throbber

`
`1
`
`Cite as: 591 U. S. ____ (2020)
`
`ALITO, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`No. 19A1070
`_________________
`CALVARY CHAPEL DAYTON VALLEY v. STEVE
`SISOLAK, GOVERNOR OF NEVADA, ET AL.
`ON APPLICATION FOR INJUNCTIVE RELIEF
`[July 24, 2020]
` The application for injunctive relief presented to JUSTICE
`KAGAN and by her referred to the Court is denied.
` JUSTICE ALITO, with whom JUSTICE THOMAS and
`JUSTICE KAVANAUGH join, dissenting from denial of appli-
`cation for injunctive relief.
` The Constitution guarantees the free exercise of religion.
`It says nothing about the freedom to play craps or black-
`jack, to feed tokens into a slot machine, or to engage in any
`other game of chance. But the Governor of Nevada appar-
`ently has different priorities. Claiming virtually un-
`bounded power to restrict constitutional rights during the
`COVID–19 pandemic, he has issued a directive that se-
`verely limits attendance at religious services. A church,
`synagogue, or mosque, regardless of its size, may not admit
`more than 50 persons, but casinos and certain other favored
`facilities may admit 50% of their maximum occupancy—
`and in the case of gigantic Las Vegas casinos, this means
`that thousands of patrons are allowed.
` That Nevada would discriminate in favor of the powerful
`gaming industry and its employees may not come as a sur-
`prise, but this Court’s willingness to allow such discrimina-
`tion is disappointing. We have a duty to defend the Consti-
`tution, and even a public health emergency does not absolve
`us of that responsibility.
`
`
`
`

`

`2
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`ALITO, J., dissenting
`I
` Calvary Chapel Dayton Valley is a church located in rural
`Nevada. It wishes to host worship services for about 90 con-
`gregants, a figure that amounts to 50% of its fire-code ca-
`pacity. In conducting these services, Calvary Chapel plans
`to take many precautions that go beyond anything that the
`State requires. In addition to asking congregants to adhere
`to proper social distancing protocols, it intends to cut the
`length of services in half. It also plans 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 that the
`church can be sanitized. According to an infectious disease
`expert, these measures are “equal to or more extensive than
`those recommended by the CDC.” Electronic Court Filing
`in No. 3:20–CV–00303, Doc. 38–31 (D Nev., June 4, 2020),
`p. 6 (ECF).
` Yet hosting even this type of service would violate Di-
`rective 21, Nevada Governor Steve Sisolak’s phase-two reo-
`pening plan, which limits indoor worship services to “no
`more than fifty persons.” ECF Doc. 38–2, §11. Meanwhile,
`the directive caps a variety of secular gatherings at 50% of
`their operating capacity, meaning that they are welcome to
`exceed, and in some cases far exceed, the 50-person limit
`imposed on places of worship.
` Citing this disparate treatment, Calvary Chapel brought
`suit in Federal District Court and sought an injunction al-
`lowing it to conduct services, in accordance with its plan,
`for up to 50% of maximum occupancy. The District Court
`refused to grant relief, the Ninth Circuit denied Calvary
`Chapel’s application for an injunction pending appeal, and
`now this Court likewise denies relief.
` I would grant an injunction pending appeal. Calvary
`Chapel is very likely to succeed on its claim that the di-
`
`
`
`

