November 17, 2020 | Aaron Mercer, Contributing Writer
The U.S. Supreme Court is being asked again to halt discrimination against churches. And the timing could not be more crucial.
Coronavirus is resurgent around the world, particularly in the United States. As caseloads grow and hospitalizations increase, pressure is rising for officials to consider heavy-handed lockdowns once again.
But inconsistency — and even hypocrisy — in pandemic response measures has been a bane to maintaining public trust. And singling out churches, synagogues, and other religious centers for special restrictions are a big part of that problem.
Recently Alliance Defending Freedom (ADF) filed a new petition with the U.S. Supreme Court on behalf of Calvary Chapel Dayton Valley in Nevada. You may remember the name of this church because it appealed to the high court earlier this year as well. Its complaint was the unfairness of a mandate from Nevada Governor Steve Sisolak that church attendance must be capped at 50 people while other establishments — casinos, for example — could operate at 50 percent capacity.
To put that into context, a casino with room for 1,000 people could still draw in 500 customers. However, a church with similar capacity could only welcome 50 on a Sunday morning. Calvary Chapel Dayton Valley actually just wanted to make room for 90 (half its capacity), but, despite taking all manner of safety precautions, that was still not ok with the state.
ADF and its client were turned down by a divided Supreme Court in July, but it was clear their case had stirred several of the justices.
Justice Neil Gorsuch called this a “simple case.” He pointed to the hypocrisy of Sisolak’s order that restricts precaution-following churches while allowing moviegoers and gamblers to gather by the hundreds — in close quarters no less.
Gorsuch went on to declare:
In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits 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.
Justice Samuel Alito similarly rebuffed the governor’s edict and the court’s refusal to step in. In a dissent joined by Justices Clarence Thomas and Brett Kavanaugh, he said, “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.”
Alito then expressed disappointment in his colleagues dismissing the petition. “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.”
Governor Sisolak revised his order earlier this autumn so that the church attendance limit increased to 250 people. However, the fact is that a hard cap remains for houses of worship but not casinos and other entities. ADF is asking again for the Supreme Court to intervene. We should pray wisdom from recent months as well as the addition of Justice Amy Coney Barrett may lead the court to chart a different course.
After all, this tension is not going away. It will likely only increase in the months ahead. For example, Orthodox Jews in New York City recently had to battle back a COVID order that appeared to have them in the cross-hairs. And just days ago the Catholic Diocese of Brooklyn filed suit with the U.S. Supreme Court against a new COVID mandate from New York Governor Andrew Cuomo that, as the diocese says, “expressly singles out ‘houses of worship’ by that name for adverse treatment.”
Even as officials rightly move to confront a real health crisis, they need to be careful. Religious discrimination is illegal. It’s that simple.
May we pray that government leaders see churches not as problems to restrain. Rather, may they come to see that we are faithful partners in efforts to bring healing and hope to individuals and communities in this trying time.
Aaron Mercer is a Contributing Writer with two decades of experience in Washington, D.C.’s public policy arena. He reflects on faith, technology, and the public square at FTPolicy.com.
“Be wise in the way you act toward outsiders; make the most of every opportunity. Let your conversation be always full of grace, seasoned with salt, so that you may know how to answer everyone.” (Colossians 4:5-6)