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SCOTUS: Roberts joins liberals again to deny religious protection from discriminatory coronavirus lockdown

SCOTUS: Roberts joins liberals again to deny religious protection from discriminatory coronavirus lockdown

Gorsuch Dissent: “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.”

Last night, Supreme Court Chief Justice John Roberts joined the four liberal justices to deny injunctive relief to a church in Nevada which claimed that lockdown rules discriminated against religious groups, allowing much more lenient reopening for secular businesses such as casinos.

This case was similar to the case from California, which we wrote about in late May, SCOTUS: Roberts Joins Liberals To Reject Injunction in California Religious Discrimination Lockdown:

The Supreme Court has handed petty tyrants throughout the land license to discriminate against religious groups in ordering pandemic lockdowns and restrictions. From this point forward an argument that had succeeded in many lower courts will hold no sway.

That argument ran something like this: Religious groups should not be subjected to more harsh treatment than similarly situated secular groups. So you can’t ban drive-up church services if you don’t ban drive-up secular services such as fast food restaurants and liquor stores. If a religious group practiced the same ‘social distancing’ and other safety practices as others, then the First Amendment prevented states and cities from treating religious groups differently.

In the California case, the Court denied an injunction in an Order without opinion, with the four conservative justices (Alito, Thomas, Gorsuch, Kavanaugh) stating they would have granted the injunction. Chief Justice Roberts was part of the majority rejecting the injunction, and wrote a concurring opinion explaining his reasoning. The short version is that this is a pandemic and the courts shouldn’t second-guess politicians….

Now Roberts has done it again in a case that showed even more stark religious discrimination, Calvary Chapel Dayton Valley v. Sisolak.

The Emergency Application for Injunction provided, in part:

The Free Exercise Clause protects the exercise of religion. No constitutional provision protects the right to gamble at casinos, eat at restaurants, or frolic at indoor amusement parks. Accordingly, under this Court’s Rules 20, 22, and 23, and 28 U.S.C. 1651, Applicant Calvary Chapel Dayton Valley respectfully requests an injunction pending appellate review allowing the church to hold in-person worship services on the same terms as comparable secular assemblies in keeping with its comprehensive health and safety plan. Calvary Chapel only seeks to host about 90 people at a socially-distanced church service, while the Governor allows hundreds to thousands of people to gamble and enjoy entertainment at casinos.

In fact, Governor Sisolak’s Directive 021,1 which has now been extended through July 31, 2020,2 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-codecapacity limit. But the directive limits gatherings at places of worship to 50 people max, no matter their facilities’ size or the precautions they take.

This image of people together was included in the Application:

This should have been an easy case. But the Court denied injunctive relief without opinion by the majority. Justice Gorsuch’s dissent succinctly described this legal outrage:

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 number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting 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 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.

Justice Alito, joined by Thomas and Kavanaugh, wrote a separate lengthy dissent:

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. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.

* * *

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 religious 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 interest 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.

Justice Kavanaugh filed his own separate dissent (p. 13 of this pdf.)

In my view, Nevada’s discrimination against religious services violates the Constitution. 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. As I will explain, Nevada has thus far failed to provide a sufficient justification, and its current reopening plan therefore violates the First Amendment.

And you thought we had a “conservative” majority on the Supreme Court.


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Roberts is the Devil who was in disguise and is no longer

    notamemberofanyorganizedpolicital in reply to gonzotx. | July 25, 2020 at 2:48 pm

    When Roberts was up for nomination under Bush jr. all the online political news sites that were not expressly conservative, were running wild with speculation that Roberts was gay.


      Someone just doesn’t act as bizarre as Roberts (given his usual self prior to the ‘obamacare’ scam ruling he made).

      Would you sell your country out to save embarrassment, or would you come forward and do the right thing?

      Roberts didn’t. Trump should expand the court, because the next democrat in the White House is going to do exactly that.

    You just know Epstein has tons of videos of Roberts boinking underage girls.

    There is no other explanation for this guy’s insanity.

Just so disappointing, beyond words

We really are in some dystopian horror story.

Boy those must be some good pictures they have of Roberts. Or maybe the cocktail parties are worth it?

    brightlights in reply to forksdad. | July 25, 2020 at 12:24 pm

    Nah…Its not pictures. Its the fact that the way he and his wife adopted their son & daughter was shady at best, possibly illegal. Holder probably found the records and ‘casually’ mentioned it to Roberts.

