There are no exceptions to the First Amendment, even in a pandemic

There are no exceptions to the First Amendment, even in a pandemic

by Erin Hawley

 | July 28, 2020 01:32 PM

A few weeks ago, the Texas Supreme Court made headlines by warning state officials that there was not, in fact, a pandemic exception to the United States Constitution. This past week, however, the U.S. Supreme Court seemed to create one. In an order that surprised even the liberals at Vox, the Supreme Court blessed a Nevada law that preferences casinos over churches. The decision has no basis in First Amendment law and establishes a worrisome precedent for government overreach in times of crisis.
Located in Dayton, Nevada, Calvary Chapel is a small, rural church that wishes to host worship services for about 90 congregants, which is 50% of its fire-code capacity. Calvary Chapel’s reopening plans are more than compliant with state and CDC requirements. A limited, 45-minute service (half the normal length), one-way entrance and exit footpaths, six-feet of separation between families, a prohibition on passing items, and sanitization between services are just some of the measures proposed by Calvary Chapel.
Yet Nevada forbade Calvary Chapel from opening its doors. In a breathtaking assertion of governmental power premised on COVID-19, Gov. Steve Sisolak (a Democrat) issued a directive that severely constrains church attendance. No church, synagogue, mosque, or other place of worship may admit more than 50 persons — no matter the building capacity or safety measures employed.
The fact that these restrictions do not apply to casinos, gyms, bowling alleys, restaurants, or bars should have made Calvary Chapel Dayton Valley v. Sisolak an easy case. It is blackletter law that strict scrutiny applies to government restrictions on religious exercise that are not “neutral and of general applicability.” If the Free Exercise Clause means anything, it means government may not single out the religious for disfavored treatment. Yet, that is precisely what Nevada has done. While limiting church attendance to 50 people, Nevada allows the casino down the street to admit thousands of people, up to 50% of their maximum capacity.
Further, casinos are not the only venues that are treated more favorably than churches. Other commercial interests, such as bars, gyms, and restaurants, may also operate at 50% capacity. In fact, tournament bowling alleys in Las Vegas seat hundreds of spectators, and like casinos, can admit up to 50% of capacity. State guidelines provide that groups of up to 50 people may sit together in bowling alley grandstands. Meanwhile, the synagogue down the street is limited to 50 total worshippers.
On Friday, in a one-sentence order that contains not a word of explanation, a sharply divided 5-4 Supreme Court denied Calvary Chapel’s application for an injunction restraining the state of Nevada from enforcing its 50-person limit on religious services.
Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch each authored a dissent arguing that Nevada’s reopening plan discriminated against religious services in violation of the First Amendment.
As Alito explained, a public health emergency does not give public officials “carte blanche to disregard the Constitution for as long as the medical problem persists.” Rather, officials are required to craft policies “that account for constitutional rights.”
This principle is hardly new. In 1866, at the height of the Civil War, the Supreme Court held that the Constitution may not be modified in times of crisis. Rather, our founding charter applies “at all times and under all circumstances.” Indeed, the court could not think of any other doctrine “involving more pernicious consequences…than that any of its provisions can be suspended during any of the great exigencies of government.”
If only the current Supreme Court would return to this view. As Gorsuch explained, “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.”
All is not lost, however. Although Calvary Chapel will not receive its injunction, the courts still have a chance to consider the case on the merits and to ensure that the First Amendment’s protections apply at all times and in all circumstances.