`

`
`
`3
`
`Cite as: 591 U. S. ____ (2020)
`
`ALITO, J., dissenting
`rective’s discriminatory treatment of houses of worship vio-
`lates the First Amendment. In addition, unconstitutionally
`preventing attendance at worship services inflicts irrepara-
`ble harm on Calvary Chapel and its congregants, and the
`State has made no effort to show that conducting services
`in accordance with Calvary Chapel’s plan would pose any
`greater risk to public health than many other activities that
`the directive allows, such as going to the gym. The State
`certainly has not shown that church attendance under Cal-
`vary Chapel’s plan is riskier than what goes on in casinos.
` For months now, States and their subdivisions have re-
`sponded to the pandemic by imposing unprecedented re-
`strictions on personal liberty, including the free exercise of
`religion. This initial response was understandable. In
`times of crisis, public officials must respond quickly and de-
`cisively to evolving and uncertain situations. At the dawn
`of an emergency—and the opening days of the COVID–19
`outbreak plainly qualify—public officials may not be able to
`craft precisely tailored rules. Time, information, and exper-
`tise may be in short supply, and those responsible for en-
`forcement may lack the resources needed to administer
`rules that draw fine distinctions. Thus, at the outset of an
`emergency, it may be appropriate for courts to tolerate very
`blunt rules. In general, that is what has happened thus far
`during the COVID–19 pandemic.
` But a public health emergency does not give Governors
`and other public officials carte blanche to disregard the
`Constitution for as long as the medical problem persists. As
`more medical and scientific evidence becomes available,
`and as States have time to craft policies in light of that ev-
`idence, courts should expect policies that more carefully ac-
`count for constitutional rights. Governor Sisolak issued the
`directive in question on May 28, more than two months af-
`ter declaring a state of emergency on March 12. Now four
`months have passed since the original declaration. The
`problem is no longer one of exigency, but one of considered
`
`
`
`

`

`4
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`ALITO, J., dissenting
`yet discriminatory treatment of places of worship.
`II
` Calvary Chapel argues that the Governor’s directive vio-
`lates both the Free Exercise Clause and the Free Speech
`Clause of the First Amendment, and I agree that Calvary
`Chapel has a very high likelihood of success on these
`claims.
`
`A
` Under the Free Exercise Clause, restrictions on religious
`exercise that are not “neutral and of general applicability”
`must survive strict scrutiny. Church of Lukumi Babalu
`Aye, Inc. v. Hialeah, 508 U. S. 520, 531 (1993). “[T]he min-
`imum requirement of neutrality is that a law not discrimi-
`nate on its face,” id., at 533, and “[t]he Free Exercise Clause
`bars even ‘subtle departures from neutrality’ on matters of
`religion.” Masterpiece Cakeshop, Ltd. v. Colorado Civil
`Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 17)
`(quoting Church of Lukumi, 508 U. S., at 534). Here, the
`departure is hardly subtle. The Governor’s directive specif-
`ically treats worship services differently from other activi-
`ties that involve extended, indoor gatherings of large
`groups of people.
` The face of the directive provides many examples. While
`“houses of worship” may admit “no more than fifty persons,”
`ECF Doc. 38–2, §11, many favored facilities that host indoor
`activities may operate at 50% capacity. Privileged facilities
`include bowling alleys, §20, breweries, §26, fitness facili-
`ties, §28, and most notably, casinos, which have operated at
`50% capacity for over a month, §35; ECF Doc. 38–3, p. 5,
`sometimes featuring not only gambling but live circus acts
`and shows.
` For Las Vegas casinos, 50% capacity often means thou-
`sands of patrons, and the activities that occur in casinos
`frequently involve far less physical distancing and other
`
`
`
`

`

`
`
`5
`
`Cite as: 591 U. S. ____ (2020)
`
`ALITO, J., dissenting
`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 ca-
`sino owner gave away 2,000 one-way airline tickets to Las
`Vegas. ECF Doc. 38–9, p. 4. And when the Governor an-
`nounced that casinos would be permitted to reopen, he in-
`vited visitors to come to the State.1 The average visitor to
`Las Vegas visits more than six different casinos, potentially
`gathering with far more than 50 persons in each one. ECF
`Doc. 38–6, p. 44. Visitors to Las Vegas who gamble do so
`for more than two hours per day on average, id., at 43, 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. Wor-
`shippers do not customarily travel from distant spots to at-
`tend 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 worship-
`pers do not generally mill around the church while a service
`is in progress.
` The idea that allowing Calvary Chapel to admit 90 wor-
`shippers presents a greater public health risk than allowing
`
`——————
`1 See Jones, Nevada Governor Green-Lights June 4 Reopening of Casi-
`nos; Las Vegas Gets Ready, L. A. Times (May 26, 2020), www.latimes.
`com/travel/story/2020-05-26/nevada-governor-oks-reopening-vegas-prepares.
`
`
`
`

