Gorsuch Dissent: Supreme Court Put ‘Caesars Palace over Calvary Chapel’

Caesars Palace (Reinhard Link / Flickr / CC / Cropped)
Reinhard Link / Flickr / CC / Cropped

Supreme Court Justice Neil Gorsuch wrote a blistering one-paragraph dissent to the 5-4 majority upholding Nevada’s restrictions on church services Friday, noting that the Constitution did not put “Caesars Palace over Calvary Chapel.”

The case, Calvary Chapel v. Sisolak, involved a church that challenged restrictions by Gov. Steve Sisolak (D) that prohibited religious gatherings of more than 50 people, but allowed larger gatherings at Nevada’s casinos and theaters.

The Court denied the church’s request for an injunction against the State of Nevada on Friday, with Chief Justice John Roberts joining the four liberal justices. There was no majority opinion written, but three dissents were published.

In the first, Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh argued that the First Amendment freedom of religion should have invalidated the state’s policy, which discriminated against religious services of all kinds:

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.

Alito and the others argued that the injunction ought to have been granted, and that the chapel was likely to win its case: “The idea that allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow, and the State’s efforts to justify the discrimination are feeble.”

Kavanaugh added his own dissent, adding to the arguments made in Alito’s dissent (original emphasis):

To be clear, a State’s closing or reopening plan may subject religious organizations to the same limits as secular organizations. And in light of the devastating COVID–19 pandemic, those limits may be very strict. But a State may not impose strict limits on places of worship and looser limits on restaurants, bars, casinos, and gyms, at least without sufficient justification for the differential treatment of religion.

To be clear, the Court’s precedents do not require that religious organizations be treated more favorably than all secular organizations. Rather, the First Amendment requires that religious organizations be treated equally to the favored or exempt secular organizations, unless the State can sufficiently justify the differentiation.

Gorsuch limited his dissent to a single paragraph, with a memorable conclusion (emphasis added):

This is a simple case. Under the Governor’s edict, a 10- screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar num- ber gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from ad- mitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment pro- hibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

President Donald Trump reacted to the Court’s decision with a shocked tweet, declaring simply: “Win in 2020!”.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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