The first page of the appeal contains a color photograph of an unidentified Las Vegas casino taken on June 4, the frame filled with an unmasked, cheek-by-jowl crowd of reveling gamblers (with predictable results: Covid-19 cases surged and the governor soon imposed a mask requirement). The fact that casinos are treated more generously than movie theaters, concerts, museums and churches handed Alliance Defending Freedom its opening. “The Free Exercise clause protects the exercise of religion,” the church’s Supreme Court appeal began, adding that “no constitutional provision protects the right to gamble at casinos, eat at restaurants, or frolic at indoor amusement parks.”
This statement of the case obviously appealed to Justice Alito, who began his 11-page dissent with this observation: “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.” He added, “But the governor of Nevada apparently has different priorities.” The state, he said, “blatantly discriminates against houses of worship.”
Let’s assume that opening the casinos was a political and economic necessity for the state. But finding a constitutional violation requires more than clever rhetoric. It requires a very precise chain of analysis, a hard climb that Justice Alito failed to make. His burden was to show not simply that churches are limited to 50 people and casinos aren’t, but that the state singled churches out for onerous treatment without reason. Federal District Judge Richard Boulware II, in rejecting the church’s request for an injunction, offered the analysis that Justice Alito’s opinion skipped over:
Other secular entities and activities similar in nature to church services have been subject to similar or more restrictive limitations on their operations. The court notes that church services consist of activities, such as sermons and corporate worship, that are comparable in terms of large numbers of people gathering for an extended period of time to lectures, museums, movie theaters, specified trade/technical schools, nightclubs and concerts. All of these latter activities are also subject to the 50-person cap or remain banned altogether.
In other words, it’s casinos that Nevada singles out for special treatment, not religion.
Invoking the First Amendment’s free speech clause, Justice Alito also claimed that the state was discriminating against churches on the basis of their “viewpoint.” “Religion counts as a viewpoint,” he wrote, a sentence I found baffling. Isn’t belief in public health a viewpoint? In any event, he went on: “Compare the directive’s treatment of casino entertainment and church services. Both involve expression, but the directive favors the secular expression in casino shows over the religious expression in houses of worship.”
The contorted effort to shoehorn this dispute into standard free-speech doctrine was only a prelude to a further charge: that Governor Sisolak “has favored certain speakers over others.” It seems that the governor supported and even took part in a protest after the killing of George Floyd by the Minneapolis police, a protest that drew more than 50 people and yet was allowed to take place. “Respecting some First Amendment rights is not a shield for violating others,” Justice Alito wrote. In other words, the governor of Nevada is not only anti-religious but a hypocrite as well.
Why does any of this matter? After all, Justice Alito’s opinion attracted only two other votes. (Justice Gorsuch filed a separate one-paragraph dissent, pithily observing that “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”)
I think it matters because rhetoric like Justice Alito’s, by design or not, inevitably places the Supreme Court where it least belongs and where it is least qualified to be, at the center of a national debate over how best to protect the American public from a deadly pandemic. It’s beyond dispute that public health has become politicized to a degree that would have been unimaginable just six months ago. Does the court really want to become a part of that politicization by opening its doors to a battle not its own? That even a minority of justices would seize this moment to advance their religious agenda, especially given that agenda’s nearly unqualified success in recent years, is deeply unsettling.
(I’ve been fascinated that some liberal commentators found the dissenting opinions persuasive and the case a close one. I understand the impulse not to appear unduly antagonistic toward religion, but I think that generosity toward the religious claim here loses sight of the broader context in which the dissenting justices were writing.)