Nevada church loses challenge to state attendance cap

Gov. Steve Sisolak’s edict preventing more than 50 people from attending church services during the coronavirus pandemic raises obvious constitutional questions. But in a curious ruling late Friday, the U.S. Supreme Court decided to look the other way.

The matter made its way to the high court after Calvary Church Dayton Valley filed suit, arguing the restrictions violated the First Amendment because some businesses were subjected to limits based on occupancy, while others — such as churches — faced an attendance cap. In June, a federal judge upheld the 50-person cap because churches weren’t the only institutions operating under such a mandate.

The church appealed, and late last week a five-justice majority — led by the court’s liberals and the chief justice — let the lower court ruling stand without comment. But the dissenters weren’t so silent. Most forceful was Justice Brett Kavanaugh, who shredded the lower court’s reasoning.

“Unless the State provides a sufficient justification otherwise, it must place religious organizations in the favored or exempt category,” Justice Kavanaugh wrote. He added, “Put simply, under the Court’s religion precedents, when a law on its face favors or exempts some secular organizations as opposed to religious organizations, a court entertaining a constitutional challenge by the religious organizations must determine whether the State has sufficiently justified the basis for the distinction.”

Some observers had a field day with the notion that Strip casinos remain open to host thousands of gamblers, while churches risk sanction for allowing more than 50 attendees at services. But while the gambler-worshiper dichotomy makes for an alluring soundbite, the principle at stake here has nothing to do with casinos. Instead, it’s whether the governor has exercised his emergency powers within the bounds of the Bill of Rights.

“The State has not explained why a 50 percent occupancy cap is good enough for secular businesses where people congregate in large groups or remain in close proximity for extended periods — such as at restaurants, bars, casinos and gyms — but is not good enough for places of worship,” Justice Kavanaugh explained. “Again, it does not suffice to point out that some secular businesses, such as movie theaters, are subject to the lesser of a 50-person or 50 percent occupancy cap. The legal question is not whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with.”

Justice Kavanaugh’s reasoning didn’t prevail, it’s true. But the silence from the majority is significant. These issues aren’t going away, and the court will sooner or later have to confront them. At this point, however, Gov. Sisolak should feel fortunate that his arbitrary decree has passed judicial muster.