Religion and the Law

Supreme Court (by 5-4 Vote) Declines to Exempt Nevada Churches from Gathering Size Limits

The dissenting Justices stress that casinos and other establishments are subject to more lenient limits.

|The Volokh Conspiracy |

You can see the dissenting opinions of Justices Alito, Gorsuch, and Kavanaugh here; Justice Alito's opinion is joined by Justices Thomas and Kavanaugh. The Justices in the majority (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan), who decline to issue an injunction pending appellate review, haven't written an opinion (though note that injunctions from the Supreme Court pending appellate review are extraordinary remedies). But you can see the District Court opinion, which the dissenters would have blocked, here.

From Justice Alito's dissent:

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.

And from the state's argument against issuing an injunction:

[G]aming establishments face numerous additional restrictions and regulatory oversight not faced by houses of worship, making them dissimilar activities. Failure for gaming establishments to follow the Emergency Directive risks significant punishment. There is no comparable basis on which non-compliance can effectively be enforced against a house of worship. Instead, houses of worship and other entities impacted by Directive 021 are subject to enforcement by local law enforcement, subject to their prioritization of resources.

Choosing to reopen a highly regulated industry, that is subject to significant regulatory control that allows for a rapid shutdown if a second COVID-19 outbreak arises, makes sense. This policy determination warrants deference from a court, as "[o]ur Constitution principally entrusts '[t]he safety and the health of the people' to the politically accountable officials of the States 'to guard and protect.'" Under these temporary circumstances, Nevada is entitled to deference on its regulated, limited reopening of gaming establishments.

There's a lot more going on here, but I'm afraid I don't have the time to post on it now; if you're interested, have a look at the opinions, and the parties' filings.

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  1. And if you didn’t think the Left was out to get Christians, here is some more evidence. Think hard before you vote this Fall.

    1. injunctions from the Supreme Court pending appellate review are extraordinary remedies.

      1. Yeah, which was granted to homosexual “couples” who wanted to “marry,” because after all, having to wait three months for their trial was an outrageous violation of their rights. Why does “Justice delayed is justice denied” only applicable to gay sex and killing babies?

      2. I see your extraordinary remedy and raise you closing churches is an extraordinary breach of constitutional rights.

        1. Not according to Smith.

          1. But according to the Constitution, it is.

      3. Which they shouldn’t be.

        If it involved rights it should be extraordinarily low.

    2. Roberts is not our friend.

  2. So from now on, bingo will be on Sunday mornings?

  3. IMPEACH ROBERTS!!!!!

    1. I’m thinking that stapled to every telephone pole down Route 131 — the last 10 miles to his vacation home….

      1. Don’t be too mean to him, I hear he’s being blackmailed!

        1. Who knows what those Epstein tapes hold…

    2. I hope he gets COVID.

      1. How is your “civility project” going, Prof. Volokh?

        1. You have no room to criticize anyone about civility, RAK.

    3. The Republicans would have to re-take the House while retaining control of the Senate. I don’t think a reversal in the House is terribly likely this November.

      For a threat to be effective, it has to at least be plausible.

  4. Eugene, I do hope you find the time to further blog about the case.

    We know from your brief in Fulton v. City of Philadelphia, Pennsylvania you believe

    when the law restricts a wide range of behavior, entirely apart from its religiosity, there is no principled way to administer a constitutional exemption system, even when the law also exempts some behavior (again, for reasons entirely apart from religion).

    Do you believe Nevada’s exemptions for casinos. movie houses and other secular activities should not trigger strict scrutiny because the reasons for these exemptions are entirely apart from religion? Or, is there some point at which you think courts can determine the state’s distinction between the exempted secular activity and non-exempted religious activity cannot be justified, such as suggested by Justice Gorsuch that casinos, movie houses and churches equally involve “Large numbers and close quarters?”

  5. Roberts’ judicial philosophy seems to be, “Don’t make waves.”

  6. Sigh…I am reminded of what Professor Josh Blackman wrote. He wrote that the Judiciary is a reactive branch, and very slow. I believe that South Bay United Pentecostal Church v. Newsom was wrongly decided, and in time the SCOTUS will toss it.

    That said, South Bay was not an easy call. The fact that we have a global pandemic happening right now (and then) makes me sympathetic to Roberts’ view on deference to the elected leaders who are in the middle of managing a crisis. He is not wrong about this. But I really hope SCOTUS gets another case where they can ditch South Bay and issue better judicial guardrails around our free exercise rights.

    The suppression of our free exercise rights was simply wrong. That should not have been allowed to stand.

    1. I echo Josh. Churches are not being singled out here.

      I’d have made a different call as a policy matter, but it’s pretty strong medicine to argue that the opposite outcome is Constitutionally mandated. In that it requires overturning some pretty longstanding caselaw.

      1. I dunno; I thought that South Bay was pretty obviously correct, but this one is far more questionable.

        Churches aren’t being singled out, but it does seem like they are being treated worse than at least some comparable secular institutions, and I’m pretty sure that this takes us out of Employment Division territory.

        And I think the state’s argument — that it’s okay to treat heavily regulated institutions better than less regulated ones — is laughable.

        1. Is the standard from Employment Division and Lukumi worse treatment? Or, is it the targeting of religious exercise? I think the latter is closer to being correct and Eugene (and Roberts) appear to agree while Blackman (and Kavanaugh) disagree.

          On the other hand, I think there may be room for some judicial standard when their is worse treatment, but I lean towards that standard being substantially deferential. I haven’t thought it through and was hoping to hear from Eugene.

          We will all have the opportunity to debate this in the next term in Fulton.

          1. Is the standard from Employment Division and Lukumi worse treatment? Or, is it the targeting of religious exercise?

            The standard from Employment Division is neutral laws of general applicability. A law need not explicitly discriminate against a religious group as in Lukumi in order to flunk the Employment Division test; Lukumi doesn’t describe the outer bounds of what’s unconstitutional.

            1. Of course a law need not explicitly target religious exercise in order to be considered not neutral. But as I read Lukumi, such a law must at least implicitly target religious exercise, which is not the standard Kavanaugh advocated for in his dissent.

              1. As should be obvious from the fact that I said that South Bay was correctly decided, I’m not endorsing Kavanaugh’s notion that religious institutions must necessarily be placed in the most favored category (unless strict scrutiny is satisfied).

                But your argument here looks only at the neutral factor, and not the general applicability factor.

                1. As I understand Lukumi, a law that doesn’t exempt only religious exercise is not generally applicable, once again not Kavanaugh’s “most favored category” standard.

                  1. If I understand your comment correctly, you’re still arguing with Kavanaugh rather than me.

      2. Except they clearly are. You are wrong.

  7. Booo….Hiss….Roberts!

  8. sophistry n use of fallacious arguments, often to deceive. e.g. “[G]aming establishments face numerous additional restrictions and regulatory oversight not faced by houses of worship, making them dissimilar activities.”

  9. “Failure for gaming establishments to follow the Emergency Directive risks significant punishment. There is no comparable basis on which non-compliance can effectively be enforced against a house of worship.”

    Just so I’m clear, the state argument is based on not being able to punish people harshly enough, no?

  10. Casinos and movie theatres strike me as a much closer call, giving the dissent’s view more weight, than the businesses at issue in the California case.

    At somepoint, maybe things become similar enough, obvious enough, that a judge can use ordinary common sense and doesn’t need evidence from experts to decide.

    It seems to me that casinos and movie theatres might be that case.

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