                 Cite as: 591 U. S. ____ (2020)            1

                     ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 19A1070
                         _________________


    CALVARY CHAPEL DAYTON VALLEY v. STEVE
      SISOLAK, GOVERNOR OF NEVADA, ET AL.
         ON APPLICATION FOR INJUNCTIVE RELIEF
                        [July 24, 2020]

   The application for injunctive relief presented to JUSTICE
KAGAN and by her referred to the Court is denied.
   JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE KAVANAUGH join, dissenting from denial of appli-
cation for injunctive relief.
   The Constitution guarantees the free exercise of religion.
It says nothing about the freedom to play craps or black-
jack, to feed tokens into a slot machine, or to engage in any
other game of chance. But the Governor of Nevada appar-
ently has different priorities. Claiming virtually un-
bounded power to restrict constitutional rights during the
COVID–19 pandemic, he has issued a directive that se-
verely limits attendance at religious services. A church,
synagogue, or mosque, regardless of its size, may not admit
more than 50 persons, but casinos and certain other favored
facilities may admit 50% of their maximum occupancy—
and in the case of gigantic Las Vegas casinos, this means
that thousands of patrons are allowed.
   That Nevada would discriminate in favor of the powerful
gaming industry and its employees may not come as a sur-
prise, but this Court’s willingness to allow such discrimina-
tion is disappointing. We have a duty to defend the Consti-
tution, and even a public health emergency does not absolve
us of that responsibility.
2       CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                      ALITO, J., dissenting

                               I
   Calvary Chapel Dayton Valley is a church located in rural
Nevada. It wishes to host worship services for about 90 con-
gregants, a figure that amounts to 50% of its fire-code ca-
pacity. In conducting these services, Calvary Chapel plans
to take many precautions that go beyond anything that the
State requires. In addition to asking congregants to adhere
to proper social distancing protocols, it intends to cut the
length of services in half. It also plans to require six feet of
separation between families seated in the pews, to prohibit
items from being passed among the congregation, to guide
congregants to designated doorways along one-way paths,
and to leave sufficient time between services so that the
church can be sanitized. According to an infectious disease
expert, these measures are “equal to or more extensive than
those recommended by the CDC.” Electronic Court Filing
in No. 3:20–CV–00303, Doc. 38–31 (D Nev., June 4, 2020),
p. 6 (ECF).
   Yet hosting even this type of service would violate Di-
rective 21, Nevada Governor Steve Sisolak’s phase-two reo-
pening plan, which limits indoor worship services to “no
more than fifty persons.” ECF Doc. 38–2, §11. Meanwhile,
the directive caps a variety of secular gatherings at 50% of
their operating capacity, meaning that they are welcome to
exceed, and in some cases far exceed, the 50-person limit
imposed on places of worship.
   Citing this disparate treatment, Calvary Chapel brought
suit in Federal District Court and sought an injunction al-
lowing it to conduct services, in accordance with its plan,
for up to 50% of maximum occupancy. The District Court
refused to grant relief, the Ninth Circuit denied Calvary
Chapel’s application for an injunction pending appeal, and
now this Court likewise denies relief.
   I would grant an injunction pending appeal. Calvary
Chapel is very likely to succeed on its claim that the di-
                  Cite as: 591 U. S. ____ (2020)            3

                      ALITO, J., dissenting

rective’s discriminatory treatment of houses of worship vio-
lates the First Amendment. In addition, unconstitutionally
preventing attendance at worship services inflicts irrepara-
ble harm on Calvary Chapel and its congregants, and the
State has made no effort to show that conducting services
in accordance with Calvary Chapel’s plan would pose any
greater risk to public health than many other activities that
the directive allows, such as going to the gym. The State
certainly has not shown that church attendance under Cal-
vary Chapel’s plan is riskier than what goes on in casinos.
   For months now, States and their subdivisions have re-
sponded to the pandemic by imposing unprecedented re-
strictions on personal liberty, including the free exercise of
religion. This initial response was understandable. In
times of crisis, public officials must respond quickly and de-
cisively to evolving and uncertain situations. At the dawn
of an emergency—and the opening days of the COVID–19
outbreak plainly qualify—public officials may not be able to
craft precisely tailored rules. Time, information, and exper-
tise may be in short supply, and those responsible for en-
forcement may lack the resources needed to administer
rules that draw fine distinctions. Thus, at the outset of an
emergency, it may be appropriate for courts to tolerate very
blunt rules. In general, that is what has happened thus far
during the COVID–19 pandemic.
   But a public health emergency does not give Governors
and other public officials carte blanche to disregard the
Constitution for as long as the medical problem persists. As
more medical and scientific evidence becomes available,
and as States have time to craft policies in light of that ev-
idence, courts should expect policies that more carefully ac-
count for constitutional rights. Governor Sisolak issued the
directive in question on May 28, more than two months af-
ter declaring a state of emergency on March 12. Now four
months have passed since the original declaration. The
problem is no longer one of exigency, but one of considered
4       CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                      ALITO, J., dissenting