`

`6
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`ALITO, J., dissenting
`casinos to operate at 50% capacity is hard to swallow, and
`the State’s efforts to justify the discrimination are feeble. It
`notes that patrons at gaming tables are supposed to wear
`masks and that the service of food at casinos is now limited,
`but congregants in houses of worship are also required to
`wear masks, and they do not consume meals during ser-
`vices.
` The State notes that facilities other than houses of wor-
`ship, such as museums, art galleries, zoos, aquariums,
`trade schools, and technical schools, are also treated less
`favorably than casinos, but obviously that does not justify
`preferential treatment for casinos.
` Finally, the State argues that preferential treatment for
`casinos is justified because the State is in a better position
`to enforce compliance by casinos, which are under close su-
`pervision by state officials and subject to penalties if they
`violate state rules. By contrast, the State notes, rules for
`houses of worship must be enforced by local authorities.
` This argument might make some sense if enforcing the
`50% capacity rule were materially harder than enforcing a
`flat 50-person rule. But there is no reason to think that is
`so, let alone that it would be compelling enough to justify
`differential treatment of religion. Local officials responsi-
`ble for enforcing maximum occupancy limits during normal
`times presumably know or can easily ascertain the limit for
`particular churches, and the State does not claim that these
`officials have any trouble enforcing those limits. In many
`jurisdictions, buildings that host gatherings are required to
`post their maximum occupancy figure in a prominent loca-
`tion. Enforcing a 50% limit would not require local officials
`to do anything more than divide that figure in half, and
`there is no reason to think that enforcing that limit would
`be any harder than enforcing a 50-person maximum.
` Moreover, even if the State’s special regulatory power
`over casinos could justify different rules for those facilities,
`the State would still have no explanation why facilities like
`
`
`
`

`

`
`
`7
`
`Cite as: 591 U. S. ____ (2020)
`
`ALITO, J., dissenting
`bowling alleys, arcades, and fitness centers are also given
`the benefit of the 50% rule. And while the State suggests
`that it strictly enforces the rules applicable to casinos, pho-
`tos and videos taken in casinos after they were allowed to
`reopen show widespread and blatant safety violations. Pa-
`trons without masks are seen at close quarters, and the
`State has not brought to our attention any evidence that it
`has cracked down on non-complying casinos. The sharp
`spike in COVID–19 cases since the casinos reopened belies
`the State’s strict enforcement claims.
` While the directive’s treatment of casinos stands out,
`other facilities are also given more favorable treatment
`than houses of worship. Take the example of bowling al-
`leys. Some Las Vegas bowling alleys where tournaments
`are held can seat hundreds of spectators, and under the di-
`rective, these facilities may admit up to 50% of capacity.
`Not only that, the State tolerates seating arrangements at
`these facilities that pose far more danger than the plan Cal-
`vary Chapel proposes. An official state guidance document
`states that groups of up to 50 people may sit together in the
`grandstands of a bowling alley provided that they maintain
`social distancing from other groups. ECF Doc. 38–5, p. 9.
`Thus, while Calvary Chapel cannot admit more than 50
`congregants even if families sit six feet apart, spectators at
`a bowling tournament can sit together in groups of 50 pro-
`vided that each group maintains social distancing from
`other groups.
` In sum, the directive blatantly discriminates against
`houses of worship and thus warrants strict scrutiny under
`the Free Exercise Clause.
`
`B
` The directive fares no better under the Free Speech
`Clause. Laws that restrict speech based on the viewpoint
`it expresses are presumptively unconstitutional, see, e.g.,
`Iancu v. Brunetti, 588 U. S. ___, ___–___ (2019) (slip op., at
`
`
`
`

