On July 24 the Supreme Court declined a request from a Nevada church to lift a 50-person limit on religious services put in place by Nevada Governor Steve Sisolak to prevent the spread of COVID-19. The suit brings together issues of religious freedom in a time of pandemic and the ability of governors to issue orders that limit gathering in the interest of public health.
In Calvary Chapel Dayton Valley v. Steve Sisolak, the church tried to make the ban an issue of First Amendment rights, saying, “The Church has patiently waited for the governor to restore its First Amendment freedoms, trusting that the Governor would prioritize constitutional rights and allow churches to resume in-person worship services at the earliest opportunity.”
In a 5-4 vote the court denied the request of the church for an interim order that would have allowed it to hold services at 50 percent building capacity. The denial was brief, “The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.”
Chief Justice Roberts voted with Justices Ginsberg, Breyer, Sotomayor, Kagan. Justices Thomas, Alito, Gorsuch and Kavanagh offered 24 pages of dissent.
The vote comes on the heels of another vote in May in the case of South Bay United Pentecostal Church v. Newsom, when the Court again declined to issue a stay on an executive order by California Governor Gavin Newsome to limit the ability of churches to hold in-person services to 25 percent of capacity and a limit of 100 attendees; and in the case of Elim Romanian Pentecostal Church et al v. Pritzker, where the court again declined to block the ability of a governor to limit gatherings in order to protect from COVID-19. In that case Illinois Governor J.B. Pritzker limited gathering to no more than 10.
In the Calvary complaint the church said, “The Church sincerely believes that online services and drive-in services do not meet the Bible’s requirement that the Church should meet together in person for corporate worship.”
The Romanian churches made a similar argument, saying, “With each passing Sunday, churches are suffering under the yoke of the governor’s unconstitutional orders prohibiting churches from freely exercising their sincerely held religious beliefs requiring assembling themselves together to worship God.”
Meanwhile, churches around the country have suspended services since mid-March. Plans to reopen vary by denomination, the virulence of the virus in the area, and on the decisions of clergy leadership in their individual congregations.
South Dakota Governor Kristi Noem did not side with her sibling governors in support of the Court’s decision to uphold governmental authority. Rather, she issued a press release on July 27 condemning the Court’s decision as an attack on First Amendment rights. In it she said, “The Supreme Court for the second time this year turned a blind eye to an obvious violation of people’s First Amendment rights. Nevada’s total disregard for those who believe God calls them to assemble as a community – to worship and to participate in sacraments – unquestionably tramples on the sacred liberties of the people.”
She continued, “in the United States, government cannot treat casinos, amusement parks, and restaurants differently than churches… Here in South Dakota, public servants will continue to respect the rule of law, equal protection under it, and the hallowed cause of liberty.”
At issue is the interpretation that the Nevada guidelines intentionally disfavor churches while allowing some secular business to be open. The guidelines for Nevada business are based on capacity and length of stay in a building, rather than the total number of attendees.
Governor Sisolak’s order superficially limits church services to a maximum of 50 people while some other businesses, such as casinos, gyms, bars and restaurants are allowed to operate at 50 percent capacity.
Current CDC guidelines specifically for churches encourage churches to rely on current mitigation efforts as determined by State and local authorities. The guidelines promote limiting the size of gatherings and social distancing measures and encourage outdoor services; require protection for staff and congregants at higher risk; recommend plans for when a congregant gets sick with COVID-19; promote hand-washing, masks, and frequent sanitizing of surfaces; encourage churches to ensure adequate ventilation and enough time between services; and advise plenty of signage