yet discriminatory treatment of places of worship.
                            II
  Calvary Chapel argues that the Governor’s directive vio-
lates both the Free Exercise Clause and the Free Speech
Clause of the First Amendment, and I agree that Calvary
Chapel has a very high likelihood of success on these
claims.
                                 A
   Under the Free Exercise Clause, restrictions on religious
exercise that are not “neutral and of general applicability”
must survive strict scrutiny. Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520, 531 (1993). “[T]he min-
imum requirement of neutrality is that a law not discrimi-
nate on its face,” id., at 533, and “[t]he Free Exercise Clause
bars even ‘subtle departures from neutrality’ on matters of
religion.” Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 17)
(quoting Church of Lukumi, 508 U. S., at 534). Here, the
departure is hardly subtle. The Governor’s directive specif-
ically treats worship services differently from other activi-
ties that involve extended, indoor gatherings of large
groups of people.
   The face of the directive provides many examples. While
“houses of worship” may admit “no more than fifty persons,”
ECF Doc. 38–2, §11, many favored facilities that host indoor
activities may operate at 50% capacity. Privileged facilities
include bowling alleys, §20, breweries, §26, fitness facili-
ties, §28, and most notably, casinos, which have operated at
50% capacity for over a month, §35; ECF Doc. 38–3, p. 5,
sometimes featuring not only gambling but live circus acts
and shows.
   For Las Vegas casinos, 50% capacity often means thou-
sands of patrons, and the activities that occur in casinos
frequently involve far less physical distancing and other
                     Cite as: 591 U. S. ____ (2020)                    5

                          ALITO, J., dissenting

safety measures than the worship services that Calvary
Chapel proposes to conduct. 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. Casinos attract patrons from
all over the country. In anticipation of reopening, one ca-
sino owner gave away 2,000 one-way airline tickets to Las
Vegas. ECF Doc. 38–9, p. 4. And when the Governor an-
nounced that casinos would be permitted to reopen, he in-
vited visitors to come to the State. 1 The average visitor to
Las Vegas visits more than six different casinos, potentially
gathering with far more than 50 persons in each one. ECF
Doc. 38–6, p. 44. Visitors to Las Vegas who gamble do so
for more than two hours per day on average, id., at 43, 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.
   Houses of worship can—and have—adopted rules that
provide far more protection. Family groups can be given
places in the pews that are more than six feet away from
others. Worshippers can be required to wear masks
throughout the service or for all but a very brief time. Wor-
shippers do not customarily travel from distant spots to at-
tend a particular church; nor do they generally hop from
church to church to sample different services on any given
Sunday. Few worship services last two hours. (Calvary
Chapel now limits its services to 45 minutes.) And worship-
pers do not generally mill around the church while a service
is in progress.
   The idea that allowing Calvary Chapel to admit 90 wor-
shippers presents a greater public health risk than allowing

——————
  1 See Jones, Nevada Governor Green-Lights June 4 Reopening of Casi-

nos; Las Vegas Gets Ready, L. A. Times (May 26, 2020), www.latimes.
com/travel/story/2020-05-26/nevada-governor-oks-reopening-vegas-prepares.
6       CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                      ALITO, J., dissenting

casinos to operate at 50% capacity is hard to swallow, and
the State’s efforts to justify the discrimination are feeble. It
notes that patrons at gaming tables are supposed to wear
masks and that the service of food at casinos is now limited,
but congregants in houses of worship are also required to
wear masks, and they do not consume meals during ser-
vices.
   The State notes that facilities other than houses of wor-
ship, such as museums, art galleries, zoos, aquariums,
trade schools, and technical schools, are also treated less
favorably than casinos, but obviously that does not justify
preferential treatment for casinos.
   Finally, the State argues that preferential treatment for
casinos is justified because the State is in a better position
to enforce compliance by casinos, which are under close su-
pervision by state officials and subject to penalties if they
violate state rules. By contrast, the State notes, rules for
houses of worship must be enforced by local authorities.
   This argument might make some sense if enforcing the
50% capacity rule were materially harder than enforcing a
flat 50-person rule. But there is no reason to think that is
so, let alone that it would be compelling enough to justify
differential treatment of religion. Local officials responsi-
ble for enforcing maximum occupancy limits during normal
times presumably know or can easily ascertain the limit for
particular churches, and the State does not claim that these
officials have any trouble enforcing those limits. In many
jurisdictions, buildings that host gatherings are required to
post their maximum occupancy figure in a prominent loca-
tion. Enforcing a 50% limit would not require local officials
to do anything more than divide that figure in half, and
there is no reason to think that enforcing that limit would
be any harder than enforcing a 50-person maximum.
   Moreover, even if the State’s special regulatory power
over casinos could justify different rules for those facilities,
the State would still have no explanation why facilities like
                  Cite as: 591 U. S. ____ (2020)             7