`

`8
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`ALITO, J., dissenting
`4–5), and under our cases religion counts as a viewpoint,
`Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S.
`819, 831 (1995). Here, the Directive plainly discriminates
`on the basis of viewpoint. Compare the directive’s treat-
`ment of casino entertainment and church services. Both in-
`volve expression, but the directive favors the secular ex-
`pression in casino shows over the religious expression in
`houses of worship.
` Calvary Chapel has also brought to our attention evi-
`dence that the Governor has favored certain speakers over
`others. When large numbers of protesters openly violated
`provisions of the Directive, such as the rule against groups
`of more than 50 people, the Governor not only declined to
`enforce the directive but publicly supported and partici-
`pated in a protest. Cf. Masterpiece Cakeshop, 584 U. S., at
`___–___ (slip op., at 14–16). He even shared a video of pro-
`testers standing shoulder to shoulder. The State’s response
`to news that churches might violate the directive was quite
`different. The attorney general of Nevada is reported to
`have said, “ ‘You can’t spit . . . in the face of law and not ex-
`pect law to respond.’ ”2
` Public protests, of course, are themselves protected by the
`First Amendment, and any efforts to restrict them would be
`subject to judicial review. But respecting some First
`Amendment rights is not a shield for violating others. The
`State defends the Governor on the ground that the protests
`expressed a viewpoint on important issues, and that is un-
`doubtedly true, but favoring one viewpoint over others is
`anathema to the First Amendment.
`
`——————
`2 Application 8, and n. 6 (quoting Lochhead, Sisolak, Elected Nevada
`Officials Discuss Systemic Racism, Reform, Las Vegas Review-Journal
`(June 5, 2020), www.reviewjournal.com/news/politics-and-government/
`nevada/sisolak-elected-nevada-officials-discuss-systemic-racism-reform-
`2045833/).
`
`
`
`

`

`
`
`9
`
`Cite as: 591 U. S. ____ (2020)
`
`ALITO, J., dissenting
`C
` Once it is recognized that the directive’s treatment of
`houses of worship must satisfy strict scrutiny, it is apparent
`that this discriminatory treatment cannot survive. Indeed,
`Nevada does not even try to argue that the directive can
`withstand strict scrutiny.
` Having allowed thousands to gather in casinos, the State
`cannot claim to have a compelling interest in limiting reli-
`gious gatherings to 50 people—regardless of the size of the
`facility and the measures adopted to prevent the spread of
`the virus. “[A] law cannot be regarded as protecting an in-
`terest of the highest order . . . when it leaves appreciable
`damage to that supposedly vital interest unprohibited.”
`Church of Lukumi, 508 U. S., at 547 (internal quotation
`marks omitted). And even if the 50-person limit served a
`compelling interest, the State has not shown that public
`safety could not be protected at least as well by measures
`such as those Calvary Chapel proposes to implement.
`D
` The State’s primary defense of the directive’s treatment
`of houses of worship is based on two decisions of this Court.
`Quoting certain language in Jacobson v. Massachusetts,
`197 U. S. 11 (1905), Nevada argues that “when a state ex-
`ercises 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 [in-
`vasion] of rights secured by the fundamental law.’ ” Re-
`sponse to Application 11 (quoting Jacobson, 197 U. S., at
`31).
` Even under this test, the directive’s discriminatory treat-
`ment would likely fail for the reasons already explained.
`And in any event, it is a mistake to take language in Jacob-
`son as the last word on what the Constitution allows public
`officials to do during the COVID–19 pandemic. Language
`
`
`
`

