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Op-ed

Horowitz: SCOTUS rules Nevada churches can be restricted more than casinos

Blatant discrimination

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"Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people." ~John Adams

Viruses spread more efficiently in churches than in casinos. That is the upshot of the latest Supreme Court ruling, denying fundamental First Amendment rights under the guise of protecting public safety.

In Calvary Chapel Dayton Valley v. Sisolak, a large church in Dayton, Nevada, sued the governor for limiting church capacity to just 50 people. Anyone else who wants to pray, even following all of the masking and distancing guidelines, must be turned away. Meanwhile, in an obvious catering to special interests, casinos, gyms, restaurants, and bars can entertain up to 50 percent capacity, even if that includes several hundred people. Nobody thought this could pass constitutional muster, but once again Chief Justice John Roberts sided with the four liberals and denied an appeal from the church.

"A casino with a 500-person occupancy limit may let in up to 250 people," but "a church with a 500-person occupancy limit may let in only 50 people," said Justice Kavanaugh in a separate dissent. There were also dissents from the other three justices, Alito, Thomas, and Gorsuch.

It's truly shocking how four months into this pandemic, governors continue to violate constitutional rights without legislative input and without any benchmarks, time limits, or transparency measures that demonstrate they are using the least restrictive means of achieving a vital state interest when they conflict with individual rights. But this case is worse, because it demonstrates blatant discrimination against a protected right to gather for religious services.

If anything, as Justice Alito pointed out, churches are a calmer, more stable environment in which it is easier to keep a distance than casinos, which are the paradigm of dynamic and wild movement and intermingling.

"For Las Vegas casinos, 50% capacity often means thousands of patrons, and the 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," wrote Justice Alito in his dissent. "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."

Not only that, casinos tend to attract people from all over the country, as opposed to community churches.

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.

The majority of justices who denied the appeal did not explain their rationale in a written opinion. But I think we already know what it is. We no longer have equal justice under the law, but rather preferential treatment for special interests. It is the same reason that rioters have been exempted from public gathering restrictions, even though they are, by their very nature, out of control and against protocol. It's why New York Mayor Bill de Blasio canceled all summer parades but encouraged BLM protests to continue, regardless of the size. Contra Costa, California, bans gatherings over 12 people, but has allowed protests up to 100. And I'm sure if they went over the limit, it wouldn't be the protesters who would have to fear reprisal, but the cops.

What has become clear is that ordinary Americans seeking to exercise their fundamental rights in the face of unprecedented tyranny have no pathway to protection through the courts. The courts are giving standing to foreign nationals or their proxies to sue for visa issuance to get around the epidemic-driven travel suspensions, yet American citizens can't pray in church. Criminals and illegal aliens can get standing to be released from prison under the guise of stopping the spread of COVID-19, but we must put masks on our two-years olds. Suddenly, the right to privacy that plays so prominently in case law regarding abortion has no legal standing when it comes to our own bodily integrity.

At this point, our only appeal must be to the heavenly court.

One last thing…
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