Earlier this year, Calvary Chapel in Nevada went to court to oppose Democrat Governor Steve Sisolak’s order limiting church attendance to a maximum of fifty people. After losing out in a lower court, the church received even more bad news from the Supreme Court yesterday in a 5-4 ruling in favor of the Governor. It was an unsigned order, but the breakdown of the vote was obvious. The dissent was signed by Thomas, Alito, Kavanaugh and Gorsuch. In other words, Chief Justice John Roberts once again sided with the court’s four liberal justices against a church fighting an executive order, just as he previously did in a similar case out of California.
The US Supreme Court on Friday denied a petition from a church in Nevada that argued a policy limiting in-person church attendance to 50 during the coronavirus pandemic violated the Constitution.
The decision was 5-4.
The church argued that the state policy treated church services differently from other large gatherings including casinos, gyms and restaurants.
A lower court had ruled against the church.
I’ll take a stab at interpreting the Chief Justice’s motives in a moment, but this ruling still came as a surprise to me because it sounded like a no-brainer. The Governor’s rule didn’t apply to a variety of exercises in commerce… including movie houses and casinos. The order draws a distinction between “mass gatherings” and “individual engagement in commerce.” In the Governor’s mind, churches fall under the former while casinos are included in the latter.
The conservative justices took turns whacking that pinata in arguments revolving around both First Amendment considerations and common sense. Alito noted that the Constitution assures the free exercise of religion but is completely silent on “the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance.” (Shouldn’t that have been obvious from the start?) Gorsuch wrote that “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
In reality, Governor Sisolak’s orders appear far more deeply rooted in budgetary concerns than either medical or constitutional ones. Without gambling, Nevada’s state economy is in the poor house. Churches, on the other hand, do little or nothing to swell the state’s coffers. Therefore, the health risks associated with having 51 people attending a church service vastly outweigh the minimal dangers of several hundred people gathering around slot machines and craps tables.
How the church lost this 5-4 ruling remains something of a mystery, but John Roberts was the pivot point in this see-saw yet again. We already know that the Chief Justice is more worried about public perceptions of his court being divided along ideological lines than almost anything else. Without having Kennedy to take the blame anymore, he’s clearly decided to take that role for himself. At this point, it seems increasingly likely that he’s just flipping a coin when the various Left vs. Right cases land in his lap, siding with the liberals as often as the conservatives just to maintain the illusion that the court is one big, happy, bipartisan family. The reality is that it’s just the opposite.
Roberts has already burned conservatives on abortion, immigration and LGBTQ issues. But then he’s turned around and sided with the conservative justices on different immigration questions, cake-baking issues and the limits of the President’s executive powers. There’s very little rhyme or reason to this. But this lack of consistency will eventually lead to many more questions about Roberts’ leadership skills than any concerns over the appearance of partisanship.