`

`10
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`ALITO, J., dissenting
`in Jacobson must be read in context, and it is important to
`keep in mind that Jacobson primarily involved a substan-
`tive due process challenge to a local ordinance requiring
`residents to be vaccinated for small pox.3 It is a considera-
`ble stretch to read the decision as establishing the test to be
`applied when statewide measures of indefinite duration are
`challenged under the First Amendment or other provisions
`not at issue in that case.
` The State also points to the 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. See South Bay United Pentecostal Church
`v. Newsom, 590 U. S. ___ (2020). I dissented from that de-
`cision, see ibid.; see also id., at ___ (KAVANAUGH, J., dis-
`senting), but even if it is accepted, that 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 fa-
`vorably than certain other facilities, such as factories, of-
`fices, supermarkets, restaurants, and retail stores. But the
`law was defended on the ground that in these facilities, un-
`like in houses of worship, “people neither congregate in
`large groups nor remain in close proximity for extended pe-
`riods.” Id., at ___ (ROBERTS, C. J., concurring) (slip op., at
`2). That cannot be said about the facilities favored in Ne-
`vada. In casinos and other facilities granted preferential
`treatment under the directive, people congregate in large
`groups and remain in close proximity for extended periods.
`
`——————
`3 The Court brushed aside Jacobson’s claims that the challenged law
`violated the Preamble and the spirit of the Constitution. Jacobson, 197
`U. S., at 22. His claim under the Privileges or Immunities Clause of the
`Fourteenth Amendment was doomed by the Slaughter-House Cases, 16
`Wall. 36, 76–80 (1873), and was not addressed by the Court. Finally, the
`Court quickly rejected his equal protection claim, Jacobson, 197 U. S., at
`30, which was based on the law’s exemption for children and persons un-
`der guardianship, see Commonwealth v. Jacobson, decided with Com-
`monwealth v. Pear, 183 Mass. 242, 248, 66 N. E. 719, 722 (1903).
`
`
`
`

`

`
`
`11
`
`Cite as: 591 U. S. ____ (2020)
`
`ALITO, J., dissenting
`E
` An injunction pending appeal is warranted in this case.
`Calvary Chapel’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 eq-
`uities 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.
`*
` *
` *
` I would issue an injunction barring the State, pending
`appeal, from interfering with worship services conducted at
`Calvary Chapel in accordance with its stated plan and the
`general facemask requirement. I therefore respectfully dis-
`sent.
`
`
`
`

`

`
`
`1
`
`Cite as: 591 U. S. ____ (2020)
`
`GORSUCH, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`No. 19A1070
`_________________
`CALVARY CHAPEL DAYTON VALLEY v. STEVE
`SISOLAK, GOVERNOR OF NEVADA, ET AL.
`ON APPLICATION FOR INJUNCTIVE RELIEF
`[July 24, 2020]
` JUSTICE GORSUCH, dissenting from denial of application
`for injunctive relief.
` This is a simple case. Under the Governor’s edict, a 10-
`screen “multiplex” may host 500 moviegoers at any time. A
`casino, too, may cater to hundreds at once, with perhaps six
`people huddled at each craps table here and a similar num-
`ber gathered around every roulette wheel there. Large
`numbers and close quarters are fine in such places. But
`churches, synagogues, and mosques are banned from ad-
`mitting more than 50 worshippers—no matter how large
`the building, how distant the individuals, how many wear
`face masks, no matter the precautions at all. In Nevada, it
`seems, it is better to be in entertainment than religion.
`Maybe that is nothing new. But the First Amendment pro-
`hibits 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.
`
`
`
`

`

`
`
`1
`
`Cite as: 591 U. S. ____ (2020)
`
`KAVANAUGH, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`No. 19A1070
`_________________
`CALVARY CHAPEL DAYTON VALLEY v. STEVE
`SISOLAK, GOVERNOR OF NEVADA, ET AL.
`ON APPLICATION FOR INJUNCTIVE RELIEF
`[July 24, 2020]
` JUSTICE KAVANAUGH, dissenting from denial of applica-
`tion for injunctive relief.
` I join JUSTICE ALITO’s dissent in full and respectfully add
`these further comments.
` Under its current reopening plan, Nevada allows restau-
`rants, bars, casinos, and gyms to grant entrance to up to
`50% of their total occupancy limit—no matter how many
`people that may be. For example, a casino with a 500-per-
`son occupancy limit may let in up to 250 people. By con-
`trast, places of worship may only take in a maximum of 50
`people, without exception, regardless of the occupancy cap.
`So unlike a casino next door, a church with a 500-person
`occupancy limit may let in only 50 people, not 250 people.
`Nevada has offered no persuasive justification for that overt
`discrimination against places of worship. The risk of
`COVID–19 transmission is at least as high at restaurants,
`bars, casinos, and gyms as it is at religious services. Indeed,
`people congregating in restaurants, bars, casinos, and gyms
`often linger at least as long as they do at religious services.
`And given the safety measures that Calvary Chapel and
`other places of worship are following—including social dis-
`tancing, mask wearing, and certain additional voluntary
`measures—it is evident that people interact with others at
`restaurants, bars, casinos, and gyms at least as closely as
`they do at religious services.
` In my view, Nevada’s discrimination against religious
`
`

