Calvary Chapel Dayton Valley v. Sisolak, Governor of Nevada, No. 17A1070 (July 24, 2020).
A rural Nevada church asked the Supreme Court to enjoin state pandemic emergency measures that impose a flat numeric limit on church attendees while commercial entities such as casinos may operate at a percentage of capacity, permitting close contact for extended periods.
The Supreme Court denied, without opinion, Calvary Chapel Dayton Valley’s request. Four justices submitted three dissenting opinions.
Justices Alito, Thomas and Kavanaugh would grant relief, given the inexplicable and unsupported discrepancy in treatment between secular and religious gatherings as well as the irreparable harm presumed to flow from deprivation of First Amendment rights.
The justices observed that while “…a public health emergency does not give Governors and others carte blanche to disregard the Constitution for as long as the medical problem persists.” (Alito dissent, p. 3.) Particularly as time has passed since the emergency initially arose, and new information may permit revisions, the issue of exigency has diminished while the impact of discrimination against religion has continued unabated.
The state’s actions fare no better under speech analysis. While the state may posit that important viewpoints are advanced during permitted public protests, this overlooks the critical truth that the constitution does not permit preferring one viewpoint over another.
Justice Gorsuch wrote a separate dissent, offering his view that the Calvary Chapel case was “simple,” in that “…there is no world in which the Constitution permits Nevada to favor Caesar’s Palace over Calvary Chapel.” (Gorsuch dissent, p. 1.)
Justice Kavanaugh wrote separately in dissent to emphasize that the state offered no plausible justification for its differential treatment of commercial activity and religious gatherings. . Justice Kavanaugh presented a primer addressing the nature and sources of religious disputes grounded in real or perceived differences in treatment of religion and other activities, and reviewing precedent addressing these cases.
Just Lawful Observes: The concern with protracted state invocation of emergency powers permeates the dissent here, a concern that was not as apparent in May of this year, where the Court denied injunctive relief to a California church in a manner deferential to the state’s exercise of emergency powers to inhibit viral contagion during a pandemic. South Bay United Pentacostal v. Newsom, Governor of California, No. 19a1044 (May 29, 2020). Although there were perceived differences between non-church and church activities, none were found to be inconsistent with the Free Exercise Clause.