Five members of the U.S. Supreme Court have shuffled the Constitution’s principles beyond recognition.
On July 25, the court’s five liberals — counting Chief Justice John Roberts, who has gone almost entirely native in liberal Washington — effectively ruled that casinos can be given less restrictive coronavirus-related mandates than those imposed on churches. The Nevada rule disfavoring churches is a mind-boggling assault on the free exercise of religion.
As is often the case with such emergency petitions, the court majority offered no explanation for its dismissal of a church’s appeal of Nevada’s rule. The court’s four conservatives, however, rightly excoriated their liberal brethren.
Nevada’s rule is particularly irrational. It restricts church services to no more than 50 people on site no matter how large the facility they are using is. Meanwhile, it allows casinos to operate at up to 50% of normal capacity, meaning in some cases that thousands of people can be indoors at the same site.
“The First Amendment prohibits such obvious discrimination against the exercise of religion,” wrote Justice Neil Gorsuch. “There is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Justices Samuel Alito and Brett Kavanaugh also wrote excellent, longer dissents (Clarence Thomas joined Alito’s), but Gorsuch was correct in pithily observing that “this is a simple case.” It should have been simple, but the liberals got it sickeningly wrong.
Gorsuch’s observation stands even after one tries to give Roberts some credit for explaining himself in a similar California case earlier this year. In that case, Roberts had joined the liberals in allowing restrictive limits on church attendance, explaining that in exercising emergency powers necessitated by a pandemic, local officials “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
Roberts’s California ruling was of dubious validity, but at least he made the fair point in his opinion that the rule in that case applied equally “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 Nevada case, however, is quite different. The casinos, unlike the “secular gatherings” in California, clearly are being afforded different, far less restrictive rules than churches even though both involve attendees remaining inside for extended periods of time. Indeed, casinos by this logic are even more dangerous because people circulate from one spot to another rather than remaining “distanced” within assigned seats or pews.
Either way, the Nevada governor’s order turns the Constitution on its head. The First Amendment provides special protections to religious exercise, but the governor’s order actively disfavors religious attendance in a way that it does not do to secular activity. As Alito wrote, “The governor’s directive specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people.”
For years, left-leaning jurists have exhibited hostility toward free exercise of religion, but Roberts until this year did not join them. Except in a very few cases, though, ones where he could secure support from at least one other liberal, Roberts in the past year has completed his shift leftward, becoming the centermost liberal justice rather than in any real way even a moderate conservative.
This case is his worst ruling of all because the discrimination against religion here is so blatant. From this point forward, any conservative reliance on Roberts as an ally is no better than a crap-shoot.
