If there's one thing Americans have learned from the Supreme Court in 2020, it's this: there are no guarantees. Even now, after a slew of bad decisions, conservatives wanted to believe that when it comes to religious liberty, even Chief Justice John Roberts couldn't get that wrong. Well, think again. When it comes to siding with the Constitution, even Vegas will tell you -- don't bet on Roberts.
Even by the Left's estimation, Friday's case was cut and dried. When Nevada's governor, Steve Sisolak (D) decided to open casinos to thousands of people -- but cap church attendance at 50 -- the lawsuit almost wrote itself. As far as First Amendment violations go, experts thought, this was textbook. "Not only is this disparate treatment," Senator Josh Hawley (R-Mo.) argued on "Washington Watch," but "the Constitution of the United States gives churches and the right to worship a special status." So, imagine everyone's surprise -- including the liberal media's -- when this case was fast-tracked to the Supreme Court for emergency action, and the liberal majority refused to intervene!
To the absolute astonishment of everyone, Roberts and the other liberal justices decided that casinos should have more freedom to operate than the houses of worship legally protected by the Constitution. "It's quite remarkable," Alliance Defending Freedom's David Cortman said. And the other four justices agreed. In a pair of biting dissents, Samuel Alito and Neil Gorsuch, tried to understand how anyone -- let alone five members of the U.S. Supreme Court -- could justify the "right" to play craps over the free exercise of religion.
"The world we inhabit today, with a pandemic upon us, poses unusual challenges," Gorsuch agreed. "But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel." The Constitution, Alito piled on, "says nothing about the freedom to play... blackjack, to feed tokens into a slot machine, or to engage in any other game of chance." And while we're on the subject of the pandemic, he wonders, how does the court square the risks of a casino, packed with "thousands of patrons," eating, drinking, and "far less physical distancing," with a church that has strict safety measures in place? It's obvious why Nevada would prioritize casinos, since over a third of the state's revenue comes from gambling. But from a pure health perspective, it makes no sense. And even less, Hawley pointed out, from a legal one.
"[We are in] big trouble," he said. "Big trouble." "I mean, it's bad enough that churches in Nevada and elsewhere are being treated as second-class institutions... worse than liquor stores or gambling halls or casinos or whatever else. That's bad enough... But this decision on Friday, this is antithetical to the rule of law. [It's] dangerous." It's also, he believes, "quite significant that the majority was silent. They didn't write [an opinion]." Maybe, he said, because it's unjustifiable. But either way, Hawley shook his head, "I'd love to see them try to explain this outrageous decision."
And he's not the only one. Outlets from Vox to National Review scratched their collective heads at how the court could get this so wrong. At the Wall Street Journal, the editors wondered what happened to the reliable SCOTUS on religious freedom? "[D]uring the pandemic, it has been missing in action." Even liberal reporters thought the case was a slam dunk and struggled to explain how Nevada's churches could bring such "an unusually strong challenge" to the governor and "los[e] anyway."
What are Americans supposed to do when the deck is so obviously stacked against them? "We've got elected officials in some states who are disregarding the laws of probably their state and certainly of the United States Constitution. And we have the United States Supreme Court that thinks that it's a super legislature, [making] up the law as it goes along..." Hawley argued. What the justices did, he said, "is even worse than taking a pass." They endorsed discrimination -- plain and simple. And while he's asked the Justice Department to open a civil rights investigation in these states, "We should not lose sight of the fact that the Supreme Court is falling down on its constitutional responsibilities here... The imperial judiciary lives," he warned. "...And this Supreme Court is as imperial a court as we have ever had.
Americans have been dealt a bad hand from the Supreme Court in 2020. But rolling the dice with our First Freedom? That's something no one can excuse.
