But the court’s four most consistent conservatives made their objections clear in three lengthy dissents.
“The world we inhabit today, with a pandemic upon us, poses unusual challenges,” Justice Neil M. Gorsuch wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh also dissented.
“The Constitution guarantees the free exercise of religion,” Alito said in a dissent joined by the other two. “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.”
Alito added: “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.”
The Supreme Court in May rejected a similar challenge to California’s restrictions, saying local and state officials deserved some leeway in balancing constitutional rights such as freedom of religion with government’s responsibility to protect the public in a pandemic.
In that case, Roberts said judges should defer to local and state officials who are faced with a historically difficult task of preventing the deadly virus while attempting to reopen sectors of American society that have been shuttered for weeks.
Protecting public health is a “dynamic and fact-intensive matter subject to reasonable disagreement, but one the Constitution principally entrusts to elected officials,” Roberts wrote at the time.
Generally, he said, “they 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.”
But Calvary Chapel Dayton Valley said the restrictions put in place by Gov. Steve Sisolak (D) treated other places where people gathered for extended periods differently from churches.
“Calvary Chapel only seeks to host about 90 people at a socially-distanced church service, while the governor allows hundreds to thousands of people to gamble and enjoy entertainment at casinos,” said the brief filed by the Alliance Defending Freedom, a conservative religious law organization representing the church.
The directive, which has been extended until the end of July, “allows large groups to assemble in close quarters for unlimited periods at casinos, gyms, restaurants, bars, indoor amusements parks, bowling alleys, water parks, pools, arcades, and more subject only to a 50%-fire-code capacity limit. But the directive limits gatherings at places of worship to 50 people max, no matter their facilities’ size or the precautions they take,” the brief said.
The church said accommodations such as the ability to hold open-air or drive-in services was not enough. The church routinely held two Sunday services capable of accommodating up to 200 people and has not been able to meet for three months.
“If a body of believers fails to hold in-person gatherings, Calvary Chapel views it as ceasing to be a church in the biblical sense,” the church said in its brief.
Sisolak replied that with coronavirus cases on the rise across the country, this is not the time to second-guess the state’s response. “Whether Nevada will have to step back further from its attempted reopening, as other states have had to in recent days, remains unclear but is certainly possible,” the state said in its response to the court.
“Religious organizations, the state said, “are being treated the same or better than mass gatherings of the general public.”
The state noted that lower courts had rejected the church’s comparisons to casino reopenings, or the state’s allowance of mass protests regarding the killing of George Floyd, one of which the governor attended.
“Gaming establishments in Nevada already faced numerous additional restrictions not faced by houses of worship to qualify for greater occupancy,” the state’s brief said. “Gaming in Nevada is subject to regular, ongoing restrictions and enforcement in a manner more extensive than any religious gathering or ordinary business.”
In order to reopen, casinos had to agree on restrictions on social distancing, employee training, regular inspection, and specific enforcement and punishment for violating the directive, the state said.
As for protests, the state said they are factually distinct from indoor religious worship services.” U.S. District Court Judge Richard F. Boulware II agreed with the state that “outdoor protests involve dynamic large interactions where state officials must also consider the public safety implications of enforcement of social distancing.”
In its May decision, Roberts said the question for the court is whether similar activities are treated equally. In that case, California imposed similar or more restrictive requirements on comparable secular gatherings, such as lectures, concerts, sports events and theatrical performances, where large groups of people gather in close proximity for extended periods of time, he wrote.
The court’s four liberal justices did not endorse Roberts’s reasoning, but agreed with the outcome.