    The kids are from Ireland and its illegal there to have a foreign adoption. So the moms, the kids aren’t related, and/or the babies were flown to a South/Central American country and registered as citizens just long enough for the adoption to go through. It was kinda odd that their blond haired/blue eyed kids were ‘from’ a Latin country.

      Kepha H in reply to brightlights. | July 25, 2020 at 8:53 pm

      You’d be surprised how many white Latinos there are. I teach high school ESOL, and I’ve had Central American students with both last names as Spanish as ever you’d like, but they could’ve passed for Scandinavian.

We’re not voting our way out of this. There is only one end result.

    The key is to re-elect Trump in an historic landslide that will carry the day for a GOP House victory. Screw the Senate. We could elect 100 GOP senators and still lose everything by one vote.

    The #resist unicrats are again convinced of a major victory in November as they were in 2016. Losing big AGAIN will trigger new violent urban chaos (aka “peaceful protests”) setting the stage for major “enough is enough” push back. Even Mark “slash” Levin, while not advocating for violence, was predicting its inevitability for us to restore constitutional law and order.

    The real question is whether the Dems will succeed in stealing the election.

If he’s worried about his supposed “legacy” as Chief Justice (i.e., “the Roberts Court”), he should stop. It’s gone.

Mosques are theoretically subject to this law. But no one seriously believes that a Communist governor, a Communist state attorney general, and a Communist state legislature will enforce the law against mosques.

    You hit on my litmus test: would they rule the same against a mosque?
    No way. It would have been 9-0 for the mosque.
    Even these black robes bureaucrats like their heads attached.

      Milhouse in reply to lichau. | July 26, 2020 at 3:16 am

      Yes, it would have been exactly the same for a mosque. If you claim otherwise the onus is on YOU to prove it.

    And your basis for that supposition? None at all. There is no question that the same rule is enforced equally against mosques. Anyone who claims otherwise without serious proof is a nut.

We are now accepting your offerings at the slot machines or blackjack tables set up in the sanctuary.

filiusdextris | July 25, 2020 at 10:57 am

I see it as a stupidity more than a betrayal, in which case all five liberal justices are to blame. They’ve kowtowed to the media gaslighting on COVID, so the media are even worse. Still, more fundamentally, the media would not be able to work its black magic in this area if society did not have an unnatural fear of death. Whether because death is inevitable or because it’s the herald of better things, we must not cower in fear, run away, or contort true and right action. That’s perhaps even diabolic. We have to get religion back in our society, otherwise these untruths, like yesterday’s SCOTUS decision, will continue.

Let’s hope we don’t see anymore paeans to Mitch “the cocaine turtle” McConnell and his fellow phony corruptocrats like Lindsay Grahamnesty on these pages anymore. I expect he will be handing over the Senate to the Dems the same way Ryan did the House in 2016.

I get that Roberts as a matter of preference, wishes to make the court appear non-partisan and wants more consensus decisions arriving at 9/0, 8/1, 7/2 vs more contentious 5/4 splits.

This decision doesn’t achieve that. It was a 5/4 split on what should have been an easy call. Nevada can’t overcome the burden of strict scrutiny. This isn’t new or controversial ground being ploughed.

Even though their was no opinion written to accompany the decision, so no easily cited precedent was created, that makes it worse. IMO, if the court is going to ignore decades of precedent then they have an obligation to explain why.

The lack of any explanation with the ruling leaves a void. That void can only be filled with the reality that the court can’t make a reasonable argument or explanation in support of their decision. Thus, the court has made a politicized decision decision without opinion that is contrary to precedent.

I look forward to Roberts applying the same logic in a future abortion case, overturning Roe by a 5/4 split without opinion. Let’s see if he can be consistent, I doubt it.

Sarcasm aside, this is the court endorsing executive acts undertaken by use of ’emergency’ powers several months into the ’emergency’. Will the same deference for executive action be granted to the Federal executive invoking emergency powers? If not, why not?

The totality of the circumstances of this decision makes this, IMO, the single worst decision of the Roberts Court. It is indefensible.

    brightlights in reply to CommoChief. | July 25, 2020 at 12:27 pm

    If Trump wins and Ginsberg kicks the bucket so he can replace her with a conservative I wonder if Roberts will throw a hissy that he might be out voted on decisions.

