Chief Justice Strikes Again

News: US News
by Kristine Christlieb  •  •  July 27, 2020   

John Roberts votes with liberal bloc against churches

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RENO, Nev. ( - The Supreme Court is once again ruling against churches' right to worship.

(L to R) Justice Clarence Thomas and Brett Kavanaugh

In yet another 5–4 decision, Chief Justice John Roberts — a Catholic — on Friday voted with the liberal bloc of justices, this time against Calvary Chapel Dayton Valley in rural Nevada. The Christian church was seeking injuctive relief from Wuhan virus regulations limiting all houses of worship to 50 people, while casinos, gyms, restaurants and other businesses are allowed to operate at 50% capacity.

The majority offered no explanation for their denial of the church's request. Justice Samuel Alito wrote an 11-page dissenting opinion, which Justices Clarence Thomas and Brett Kavanaugh joined. Kavanaugh also wrote a separate, 12-page dissent, and Gorsuch wrote a single-paragraph dissent.

"This is a simple case," Gorsuch began, continuing:

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 number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues and mosques are banned from admitting 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 prohibits such obvious discrimination against the exercise of religion.

Closing his dissent with what The Wall Street Journal called "caustic concission," Gorusch wrote, "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."

Nevada has been in the news before because of its church restrictions. On March 20, Nevada Democratic governor Steve Sisolak banned all in-person worship at which more than nine people were gathered. He allowed salons, restaurants and other services to reopen May 9.

The Department of Justice (DOJ) sent Sisolak a letter informing him he was on shaky legal ground, noting the discrepancy between the limit on churches while other services had no such restrictions.

NV Gov. Steve Sisolak

"We are concerned, however, that the flat prohibition against 10 or more persons gathering for in-person worship services — regardless of whether they maintain social-distancing guidelines — impermissibly treats religious and nonreligious organizations unequally," observed the DOJ.

The letter went on to warn of potential constitutional violations.

"These directives may violate the Free Exercise Clause of the First Amendment unless the government can prove a compelling interest and pursued the least restrictive means possible," the DOJ wrote.

Based on Chief Justice Roberts' track record of voting against churches' rights during the pandemic, the state of Nevada, and others, may have little to fear.

Gov. Steve Sisolak banned all in-person worship at which more than nine people were gathered. He allowed salons, restaurants and other services to reopen May 9.

CA Gov. Gavin Newsom

(Photo: Rich Pedroncelli)

In a similar case in California in late May, Roberts sided with the liberal bloc against a San Diego church pleading for relief from Democratic governor Gavin Newsom's lockdown orders for churches, which favored secular businesses over houses of worship.

Roberts offered this explanation: "The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement."

And in late June, Roberts sided with liberal justices again in a Louisiana abortion case, June Medical Services v. Russo. Roberts' decision allowed the Supreme Court to nullify a state regulation that required abortionists to have admitting privileges with local hospitals. He said the status quo must be preserved.

"The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike," Roberts penned. "The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents."

Roberts was a George W. Bush appointee. Writing for Vox, Dylan Scott speculates about Roberts' position on abortion:

"We know very little about Chief Justice Roberts' personal views on abortion and reproductive freedom. What we do know is that he is a practicing Catholic and his wife (who is also a Catholic) has been involved with Feminists for Life, a group that opposes abortion," Melissa Murray, a law professor at New York University, told me by email. "And in 1990, as a lawyer with the Department of Justice, Roberts penned a brief that argued Roe v. Wade was wrongly decided and should be overturned."

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