Supreme Court Justice Samuel Alito on Thursday criticized his colleagues’ decision not to consider two lawsuits in which churches fought state coronavirus worship restrictions.
The restrictions, put in place by California and Nevada, “blatantly” disregarded the First Amendment, Alito said while speaking at the Federalist Society’s National Lawyers Convention. Alito pointed to the facts in the cases, which the Supreme Court declined this summer, as an example of a way in which religious liberty is “fast becoming a disfavored right.”
“If you go to Nevada, you can gamble, drink, and attend all sorts of shows, but here’s what you can’t do. If you want to worship, and you are the 51st person in line, sorry, you are out of luck,” Alito said, singling out Nevada Gov. Steve Sisolak for criticism.
“The state’s message is this: Forget about worship and head to the slot machines — or maybe a Cirque du Soleil show,” the judge added. Alito in June, when the court dismissed the case, wrote a dissent in which he made similar points.
Sisolak during the pandemic capped church attendance at 50 people. He limited other indoor gatherings to 50%, leading many to allege that his restrictions treated businesses more favorably than churches. The Trump campaign in August highlighted the inconsistency by holding an “Evangelicals for Trump” rally inside a Las Vegas casino as many churches in other states resisted their own governors’ shutdown orders.
Alito on Wednesday said that by deferring to Sisolak, the court washed its hands of responsibility to the First Amendment, allowing Nevada to favor business interest over personal faith.
He also decried the cases against religious groups and individuals more broadly, pointing specifically to the Little Sisters of the Poor’s nearly 10-year battle against an Obama-era contraception mandate.
“For many today, religious liberty is not a cherished freedom,” Alito said. “It’s often just an excuse for bigotry, and it can’t tolerated. Even when there is no evidence that anyone has been harmed.”