`

`2
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`KAVANAUGH, J., dissenting
`services violates the Constitution. To be clear, a State’s
`closing or reopening plan may subject religious organiza-
`tions 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. As I will explain,
`Nevada has thus far failed to provide a sufficient justifica-
`tion, and its current reopening plan therefore violates the
`First Amendment.
` In Part I, I will explain how this case fits into the Court’s
`broader religion jurisprudence. In Part II, I will explain
`why Nevada’s treatment of religious organizations is un-
`constitutional under the Court’s precedents.
`I
` Religion cases are among the most sensitive and chal-
`lenging in American law. Difficulties can arise at the outset
`because the litigants in religion cases often disagree about
`how to characterize a law. They may disagree about
`whether a law favors religion or discriminates against reli-
`gion. They may disagree about whether a law treats reli-
`gion equally or treats religion differently. They may disa-
`gree about what it means for a law to be neutral toward
`religion.
` The definitional battles over what constitutes favoritism,
`discrimination, equality, or neutrality can influence, if not
`decide, the outcomes of religion cases. But the parties to
`religion cases and the judges deciding those cases often do
`not share a common vocabulary or common background
`principles. And that disconnect can muddy the analysis,
`build resentment, and lead to litigants and judges talking
`past one another.
` In my view, some of the confusion and disagreement can
`
`

`

`
`
`3
`
`Cite as: 591 U. S. ____ (2020)
`
`KAVANAUGH, J., dissenting
`be averted by first identifying and distinguishing four cate-
`gories of laws: (1) laws that expressly discriminate against
`religious organizations; (2) laws that expressly favor reli-
`gious organizations; (3) laws that do not classify on the ba-
`sis of religion but apply to secular and religious organiza-
`tions alike; and (4) laws that expressly treat religious
`organizations equally to some secular organizations but
`better or worse than other secular organizations. As I will
`explain, this case involving Nevada’s reopening plan falls
`into the fourth category.
` First are laws that expressly discriminate against reli-
`gious organizations because of religion. The recent Espi-
`noza case fell into that category. Espinoza v. Montana
`Dept. of Revenue, ante, p. ___. The State of Montana pro-
`vided tax credits to those who contributed to private school
`scholarship organizations. But there was a significant
`catch: Families eligible for scholarship funds could use
`those funds only at secular private schools, not religious pri-
`vate schools. Cases like that are straightforward examples
`of religious discrimination. And as a general rule, laws that
`discriminate against religion are, in the Court’s words, “odi-
`ous to our Constitution.” Espinoza, ante, at 22 (internal
`quotation marks omitted); see Trinity Lutheran Church of
`Columbia, Inc. v. Comer, 582 U. S. ___ (2017); Good News
`Club v. Milford Central School, 533 U. S. 98 (2001); Rosen-
`berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819
`(1995); Larson v. Valente, 456 U. S. 228 (1982); McDaniel v.
`Paty, 435 U. S. 618, 629 (1978) (Brennan, J., concurring in
`judgment); see also Murphy v. Collier, 587 U. S. ___ (2019)
`(KAVANAUGH, J., concurring in grant of application for
`stay); cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
`U. S. 520 (1993).
` Second are laws that expressly favor religious organiza-
`tions over secular organizations. Examples include cases
`where a legislature affords religious organizations certain
`
`

