of niddah believe that during their monthly menstrual cycles and several days after, they are ritually impure and need to practice social distancing from their partners, which limits intimacy, bed-sharing and even the sharing of dishware in some households.
For women to reunite with their partners and families, they must submerge in a mikvah, or ritual bath: “[The] prospect of immersing during the COVID-19 outbreak is terrifying: Many mikvahs are highly trafficked spaces that involve extensive bodily exposure. But the alternatives may seem equally untenable: remaining separate from their partner indefinitely, or violating a central commandment of the Torah.”
The decisions these women observing niddah face are already deeply personal and deeply challenging. Faith-based practices like this are complex and nuanced, both deeply personal and quintessentially communal. They are deeply connected to bodily experiences that cannot be recreated over Zoom.
The last thing these religious communities need are lopsided public health directives that privilege revenue-generating entities over their own First Amendment freedoms. Communities and individuals of faith, and especially those already facing challenging systemic inequities in this moment, need to be treated on an equal basis with other, similarly situated institutions in society. Public justice requires, whether it be in government partnerships or in the application of public health directives, that religious organizations be treated similarly to other institutions.
The old adage “just because you can doesn’t mean you should,” surely has a place in a discussion among spiritual communities about whether they should meet in person. And I will put my cards on the table (pun intended) and say that I am personally in favor of worshipping communities and faith groups being as conservative as possible in their decisions, opting to meet online wherever possible and practicable. However, where a state decides to allow whole commercial sectors to open at 50 percent capacity, my faith calls me to stand up and ask that mosques, synagogues and churches be treated at least as well as casinos and breweries.
Chelsea Langston Bombino is the director of Sacred Sector, an initiative of the Center for Public Justice. Sacred Sector is a learning community for faith-based organizations and emerging leaders within the faith-based nonprofit sector to integrate and fully embody their sacred missions in every area of organizational life.