Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Contracts Expression
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The Supreme Court of the United States denied an emergency application by the Calvary Chapel to hold religious services, in a challenge to the State of Nevada Covid-19 emergency orders. The Church claimed that a state directive allowing non-essential businesses, such as casinos and water parks, to operate at 50% capacity but preventing places of worship from congregating with more than 50 people under any circumstance, was discriminatory and violated its right to Free Exercise, Free Speech and Public Assembly protected by the First Amendment. The emergency plea came after the District Court refused to grant relief and the Ninth Circuit denied Calvary Chapel’s application for an injunction pending appeal. The decision of the Supreme Court denying the injunctive relief had the support of five justices, but provided no reasoning. However, Justices Alito, Thomas, Kavanaugh and Gorsuch gave lengthy dissenting opinions broadly agreeing that the fact that “Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing.”
The Applicant, the Calvary Chapel Dayton Valley, is a Christian church located in Dayton, Nevada, United States. The first Respondent is Steve Sisolak in his official capacity as the Governor of Nevada. The second Respondent is Aaron Ford, in his official capacity as Attorney General of Nevada, while the third Respondent is Frank Hunewill, in his official capacity as Sheriff of Lyon County.
After the state of Nevada had been locked down due to the COVID-19 pandemic, the Governor of the state announced that the state would re-open in phases. Upon the announcement of phase I of the re-opening of the state with emergency orders, the Applicant filed its initial complaint dated May 22, 2020 at the District Court of Nevada challenging the emergency orders of the Governor which prohibited churches and other places of worship from holding in-person worship services of ten or more people regardless of compliance with social distancing and public health guidelines. At the same time restaurants and food establishments, nail care salons, hair salons, and barber shops were allowed to open and operate at 50% capacity. This was already after some two months of being unable to hold in-person services which the Applicant considered discriminatory and the situation was worsened by the fact that any mode of service other than physical assembly did not accord with some churchgoers’ beliefs. Four days after the filing of the complaint, the Governor announced that the state would be moving into the second phase of its re-opening plan on May 29, 2020 and that the following “non-essential” businesses could reopen:
“Gyms and fitness facilities, including group fitness classes, up to 50% building capacity;
Bars and taverns, up to 50% capacity;
Salons and other businesses that provide aesthetic or skin services, including facials, hair removal, tanning, eyelash services, eyebrow threading, and salt therapy;
Day and overnight spas
Body art and piercing establishments
Aquatic facilities and swimming pools, up to 50% capacity
Water parks, up to 50% capacity
Museums, art galleries, zoos and aquariums, up to 50% capacity
Outdoor venues, like mini golf and amusement parks
Indoor venues, like movie theaters, bowling alleys, and indoor malls, up to 50% capacity; and
Casinos (starting June 4)” (p. 2 of Verified First Amended Complaint)
Churches and places of worship were however prevented from congregating with more than 50 people under any circumstance (the “Church Gathering Ban”). In response to this, the Applicant on May 28, 2020 filed its verified amended complaint challenging Directive 021 under the First Amendment’s Free Exercise, Free Speech and Public Assembly. On June 11, 2020 Judge Richard F. Boulware II denied the Applicant’s Emergency Motion for a Temporary Restraining Order and Emergency Motion for a Preliminary Injunction. Dissatisfied by the ruling, the Applicant applied to the United States Court of Appeals for the Ninth Circuit for a reversal of the ruling of the District Court and for a grant of injunctive relief. On July 2, 2020, the Court of Appeals denied the injunctive relief sought by the Applicant, who then submitted an emergency application to the Supreme Court.
At the heart of the Applicant’s argument before the Supreme Court was that the Governor’s Directive was unjustifiably discriminatory to the Applicant’s right to Free Exercise, Free Speech and Public Assembly protected by the First Amendment. The Applicant argued that the Governor’s Directive prioritized commercial over non-commercial religious speech which are protected viewpoints and favors the secular gatherings against the religious gatherings. The Applicant expressly argued that “the First Amendment strongly protects Calvary Chapel’s noncommercial, religious messages, whereas secular business’ commercial expression is “subject to greater governmental regulation.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 579 (2011) [p. 29 of the of the Applicant’s Brief]
In scrutinizing the Governor’s five reasons for the discriminatory Directive, the Applicant identified and addressed the reasons for the Directive.
The Applicant submitted that the balance of equities weighed heavily in its favor because all it sought was to be treated equally under the law, in particular, under the First Amendment. The Applicant argued that it was not asking for something that the state of Nevada had not given to others. It pointed out that while the Governor’s Directive had prevented its members from gathering at places of worship to engage in the constitutionally-protected free exercise of religion, non-constitutionally-protected activities like casinos, restaurants and bars, theme parks, gyms, bowling alleys, arcades, and pools were allowed to open and operate to a greater degree than the Applicant. Further, the Applicant argued that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) [p. 37] The Applicant finally asked the Court to reverse the ruling of the Court of Appeals and grant its injunctive relief.