      DSHornet in reply to brightlights. | July 25, 2020 at 3:17 pm

      If a “progress”ive justice is replaced by a genuine conservative, the Court will tend to go 5-4 in a better direction. Roberts will be able to vote along the “progress”ive line to satisfy any blackmailers and we will still get the Court back on the proper track. If this happens, he may throw neither a hissy nor a conniption. Or, if he does for the theatricality, we’ll still be better off.

    zennyfan in reply to CommoChief. | July 25, 2020 at 7:28 pm

    Of course not — if Trump would be exercising those powers. Roberts would say a president has the power, but not Trump because Roberts wouldn’t like his reasoning for doing so.

The situation is getting more dangerous. When the courts will not protect the Constitutional (and in this case also natural ) rights of individuals, the individuals will be forced to protect their own rights. That is when things either turn violent, or liberty disappears into the soulless abyss of statism. A true lose lose situation, brought about by spineless, corrupt judges.

Roberts must be dumb as a rock. If masks are effective, then why restrict chruch-goers?

    filiusdextris in reply to Guardian79. | July 25, 2020 at 12:44 pm

    If masks worked, why did they set all the felons loose?

    randian in reply to Guardian79. | July 25, 2020 at 2:23 pm

    If masks are effective, why must everybody wear one? The only people at significant risk are the elderly and the immunocompromised (cancer treatments, AIDS, steroid medications, etc). They should wear masks to protect themselves, if masks are indeed effective, and there is substantial evidence they aren’t.

      gibbie in reply to randian. | July 25, 2020 at 2:58 pm

      Masks decrease to a small degree the probability of the wearer’s getting infected, but they decrease to a much larger degree the probability of the wearer infecting others.

      People at significant risk should isolate themselves carefully. Everyone should wear masks in public.

        Ironclaw in reply to gibbie. | July 27, 2020 at 1:00 pm

        You really bought into the bullshit, didn’t you? If you’re wearing a mask and it works then you don’t need me to wear one.

          JasonL in reply to Ironclaw. | July 27, 2020 at 1:23 pm

          Unless you are yourself infected. The logic isn’t wrong. However, the lousy masks available and their incorrect use (including reuse) undermines the case.

          Really, just isolating those at risk and not tanking the economy, and keeping people outdoors if they are not at risk would have been much better.

          gibbie in reply to Ironclaw. | July 27, 2020 at 6:14 pm

          No. Actually you seem incapable of rational thought.

          gibbie in reply to Ironclaw. | July 27, 2020 at 6:19 pm

          JasonL, Thanks for your semi-support. The main benefit of a mask is to deflect a person’s breath, sneezes, and coughs. It doesn’t matter very much if it’s poorly made, or used. It’s about probability, not perfection.

Sad state of affairs when the majority won’t memorialize why they are in support of their own findings

rabid wombat | July 25, 2020 at 11:36 am

More about reading and thinking, versus interpreting…

The plain reading should have answered this well before the SCOTUS got this….

Stumbled over some curious postings and John Roberts is under fire. Could be wild fabrications; yet, if even a fraction of it has merit it’s frightening stuff . . .

The site drops some interesting info re: Judge Sullivan’s son (that Google doesn’t source, but DuckDuckGo does).

And Adam Schiff . . .

Fake News is an EOE?

    notamemberofanyorganizedpolicital in reply to DuxRedux. | July 25, 2020 at 5:10 pm

    Everything in the paragraphs except the ones above these and the bottom one have long been verified.


    “Roberts directed, approved, and covered for illegal surveillance against President Trump, General Flynn, political adversaries, business rivals, and U.S. and Foreign citizens. He covered for illegal activities committed by our intelligence agencies here and abroad.
    He personally ignored and “wrote past” (gave approval) for the torture of American citizens on U.S. soil and overseas,as well as foreign citizens. Roberts conspired with, suggested, directed, and protected illegal elements (people) and operations within our intelligence and legal
    agencies. “She was never supposed to lose”. The Coup continues.
    So, back to the original question, “what do they have on Roberts”?
    The answer is all of the above AND there are detailed recordings of Justice Roberts discussing, suggesting, negotiating, and approving the replacement for Justice Antonin Scalia, PRIOR TO HIS “SUDDEN” DEATH.

So are there any portions of the First Amendment which haven’t been struck down yet?

Escaped from RI | July 25, 2020 at 12:33 pm

I’m so very glad I donated my hard earned money to Republican Presidential Candidates so they
could nominate strong conservatives to the court.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof but a state governor has the option of stopping any religious observance if they choose to do so.

