Steve July 25, 2020
the-supreme-court’s-surprising-decision-on-churches-and-the-pandemic,-explained

The Supreme Court has ruled, for the second time in the last two months, against a church which sought exemptions from statewide restrictions on houses of worship during the Covid-19 pandemic.

Yet Calvary Chapel Dayton Valley v. Sisolak, a decision handed down on Friday night, is a very different case than South Bay United Pentecostal Church v. Newsom, the decision from May in which the Court also ruled against a church that objected to state public health rules. Both decisions were 5-4, with conservative Chief Justice John Roberts crossing over to vote with his four liberal colleagues, but the church in Calvary Chapel presented a much stronger legal argument than the church in the earlier case.

Calvary Chapel involved a Nevada public health order governing which businesses and institutions are able to remain open during the pandemic, and under what terms these institutions may do so. According to that order, churches may not admit more than 50 people at the same time. Yet other institutions, such as casinos, breweries, bowling allies, and gyms, may operate at 50 percent capacity.

Thus, as Justice Brett Kavanaugh writes in one of three dissenting opinions in Calvary Chapel, “a casino with a 500-person occupancy limit may let in up to 250 people,” but “a church with a 500-person occupancy limit may let in only 50 people.” The plaintiff church argued that this disparate treatment is unconstitutional — and, under existing Supreme Court precedents, it presented a strong case.

Churches cannot be singled out for inferior treatment

The general rule in religion cases such as Calvary Chapel is that people of faith have to follow a “valid and neutral law of general applicability.” That is, churches typically cannot claim special exemptions from the same laws that apply to anyone else. If other local businesses and gathering places have to comply with the local fire code, churches typically will have to do so as well.

But the government typically may not single religious institutions out for inferior treatment that it does not impose on secular institutions. A state could not, for example, require places of worship to install an elaborate and expensive fire suppression system unless similar institutions were also required to install such a system.

Both Calvary Chapel and South Bay involved this distinction between laws of general applicability and laws that treat churches differently than similar institutions. South Bay, however, was a fairly easy case because, if anything, the California public health rules at issue in that case gave places of worship more favorable treatment than similarly situated businesses.

California planned to reopen businesses and other institutions in four stages. By the time South Bay reached the Supreme Court, retail businesses and many workplaces had reopened, albeit with restrictions. Most places where groups of people gather in auditorium-like settings, such as movie theaters and live concerts, remained closed. But places of worship were allowed to reopen at limited capacity.

Thus, churches were treated more favorably than similarly situated businesses, as they were allowed to reopen sooner than other places where groups of people gather in auditorium-like settings.

As Chief Justice Roberts wrote in an opinion explaining why he voted against the church in that case, “although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” Whatever restrictions California placed on churches, “similar or more severe restrictions apply 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.”

Thus, Roberts reasoned, California’s public health order could remain in effect without any additional accommodations for places of worship. Yes, the state did allow some businesses to open with fewer restrictions than those imposed on churches, but the secular institutions most similar to places of worship were treated less favorably than comparable religious institutions.

The constitutional case supporting Nevada’s public health order is much weaker than the case supporting California’s order

Unlike the public health order at issue in South Bay, however, the Nevada order at the heart of Calvary Chapel does not treat churches more favorably than similar institutions. Indeed, there’s a plausible argument that Nevada does single out places of worship for inferior treatment that’s not imposed on many comparable secular spaces.

As Justice Samuel Alito writes in an unusually persuasive dissenting opinion, “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.” Significantly, it also appears that casinos are allowed to host auditorium-style events with a greater capacity than the 50-person limit imposed on churches. According to Alito, some casinos currently feature “not only gambling but live circus acts and shows.”

Similarly, Alito claims, “some Las Vegas bowling alleys where tournaments are held can seat hundreds of spectators, and under the directive, these facilities may admit up to 50% of capacity.”

The plaintiff church in Calvary Chapel, in other words, presents a much stronger case than the church in South Bay. It’s one thing for a state to say that auditorium-style gatherings of all kinds endanger the public health, so no such gatherings are permitted. But it’s tough to argue that a gathering of 100 people in a church, mosque, or synagogue is more dangerous than a similar gathering of 100 people to watch a bowling tournament.

So why did Roberts vote against the church in this case?

The Supreme Court just completed a contentious term in which it handed down some significant legal victories for the religious right. The Court’s Republican majority, which includes Roberts, is often quite sympathetic to religious objectors who claim they should not have to follow laws that burden their religious beliefs. So it’s more than a little surprising that the church did not prevail in Calvary Chapel.

The five justices in the majority, moreover, did not explain their votes in Calvary Chapel. Rather, the majority disposed of this case in a one-sentence order: “The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.”

That said, Roberts did publish an opinion explaining his vote in South Bay, and that opinion provides a window into why the conservative chief justice may have voted the way he did in Calvary Chapel.

“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”

Unlike his fellow Republican justices, in other words, Roberts appears to believe that courts have a particularly strong duty to defer to democratically accountable officials during an historic public health crisis.

It should be noted that Roberts’s deference to “the politically accountable officials of the States” does not always cut in favor of public health — or, for that matter, in favor of democracy. Roberts has thus far rejected attempts to make it easier for voters to cast an absentee ballot during a pandemic. It appears that, if state and local officials force voters to risk infection in order to cast a ballot, Roberts will do little, if anything, to stop them.

But Roberts does generally appear to be more deferential than his most conservative colleagues to state officials who are trying to reduce the spread of Covid-19. Indeed, as Calvary Chapel shows, he appears to be willing to defer to these officials even when they hand down public health orders that draw constitutionally dubious lines.


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