27 Jul SCOTUS Denies Nevada Church’s Request for Injunctive Relief
On Friday night, the Supreme Court denied a request for an injunction by a church in Nevada seeking to hold in person services on the same terms as other facilities in the State, including casinos. The order limits religious gatherings to 50 people while allowing restaurants and casinos to operate as 50% capacity.
The majority that denied the injunction offered no written opinion accompanying its decision (which is not unusual for this type of request), but Justice Alito (joined by Justices Thomas and Kavanaugh), Justice Gorsuch, and Justice Kavanaugh wrote separate dissents from the denial of injunctive relief. The decision to deny the injunction does not mean that the Court necessarily believed the order is constitutional (we don’t know the answer to that, though we know 4 Justices thought it was not). Instead, this decision can be seen in the context that granting an injunction; and disrupting the status quo is seen as extraordinary relief and not something the Supreme Court typically does. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” South Bay United Pentecostal Church, et. al v. Newsom, 590 U.S. ___ (2020) (Roberts, C.J., concurring in denial of application for injunctive relief).
Justice Kavanaugh explains in his dissent that “in light of the devastating COVID-19 pandemic,” a State or local government “may subject religious organizations to the same limits as secular organizations” and that “those limits may be very strict.” He continues by explaining, in his view, the deference courts should afford to states / local governments in utilizing their emergency powers and where to draw a “red line”:
I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.
But COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services. There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech.
In his dissent, Justice Alito explains his views on how the passage of time impacts state and local emergency powers, even as the medical emergency persists:
For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency—and the opening days of the COVID–19 outbreak plainly qualify—public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules. In general, that is what has happened thus far during the COVID–19 pandemic.
But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights. Governor Sisolak issued the directive in question on May 28, more than two months after declaring a state of emergency on March 12. Now four months have passed since the original declaration. The problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.
To review the dissents click here.