Fixed the constitution for Roberts, he can thank me later for it.

nordic_prince | July 25, 2020 at 2:06 pm

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Seems pretty clear-cut to me, but then I haven’t had the luxury of years of study in jurisprudence to addle my brain.

I wonder if all these fools cheering the capricious violations of religious freedom would welcome with approbation the same treatment of the freedom of the press. All in the name of “public health and safety,” of course.

ThePrimordialOrderedPair | July 25, 2020 at 2:08 pm

These endless Rule by Emergency Fiat dictats are all un-Constitutional, in and of themselves. The idea that anyone gains such broad emergency powers to fight a disease that has a black death-like killing rate of 0.26% is intellectually offensive. That is has gone on for months and months without any legislation (and the courts have even slapped back legislatures that have sued for their actual powers) is totally insane. It’s beyond insane. This is as un-American as anything in our history, and it bodes so ill for the future (who knows what else the petit tyrants will be taking over all control for … the seasonal flu is more deadly for people under 80 than the Wuhan virus) that there are hardly words for this.

Benedict Roberts should have been impeached and thrown off the court years ago. He is a retarded traitor of the worst sort. He has done no9thing but make a total mockery of the Constitution and the very idea of the Rule of Law. The only bench he is fit to sit on is a park bench.

Pennsylvania SC stopped a attempt by the state house of representatives to end Emperor Wolf’s reign.

As I have said for over a decade, it is unsound thinking to expect SCOTUS to restrict the reach of SCOTUS. The whole “elect strict constructionist judges” is deployed to justify voting for Republicans. The appropriate response to an overreaching SCOTUS is to strip away its purview, to remove areas from its appellate jurisdiction. One should also be reducing the phalanx of federal courts, NONE of which are required by the Constitution.

Conflict between branches is what prevents a encroachment by any one of them. Of course, Turtle and, in the House previously, the worthless Paul Ryan, would never dream of taking SCOTUS overreach seriously. No, they want to justify their own election as our saviors. It’s like the NRA, which sucks up huge funds, does almost nothing to advance gun rights, then capitalizes on its failures to justify more funding in a perpetual emergency.

I didn’t vote for more of the same from Trump, but that is what he has given me. No wall. No ejection of the dratted DACAns, no end to birthright citizenship, no elimination of millions of Chinese spy-students.

At least he has finally ramped up federal policing. Slightly. Even this is mostly hot air.

broomhandle | July 25, 2020 at 3:31 pm

But can the brothels stay open?

Churches are often registered with the IRS as 501c3 non-profit organizations / corporations and there are limitations to political, lobbying and election year issues they can engage in. Might that be a consideration in SCOTUS deciding whether the gov’t can regulate a church more than a casino?

    zennyfan in reply to MrE. | July 25, 2020 at 7:52 pm

    There is that once-celebrated but mow apparently essentially worthless (except for “peaceful protests” and leftist speech) First Amendment that once protected churches from this. No more, though. Right, Mr. Roberts?

ThePrimordialOrderedPair | July 25, 2020 at 5:16 pm

I wish people would stop trying to excuse Benedict Roberts with this “blackmail” stuff. He isn’t being blackmailed. He isn’t being threatened. He is just a miserable traitor who has no respect for the COnstitution, America, or the Rule of Law. He is a despicable lowlife. No blackmail involved. He is what he is, an ass who couldn’t argue his way out of a wet paper bag who has no business sitting in judgment of anyone or anything. He should be teaching shop for 7th graders somewhere … somewhere in some socialist sh*thole, where he belongs.

The only excuse for Benedict Roberts’ insane and anti-American decisions is that Benedict Roberts is insane and anti-American. He is making the decisions he wants to make.

Subotai Bahadur | July 25, 2020 at 8:21 pm

It is simple. Roberts is rehearsing for the day when he formally replaces RBG’s vote on the Court.

Subotai Bahadur

And here I thought John Roberts was a man of religious faith.

Funny how Roberts couldn’t summon the same humility in his re-writing Title VII to include homosexuals and trannies, and, in denying POTUS the ability to undo DACA, without jumping through endless hoops.

This guy is such a greasy, transparently self-serving and hypocritical poser. His entire jurisprudence is grounded in sophistry, narcissism and political considerations.

How does it happen we have come down to one man deciding the fate of an entire nation?

Antifundamentalist | July 27, 2020 at 1:58 pm

Who is Justice Roberts taking bribes from?