The Supreme Court, in a brief one-sentence order, rejected the applicant’s request for injunctive relief. Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch, however, gave dissenting opinions amounting to 24 pages.
Justice Alito opened his dissent noting that while the “Constitution guarantees the free exercise of religion it says nothing about the freedom to play craps or blackjack.” [p. 1] This forms the basis of the Applicant’s injunctive relief, he said. The judge went on to say that the Applicant had not approached the Court for a gratuitous claim but one founded on the most important document – the Constitution. The judge expressed his disappointment in the majority decision: “That Nevada would discriminate in favor of the powerful gaming industry and its employees that may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.” [p. 1]
In addressing the facts and substance of the case, Justice Alito said he could not see any justification for the Governor of Nevada to allow casinos to operate at 50% capacity which represents much more than the 90 congregants gathering proposed by the Applicant. He went on to say that operating casinos at 50% was likely to mean thousands of people who often come from all over the world, visiting casinos in Las Vegas, standing close together and drinking alcohol, which act requires them to take off their masks. On the other hand, said Judge Alito, the Applicant’s worshippers seek to congregate only to a maximum number of 90, wearing masks and practicing social distancing.
Justice Alito noted that in presenting its defense, the state of Nevada essentially premised its action on the Supreme Court’s decisions in Jacobson v. Massachusetts, 197 U. S. 11 (1905) and South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020). Relying on Jacobson, Justice Alito noted that the state of Nevada argued that “when a state exercises emergency police powers to enact an emergency public health measure, courts will uphold it unless (1) there is no real or substantial relation to public health, or (2) the measures are ‘beyond all question’ a ‘plain[,] palpable [invasion] of rights secured by the fundamental law.’” [p. 9]
Justice Alito turned his attention to South Bay United Pentecostal Church v. Newsom which the state relied on and where the Supreme Court refused to issue a temporary injunction against a California law that limited the number of persons allowed to congregate in a church service. Justice Alito noted that he dissented in the judgment. He however posed that, in any case, the situation in South Bay United Pentecostal Church’s case was different from the Applicant’s case. In South Bay, the church had instituted an action for an injunction based on less favorable treatment than certain other facilities, such as factories, offices, supermarkets, restaurants, and retail stores. The law was defended on the ground that in these facilities, unlike in religious houses, “people neither congregate in large groups nor remain in close proximity for extended periods.” [p. 10] This was not case in Nevada where people visit and stay close to each other in large numbers in casinos and other facilities for a long period.
In issuing an injunction in favor of the Applicant, Justice Alito noted that the Applicant’s First Amendment claims “are very likely to succeed. Indeed, it can be said that its “legal rights . . . are indisputably clear,” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted), and the equities also favor Calvary Chapel. Preventing congregants from worshipping will cause irreparable harm, and the State has made no effort to show that Calvary Chapel’s plans would create a serious public health risk.” [p. 11] The learned Justice therefore would have granted an injunction in favor of the Applicant pending appeal to allow its members to congregate in accordance with the proposed plan and general face mask requirement and consequently dissented from the majority decision of the Court.
In a separate one page dissent filed by Justice Neil Gorsuch the learned Justice described the dispute as a simple one. To Justice Gorsuch, the crux of the case was that the state of Nevada had unjustifiably normalized discrimination between religion and entertainment to the disadvantage of religion regardless of its constitutional protection. The learned Justice stated that “in Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. 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.” [p. 1]
Justice Kavanugh started by stating that “Religion cases are among the most sensitive and challenging in American law.” He noted that there is always disagreement when it comes to religious cases. Justice Kavanaugh identified and categorized laws dealing with religion as follows “(1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.” [p. 3] Justice Kavanaugh noted that the Nevada case falls into the fourth category. He further noted that the Court’s precedents do not require that religious organizations be treated more favorably than all secular organizations, but that the First Amendment requires that religious organizations be treated equally to the favored or exempt secular organizations, unless the state can justify otherwise.
At the very heart of his dissent, Justice Kavanaugh noted that the risk of COVID-19 transmission is as high at restaurants, bars, casinos and gyms as it is at religious centers. The learned Justice further noted that while the state can subject religious organizations to the same restrictions as secular organizations when dealing with COVID-19, the state cannot however impose strict limits on religious centers and looser limits on restaurants, bars, casinos, and gyms without sufficient justification for such differential treatment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of the United States limited the expression of the Calvary Chapel Dayton Valley when it denied it the injunctive relief sought to allow its members to congregate up to a number of 90 as opposed to the maximum of 50 members allowed by the Governor of Nevada. However, the dissenting opinions of the four other justices of the Court provide a window of opportunity to develop the jurisprudence on the extent of protection for public assembly of a religious organization under the First Amendment. At the very least, the Court should provide sufficient justification to treat secular organizations or individuals more favorably than religious ones.
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