Something’s rotten at the Supreme Court

Justice Gorsuch wrote a one-paragraph dissent attacking the Supreme Court’s decision to reject a Nevada church’s emergency application. The application sought an injunction stopping the Governor of Nevada from shutting down meaningful church services, even as he allowed vast assemblies at casinos, movie theaters, and other secular sites. What should be more important than a pithy dissent, though, is the Supreme Court’s – and, more specifically, Chief Justice Roberts's -- appalling behavior. It is another reminder of how desperately important it is to return President Trump to the White House.

Calvary Chapel contends that, in response to the Wuhan virus, Governor Sisolak issued Directive 21. This directive

allows large groups to assemble in close quarters for unlimited periods at casinos, gyms, restaurants, bars, indoor amusements parks, bowling alleys, water parks, pools, arcades, and more subject only to a 50%-fire-code-capacity limit. But the directive limits gatherings at places of worship to 50 people max, no matter their facilities’ size or the precautions they take.

The Church included this photograph in its brief:

The Church further alleges that it serves a community of roughly 9,500 people in Dayton, Nevada. Directive 21, which prevents “anything resembling” normal religious services, has affected the Church for three months now. The Church believes that this situation has “caused real spiritual harm” because “Some people who attend Calvary Chapel are unable to view online services, leaving them vulnerable and alone.”

The Church believes that online or drive-in services violate “the Bible’s command that Christians gather for corporate, prayer, worship, and scriptural teaching.” The Church, therefore, “views church gatherings as sacred assemblies that embody Christ on earth….”

Its belief in the sacredness of church attendance has not stopped Calvary Chapel from taking steps to keep its parishioners safe. These steps include, but are not limited to, allowing only 50% church capacity (90 people, instead of 180), imposing social distancing, holding fewer services, requiring face masks, and cutting service lengths in half. Despite all this, the Governor is adamant that the Church may not allow more than 50 people inside at a time, regardless of the church’s available space.

The Governor offers two primary defenses to the charge that he’s negatively singling out the Church. First, he alleges that churches have been the source of major virus outbreaks (a contention that does not take into account Calvary’s significant steps to limit the virus’s spread). Second, he says that the Church is getting treatment that’s equal to or better than other venues. Directive 21 “imposes limits to the lesser of 50% occupancy or 50 people on number activities and venues within Nevada.” As for the casinos, they had to submit “detailed reopening plans.”

The Supreme Court rejected the application out of hand. However, Justices Alito, Kavanaugh, Thomas, and Gorsuch dissented. Gorsuch’s dissent was brief and to the point:

That dissent doesn’t remove the intellectual stain of Gorsuch’s adding the fantasy of “gender identity” to the 1964 Civil Rights Act, something that will haunt religious America for decades to come, but it’s still a good statement.

It’s so good that it is impossible to understand how Chief Justice Roberts could have sided with the leftists on the court. That the leftists would refuse to hear the matter was predictable. However, there is an important constitutional issue here that should concern a true judicial conservative.

Religious worship is among the most essential inalienable rights, as indicated by its place in the First Amendment. Here,we have a situation in which the Nevada order is drawn with such a broad brush that its practical effect is unfair insofar as it allows hundreds of people to pack casinos but bars 90 people from a church that has in place every possible measure to protect parishioners. It clearly elevates mammon, which can be taxed, over God, which cannot.

It’s worth noting that the state has lost only 732 people to the virus, or 0.02% of its population. Most of the cases have been concentrated in Las Vegas, which is more than 400 miles away from Dayton. The recent increase in the number of reported cases seems tied to more testing rather than to an increase in the number of people presenting with serious symptoms.

This is a constitutional no-brainer. Nor is it enough to say that the matter could quickly resolve in any event as the situation on the ground changes. Since the first dissenters arrived in America, religious worship free from discriminatory government orders has been a matter of extreme importance to Americans. Ministering to people’s souls shouldn’t have to wait for the Governor to fiddle around until he gets it right.

(And don’t get me started on the fact that these executive orders have ceased to be emergency responses to an urgent situation and have now, six months later, morphed into long-term tyranny. The virus has been around long enough for state legislatures – that is, the people’s elected representatives – to have a say.)

Justice Roberts was sold to Americans as a conservative. He isn’t. He’s also not a leftist. Instead, he has a very peculiar habit of hewing conservative on the narrow legal issues that are relevant only to a few interested parties and going full-bore leftist on those issues that matter greatly to constitutional liberty in America.

There’s something very wrong at the Supreme Court, and Justice Roberts seems to sit at the heart of the problem. The only way to address the problem is to get one more solid conservative on the Supreme Court. That won’t happen if Biden is elected. Instead, the Supreme Court will abandon the Constitution entirely for the foreseeable future.

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