`

`4
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`KAVANAUGH, J., dissenting
`accommodations, exemptions, or benefits that are not avail-
`able to secular organizations. The legislature might, for ex-
`ample, grant religious organizations a property tax exemp-
`tion that is not available to secular organizations. Cf. Walz
`v. Tax Comm’n of City of New York, 397 U. S. 664 (1970).
`Or the legislature might authorize accommodations for cer-
`tain religious individuals (but not secular individuals) that
`relieve them from the burdens of otherwise-applicable laws,
`such as the draft. See Gillette v. United States, 401 U. S.
`437 (1971). Those kinds of accommodations or exemptions
`can sometimes trigger Establishment Clause challenges be-
`cause of the apparent favoritism of religion. See generally
`American Legion v. American Humanist Assn., 588 U. S.
`___, ___ (2019) (KAVANAUGH, J., concurring); see also Cutter
`v. Wilkinson, 544 U. S. 709 (2005); Board of Ed. of Kiryas
`Joel Village School Dist. v. Grumet, 512 U. S. 687, 722
`(1994) (Kennedy, J., concurring in judgment); Corporation
`of Presiding Bishop of Church of Jesus Christ of Latter-day
`Saints v. Amos, 483 U. S. 327 (1987).
` Third are laws that apply to religious and secular organ-
`izations alike without making any classification on the ba-
`sis of religion. For example, a city fire code may require
`sprinklers in all buildings that can hold more than 100 peo-
`ple. A law like that would cover buildings owned by reli-
`gious organizations and buildings owned by secular organ-
`izations. Those kinds of laws on their face present no
`impermissible discrimination or favoritism.
` To be sure, those kinds of laws, although not differentiat-
`ing between religious and secular organizations, can still
`sometimes impose substantial burdens on religious exer-
`cise. If so, a religious organization may seek an exemption
`in court (if not also in the legislature) to the extent available
`under federal or state law and permissible under the Estab-
`lishment Clause. See, e.g., Our Lady of Guadalupe School
`v. Morrissey-Berru, ante, p. ___; Gonzales v. O Centro Es-
`pírita Beneficente União do Vegetal, 546 U. S. 418 (2006).
`
`

`

`
`
`5
`
`Cite as: 591 U. S. ____ (2020)
`
`KAVANAUGH, J., dissenting
`Or a religious organization may contend that the facially
`neutral law was actually motivated by animus against reli-
`gion and is unconstitutional on that ground. See Lukumi,
`508 U. S. 520.
` Fourth are laws—like Nevada’s in this case—that supply
`no criteria for government benefits or action, but rather
`divvy up organizations into a favored or exempt category
`and a disfavored or non-exempt category. Those laws pro-
`vide benefits only to organizations in the favored or exempt
`category and not to organizations in the disfavored or non-
`exempt category.
` For example, consider a zoning law that places some sec-
`ular organizations (apartment buildings, small retail busi-
`nesses, restaurants, banks, etc.) in a favored or exempt zon-
`ing category, and places some secular organizations (office
`buildings, large retail businesses, movie theaters, music
`venues, etc.) in a disfavored or non-exempt zoning category.
`Suppose that religious properties arguably could be consid-
`ered similar to some of the secular properties in both cate-
`gories. What, then, are the constitutional limits and re-
`quirements with respect to how the legislature may
`categorize religious organizations?
` In those circumstances, the Court’s precedents make
`clear that the legislature may place religious organizations
`in the favored or exempt category rather than in the disfa-
`vored or non-exempt category without causing an Estab-
`lishment Clause problem. See, e.g., Walz, 397 U. S., at 696
`(opinion of Harlan, J.) (“[T]he critical question is whether
`the circumference of legislation encircles a class so broad
`that it can be fairly concluded that religious institutions
`could be thought to fall within the natural perimeter”);
`Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 14 (1989) (plu-
`rality opinion) (expressing approval of subsidies “conferred
`upon a wide array of nonsectarian groups as well as reli-
`gious organizations in pursuit of some legitimate secular
`end”); Concerned Citizens of Carderock v. Hubbard, 84
`
`

`

`6
`
`
`CALVARY CHAPEL DAYTON VALLEY v. SISOLAK
`
`KAVANAUGH, J., dissenting
`F. Supp. 2d 668 (Md. 2000) (State may place religious or-
`ganizations in favored zoning category along with some se

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