There are no exceptions to the First Amendment, even in a pandemic – Independent Women’s Forum

A few weeks ago, theTexas Supreme Courtmade 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 anorderthat surprised even theliberals atVox, 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 Chapels 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 madeCalvary Chapel Dayton Valley v. Sisolakan easy case. It isblackletter lawthat 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 admitthousandsof 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 aone-sentence orderthat contains not a word of explanation, a sharply divided 5-4 Supreme Court denied Calvary Chapels 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 Gorsucheach authored a dissentarguing that Nevadas 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 heldthat 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 consequencesthan 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 Amendments protections apply at all times and in all circumstances.

Erin Hawley is a senior legal fellow at Independent Womens Law Center and a former clerk to Chief Justice John Roberts of the Supreme Court of the United States.

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There are no exceptions to the First Amendment, even in a pandemic - Independent Women's Forum