The Supreme Court has chosen in a 5-4 ruling not to grant injunctive relief to churches in Nevada in light of the state’s arguably inconsistent Covid-19 guidelines. In doing so, the Supreme Court let stand what is wrong: churches are being treated differently than similar gatherings. Multiple justices in the minority wrote dissents, and those help us to see the issues in play. I’ve quoted the justice’s words since their expertise is more important (and informed) than mine.
Justice Neil Gorsuch explained in his dissent:
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 sic people huddled at craps table here and a similar number gather around every roulette wheel there. Large numbers and close quarters are fine in such places. But, churches, synagogues, and mosques are banned from admitting 50 worshippers—no matter how large the building, how distant the individuals, how many wear masks, no matter the precautions at all.
Gorsuch is correct. It was a simple case.
Even left-leaning Vox (known for its explainer articles) was surprised, asserting that Roberts is supportive of state officials “even when they hand down public health orders that draw constitutionally dubious lines.”
As I (and many others) have consistently said, that’s a line that churches cannot accept. Other states have consistently applied the rules in similar settings.
A divided Supreme Court on Friday night turned down a request by a Nevada church for permission to hold services on the same terms that other facilities in the state, including casinos, are allowed to hold gatherings during the COVID-19 pandemic.
The key argument was:
The church stressed that it is willing to comply with rules regarding masks and social distancing (both of which were largely absent from a photo included in the church’s brief, taken at a crowded Las Vegas casino on June 4); all that it was asking, it emphasized, was to be treated the same as everyone else.
Let me take a moment to remind us that religious liberty is so important that it is enshrined in our Constitution’s First Amendment. Furthermore, such freedom is beyond (and before) our Consitution.
Such rights are endowed by our Creator, not our founding documents.
Now, for those reading who may not know my thoughts on these issues, I’ve written in national publications that churches should consider not meeting (before that was mandated), and been extensively involved in equpping churches to do ministry while not gathering on Sundays. And, I’ve also defended religious liberty for all. Both issues matter to me.
Caring for our neighbors in a pandemic matters. And caring for religious liberty also matters.
We can (and should) be concerned about both.
Rolling the Dice
Justice Brett Kavaenaugh explained in his dissent that the transmission risk “is at least as high at restaurants, bars, casinos and gyms as it is at religious services.” Additionally, the states can “subject religious organizations to the same limits as secular organizations,” they can’t “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.”
The Supreme Court is the law of the land, but there is also a higher law. When they are wrong, and they have been before, we need to do what is right.
I get that this seems like a little small thing to many, but it has been what many of us have said is too far—many Christian leaders have said we would speak out if a state crossed the line and treated churches differently. And, it is more than just one case. It is a principle.
Gorsuch went on to say, “In Nevada, it seems, it is better to be in entertainment than religion.”
Justice Samuel Alito also explained in his dissent, “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.”
Indeed it is. And we should not.
There are churches in other places choosing to disobey state mandates when the laws are rightly applied, and I am not talking about them in this article. I’ve been careful to talk about the consistent application of the law, even having a long discussion with John Inazu, a leading religious liberty scholar to help churches understand that states can restrict worship gatherings when consistently applying mandates.
This, on the other hand, is an inappropriate overreach which, in not checked, could have significant implications.
We simply can’t roll the dice on religious liberty.
So, the question remains, how should churches respond?
First, churches should consider their own context.
In Illinois, we have no rules—only guidelines. Yet, my church— like many others— is not meeting yet. We want to love our neighbors and make choices. If meeting puts people in danger, don’t meet.
The fact that the Supreme Court made a bad ruling does not mean your church should rush to meet in your context. There are many factors to weigh in that decision. A bad ruling on this issue does, however, mean that you should speak up and out.
Second, churches need to remember that gathering is a major part of a church’s function.
Gathering is a mark of what a church is. It is central to church life.
Thus, we should all want to meet—to work toward it. And, when it is denied, we should grieve over its loss. And, finally, when it is denied wrongly, we should take action.
Third, churches need to recognize that this was the line that we all said should not be crossed, and respond accordingly.
Nevada won the injunction battle, but churches need to help the state back up and make the right choice. This is the line that every mainstream evangelical group said they would draw, and it has now been crossed.
Thus, when the Supreme Court does not follow the long-held traditions of the law, and does not grant relief when states unfairly singles out churches, I will support churches that (when following the first two points) choose to meet and follow the guidelines for similarly-meeting groups.
To quote Alito’s dissent:
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.
As Justice Gorsuch put it, “There is no world in which the Constitution permits Nevada to favor Caesar’s Palace over Calvary Chapel.”
But, unlike New York, Illinois, and California, people in Nevada are living in that world. And, we need to speak up. And, for those churches that gather Sunday, contrary to the Nevada governor’s order, but by following all the rules that theaters and casinos do, and working to keep their parishioners safe— I stand with you.
Here’s the thing. You don’t have to agree that churches should be meeting. You don’t have to agree that it is safe. However, we can and should agree that churches should not be treated differently than similar contexts. That’s fundamental to our approach to religious liberty and in general.
This crosses an important line. It’s time to speak and time to act.