Religious liberty advocates are confident that when the Supreme Court resumes in the fall, it will side with a Nevada church alleging that coronavirus worship restrictions violate the First Amendment.
The fresh round of confidence comes after a Friday 5-4 decision, in which Chief Justice John Roberts joined the liberal wing of the court to deny Calvary Chapel in Dayton Valley an emergency injunction. The measure would have protected Calvary Chapel from Gov. Steve Sisolak’s 50-person cap on worship services. It was the second time since May that Roberts joined the liberals to deny a church relief from coronavirus orders.
Although Roberts’s decision enraged many conservatives, David Cortman, the attorney representing the church, said that it likely stemmed from his dislike of injunctions, not an aversion to religious liberty causes. Cortman, a senior counsel at the legal nonprofit group Alliance Defending Freedom, said that because of the fast-paced way in which the virus constantly changes policy in individual states, Roberts likely felt “hesitant” to intervene with the court’s power.
“I think it made him uncomfortable,” Cortman said. “You have the highest standard you have to meet when you go up to the Supreme Court on one of these emergency injunctions.”
Roberts, although he did not comment on his decision in Calvary Chapel, said in his May decision in the case brought forward by South Bay United Pentecostal Church against California Gov. Gavin Newsom that, in his opinion, injunctions should only be granted “where the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances.” Because of the ever-changing nature of the coronavirus crisis, in Roberts’s view, church requests did not meet those criteria.
Roberts also wrote that in situations such as a pandemic, decisions such as church closures are best left “to the politically accountable officials of the States.”
Still, Cortman said, by throwing the case back to the Ninth Circuit Court of Appeals, Roberts left the door open for Calvary Chapel to bring the case back before the court later this year. If that happens, Cortman is confident that Roberts, who, along with the other conservative justices, delivered several major religious liberty wins this summer, will produce a favorable decision.
“I think that with the facts that we have and the record that we have, I clearly expect the chief justice to rule in the church’s favor,” Cortman said, pointing to the “obvious and palpable” constitutional violations in Sisolak’s coronavirus orders.
Charles LiMandri, the attorney who defended South Bay church in May, made a similar observation after the court rejected its case.
“If the case were to go back up to the U.S. Supreme Court after the Ninth Circuit rules again, we would not be held to such a high standard, and the result should be different,” he said. “By then, the circumstances concerning the pandemic are likely to be quite different as well. We expect that fact would also lead to a favorable result for religious liberty.”
As they stand now, Sisolak allows most businesses, casinos, and restaurants to operate at 50% capacity. Churches are required to cap out at 50 people, a slight increase from the 10-person limit that Sisolak originally issued in his reopening orders. This limit was changed after a letter from the Justice Department informed Sisolak that his orders “impermissibly treats religious and nonreligious organizations unequally.”
Calvary Chapel sued after Sisolak refused to allow it to hold a socially distanced service with 90 people present. In its complaint, it cited unequal treatment dealt to churches and businesses.
Cortman said he hopes that when the court is presented the case, it will take it up and hear it quickly.
“Our whole point is that each day and each Sunday that goes by, that’s a harm to the church to the magnitude of a constitutional violation,” he said. “This isn’t something that we can wait on for months and months, and it’ll make no difference.”
In the decision handed down on Friday, the four dissenting justices wrote separately that they would likely support the church if the case came back to the court. Justice Neil Gorsuch, in a one-page dissent, wrote that the orders show a clear inequality of treatment where businesses are favored over churches.
“In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new,” he wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
