"A plague o' both your houses!"

A few preliminary thoughts on the 5-4 SCOTUS decision in Calvary Chapel.

I'm somewhat sympathetic to both sides of the Court--but, like Mercutio, quite unsympathetic to both of the warring parties. /1

https://www.supremecourt.gov/opinions/19pdf/19a1070_08l1.pdf

The majority, including the Chief Justice, understandably wants to stem the flood of cases in federal court challenging distinctions drawn in the thousands of *ever-evolving* COVID-related executive orders attempting to balance health risks and other important considerations. /2

Even Justice Kavanaugh goes out of his way to signal that he's not amenable to such challenges outside the Free Exercise context (e.g., substantive due process claims of commercial establishments). /3

Moreover--and this is something the dissenters never come to grips with--it'd be unconstitutional to give churches a *preference* vis-a-vis other, analogous assemblies for expressive purposes, such as lectures, concerts, etc. To rule for the church here, then ... /4

... would open the door wide for many additional high-risk activities. There are also compelling anti-entanglement reasons for not allowing worship services to open subject to the same, detailed health measures that apply to some commercial enterprises. /5

No one would be comfortable w/the sort of policing in the pews that would be necessary to enforce those rules--and therefore, in most jurisdictions, there'd be lax or no enforcement. Which would mean a significant increase in spread of the virus, as experience has shown. /6

On the other hand, the dissenters are right to be outraged at Nevada's cavalier deference to bars, gyms and, especially, casinos. I've only read NV's brief in the SCOTUS and the short declaration of its Chief Medical Officer, but neither offers any serious justification ... /7

... for NV's lax treatment of those entities. Nevada argues briefly that casinos are highly regulated, and that therefore safety rules would in theory be easier to enforce there. But it doesn't offer evidence that they *are* being seriously enforced in casinos (or in bars). /8

Contrary to Justice Kavanaugh's opinion, I believe NV has--for rather obvious reasons--declined to offer the courts an "economic rationale," e.g., that it's willing to risk the spread of contagion in order "to jump-start business activity." It sure is hard, however, ... /9

... to avoid the suspicion that that's what's happening here.

Even so, it doesn't follow that NV's dismaying deference to gambling should afford churches--and, as noted above, *all other analogous expressive assemblies*--a constitutional right to exemptions ... /10

... that would only exacerbate the severe health risks caused by opening casinos. If the Court required Nevada to "equalize up or down," at its choosing (cf. Texas Monthly), the State might well opt for serving both god and mammon, with the quite literal result ... /11

... of a plague on both houses. (And on top of that, consider the additional harms when *secular* expressive gatherings are also exempted, as the 1A would require.)

That, of course, would be the worst of all possible results. "Never was a story of more woe than this ..." /12