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High court’s order on Nevada church draws dissent

WASHINGTON (BP) — Religious freedom advocates and four justices expressed strong disagreement with the U.S. Supreme Court’s refusal to grant relief to a church seeking equal treatment under Nevada’s coronavirus (COVID-19) restrictions.

The high court denied July 24 a request from Calvary Chapel Dayton Valley (Nev.) to block enforcement of Gov. Steve Sisolak’s order that limits religious gatherings to 50 worshipers regardless of the size of the building. Meanwhile, his directive permits casinos, gyms, bowling alleys and some other venues to operate at 50 percent capacity regardless of their size.

The Supreme Court’s majority — which consisted of Chief Justice John Roberts and the four members who comprise the court’s liberal wing — rejected the request for an injunction without comment. Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh disagreed in a combination of three dissenting opinions.

The high court’s rejection of the emergency application is another in a series of incidents in which churches and other religious groups have expressed concerns during the pandemic about state and local policies that appear biased against their meetings.

Southern Baptist religious freedom advocate Russell Moore said he was “saddened and disappointed” the high court “did not take this opportunity to bring sanity into this dispute over religious exercise in Nevada.”

“As a nation, we are all facing an unprecedented global pandemic, and we must all work together to combat this virus,” said Moore, president of the Ethics & Religious Liberty Commission. Essentially every court and nearly every religious organization has agreed the government “has legitimate rights and obligations to protect public health in an emergency such as this,” he said.

“Every restriction, though, must be both rooted in compelling interest and be consistently applied,” Moore said in a written statement. “Nevada from the start should have relied on pastors and religious leaders to be partners in combating COVID-19 as they have apparently done with casino magnates. Nevada’s insistence on treating churches differently than casinos is inexplicable and must stop.”

Alliance Defending Freedom (ADF), which is representing Calvary Chapel in the case, expressed its disappointment but said it would continue its effort to protect the churches from discrimination.

“The First Amendment requires the government to treat religious organizations, at a minimum, the same as comparable secular organizations,” ADF Senior Counsel David Cortman said in a written release. “When the government treats churches worse than casinos, gyms, and indoor amusement parks in its COVID-19 response, it clearly violates the Constitution.”

In his dissent, Alito said the fact 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.”

The church is “very likely” to be successful, Alito wrote, in claiming the directive’s “discriminatory treatment of houses of worship violates the First Amendment,” which includes protections for free exercise of religion and freedom of speech.

Thomas and Kavanaugh joined Alito in his dissent.

Meanwhile, Gorsuch said in a separate, one-paragraph dissent, “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.”

In its appeal to the Supreme Court, Calvary Chapel said it has established health-and-safety guidelines in preparation for corporate worship that include restricting attendance to 50 percent of the capacity required by the fire code, mandating six feet between different households and limiting the length of Sunday services to 45 minutes.

A federal court and the Ninth Circuit Court of Appeals each had previously denied Calvary Chapel’s motion for an injunction. The case will return to federal court for consideration on the merits of the church’s arguments.

Southern Baptist leaders commended guidelines issued May 22 by the federal Centers for Disease Control and Prevention (CDC) for restoring in-person worship gatherings. The guidance reminded state and local officials to take the First Amendment right of religious liberty into account when they institute re-opening policies. No church or other religious group should be called on to enact “mitigation strategies” stricter than those requested of “similarly situated entities or activities,” according to the CDC.

The overwhelming majority of churches and other religious bodies have abided by government policies during the pandemic. This has resulted in such alternatives to in-person, corporate worship as online and drive-in services. Many Southern Baptist and other churches have resumed in-person worship in recent weeks while following government guidelines, but others have returned to online services at the request of civic officials in response to increases in COVID-19 cases.