For the second time this year, the United States Supreme Court has denied a church’s request for an exemption from a state mandate limiting the size of worship services.

A church (Calvary Chapel) in Nevada wanted to host worship services for about 90 congregants, or some 50% of its fire-code capacity. In conducting these services, the church planned to take several precautions going beyond anything the state requires. In addition to asking congregants to adhere to proper social distancing protocols, it intended to cut the length of services in half. It also planned to require six feet of separation between families seated in the pews, to prohibit items from being passed among the congregation, to guide congregants to designated doorways along one-way paths, and to leave sufficient time between services so the church could be sanitized.

“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.” — Dissenting opinion of Justice Gorsuch

According to an infectious disease expert, these measures were “equal to or more extensive than those recommended by the CDC.” Yet hosting even this type of service would violate “Directive 21,” Nevada Governor Steve Sisolak’s reopening plan, which limits indoor worship services to “no more than fifty persons.” Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship. While “houses of worship” may admit “no more than fifty persons,” many favored facilities that host indoor activities may operate at 50% capacity. Privileged facilities include bowling alleys, breweries, fitness facilities, and most notably, casinos, which have operated at 50% capacity for over a month.

Citing this unequal treatment, Calvary Chapel brought suit in federal district court seeking an injunction allowing it to conduct services for up to 50% of maximum occupancy. The district court refused to grant relief, and a federal appeals court affirmed the district court’s ruling. Calvary Church appealed to the United States Supreme Court for an order barring enforcement of the governor’s restrictions on worship services. But in a one-sentence opinion without any explanation or analysis, the Court simply said “the application for injunctive relief … is denied.” The ruling was a split 5-4 decision, with Chief Justice John Roberts siding with the four liberal justices in denying the relief sought by the church.

Justice Alito’s Dissent

Justice Alito filed a dissenting opinion  that was joined by Justices Thomas and Kavanaugh.  He observed:

Activities that occur in casinos frequently involve far less physical distancing and other safety measures than the worship services that Calvary Chapel proposes to conduct. Patrons at a craps or blackjack table do not customarily stay six feet apart. Casinos are permitted to serve alcohol, which is well known to induce risk taking, and drinking generally requires at least the temporary removal of masks. Casinos attract patrons from all over the country. In anticipation of reopening, one casino owner gave away 2,000 one-way airline tickets to Las Vegas. And when the Governor announced that casinos would be permitted to reopen, he invited visitors to come to the State. The average visitor to Las Vegas visits more than six different casinos, potentially gathering with far more than 50 persons in each one. Visitors to Las Vegas who gamble do so for more than two hours per day on average, and gamblers in a casino often move from one spot to another, trying their luck at different games or at least at different slot machines.

Houses of worship can — and have — adopted rules that provide far more protection. Family groups can be given places in the pews that are more than six feet away from others. Worshippers can be required to wear masks throughout the service or for all but a very brief time. Worshippers do not customarily travel from distant spots to attend a particular church; nor do they generally hop from church to church to sample different services on any given Sunday. Few worship services last two hours. (Calvary Chapel now limits its services to 45 minutes.) And worshippers do not generally mill around the church while a service is in progress. The idea that allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow, and the State’s efforts to justify the discrimination are feeble … . In sum, the directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.

The State of Nevada attempted to defend the Governor’s order by relying on the Supreme Court’s recent refusal to issue a temporary injunction against enforcement of a California law that limited the number of persons allowed to attend church services. South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020). But Justice Alito noted that the prior case “is different from the one now before us. In South Bay, a church relied on the fact that the California law treated churches less favorably than certain other facilities, such as factories, offices, supermarkets, restaurants, and retail stores. But the law was defended on the ground that in these facilities, unlike in houses of worship, people neither congregate in large groups nor remain in close proximity for extended periods. That cannot be said about the facilities favored in Nevada. In casinos and other facilities granted preferential treatment under the directive, people congregate in large groups and remain in close proximity for extended periods.”

Justice Kavanaugh’s Dissent

Justice Kavanaugh began his dissenting opinion by noting:

To be clear, a State’s closing or reopening plan may subject religious organizations to the same limits as secular organizations. And in light of the devastating COVID–19 pandemic, those limits may be very strict. But a State may not impose strict limits on places of worship and looser limits on restaurants, bars, casinos, and gyms, at least without sufficient justification for the differential treatment of religion. … Nevada has thus far failed to provide a sufficient justification, and its current reopening plan therefore violates the First Amendment.

Justice Kavanaugh ended his opinion with these words:

The Constitution protects religious observers against unequal treatment. Nevada’s 50-person attendance cap on religious worship services puts praying at churches, synagogues, temples, and mosques on worse footing than eating at restaurants, drinking at bars, gambling at casinos, or biking at gyms. In other words, Nevada is discriminating against religion. And because the State has not offered a sufficient justification for doing so, that discrimination violates the First Amendment. I would grant the Church’s application for a temporary injunction. I respectfully dissent.

What This Means

What is the practical relevance of this case to churches? Consider the following points:

First, the Court’s decision means churches may not be able to look to the courts for assistance when confronted by a state or local law restricting their ability to conduct worship services. This conclusion is underscored by the fact that this is the second time this year the Supreme Court has rejected a religious liberty challenge to restrictions on worship services.

Second, the Supreme Court, in its previous COVID-19 ruling (South Bay) stressed that churches can challenge restrictions on attendance that are stricter than those that apply to comparable secular organizations. Comparable organizations would include those that have similar numbers in attendance for similar periods of duration each week, with similar physical interactions. But churches can be subjected to more stringent limitations on attendance if the totality of their interactions with the public are greater than those of other organizations. The Governor’s order in Nevada provided more favorable treatment to several secular organizations, including bowling alleys, breweries, fitness facilities, and casinos. The Court did not explain why these secular organizations were not “comparable secular organizations” that were being treated more favorably than religious congregations. But the Court’s ruling in South Bay that churches cannot be treated less favorably than comparable secular organizations remains a valid defense to restrictions on worship services.

Third, church leaders who continue to hold worship services in contravention of state or local restrictions must understand that in doing so they are exposing their congregation to possible risks and liability should one or more persons become infected with the COVID-19 virus. These risks include:

• Potential personal liability of church board members if their decision to ignore government mandates and recommendations is deemed to constitute gross negligence. Most states have enacted laws limiting the personal liability of church officers and directors. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence” — the same standard typically used as a basis for punitive damages (below). A decision by a church board to continue holding worship services in disregard of government restrictions may constitute gross negligence subjecting board members who participated in the decision to personal liability.
• Reckless inattention to risks can lead to punitive damages, and such damages ordinarily are not covered by a church’s liability insurance policy. This means a jury award of punitive damages represents a potentially uninsured risk. As a result, church leaders should understand the basis for punitive damages, and avoid behavior that might be viewed as grossly negligent. A decision by a church’s leadership to continue holding worship services in disregard of government restrictions may constitute gross negligence subjecting the church to punitive damages.