                      ALITO, J., dissenting

bowling alleys, arcades, and fitness centers are also given
the benefit of the 50% rule. And while the State suggests
that it strictly enforces the rules applicable to casinos, pho-
tos and videos taken in casinos after they were allowed to
reopen show widespread and blatant safety violations. Pa-
trons without masks are seen at close quarters, and the
State has not brought to our attention any evidence that it
has cracked down on non-complying casinos. The sharp
spike in COVID–19 cases since the casinos reopened belies
the State’s strict enforcement claims.
  While the directive’s treatment of casinos stands out,
other facilities are also given more favorable treatment
than houses of worship. Take the example of bowling al-
leys. Some Las Vegas bowling alleys where tournaments
are held can seat hundreds of spectators, and under the di-
rective, these facilities may admit up to 50% of capacity.
Not only that, the State tolerates seating arrangements at
these facilities that pose far more danger than the plan Cal-
vary Chapel proposes. An official state guidance document
states that groups of up to 50 people may sit together in the
grandstands of a bowling alley provided that they maintain
social distancing from other groups. ECF Doc. 38–5, p. 9.
Thus, while Calvary Chapel cannot admit more than 50
congregants even if families sit six feet apart, spectators at
a bowling tournament can sit together in groups of 50 pro-
vided that each group maintains social distancing from
other groups.
  In sum, the directive blatantly discriminates against
houses of worship and thus warrants strict scrutiny under
the Free Exercise Clause.
                              B
   The directive fares no better under the Free Speech
Clause. Laws that restrict speech based on the viewpoint
it expresses are presumptively unconstitutional, see, e.g.,
Iancu v. Brunetti, 588 U. S. ___, ___–___ (2019) (slip op., at
8        CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                         ALITO, J., dissenting

4–5), and under our cases religion counts as a viewpoint,
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S.
819, 831 (1995). Here, the Directive plainly discriminates
on the basis of viewpoint. Compare the directive’s treat-
ment of casino entertainment and church services. Both in-
volve expression, but the directive favors the secular ex-
pression in casino shows over the religious expression in
houses of worship.
  Calvary Chapel has also brought to our attention evi-
dence that the Governor has favored certain speakers over
others. When large numbers of protesters openly violated
provisions of the Directive, such as the rule against groups
of more than 50 people, the Governor not only declined to
enforce the directive but publicly supported and partici-
pated in a protest. Cf. Masterpiece Cakeshop, 584 U. S., at
___–___ (slip op., at 14–16). He even shared a video of pro-
testers standing shoulder to shoulder. The State’s response
to news that churches might violate the directive was quite
different. The attorney general of Nevada is reported to
have said, “ ‘You can’t spit . . . in the face of law and not ex-
pect law to respond.’ ” 2
  Public protests, of course, are themselves protected by the
First Amendment, and any efforts to restrict them would be
subject to judicial review. But respecting some First
Amendment rights is not a shield for violating others. The
State defends the Governor on the ground that the protests
expressed a viewpoint on important issues, and that is un-
doubtedly true, but favoring one viewpoint over others is
anathema to the First Amendment.


——————
  2 Application 8, and n. 6 (quoting Lochhead, Sisolak, Elected Nevada

Officials Discuss Systemic Racism, Reform, Las Vegas Review-Journal
(June 5, 2020), www.reviewjournal.com/news/politics-and-government/
nevada/sisolak-elected-nevada-officials-discuss-systemic-racism-reform-
2045833/).
                  Cite as: 591 U. S. ____ (2020)             9

                      ALITO, J., dissenting

                             C
  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 reli-
gious 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 in-
terest 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.
                              D
   The State’s primary defense of the directive’s treatment
of houses of worship is based on two decisions of this Court.
Quoting certain language in Jacobson v. Massachusetts,
197 U. S. 11 (1905), Nevada argues that “when a state ex-
ercises emergency police powers to enact an emergency
public health measure, courts will uphold it unless (1) there
is no real or substantial relation to public health, or (2) the
measures are ‘beyond all question’ a ‘plain[,] palpable [in-
vasion] of rights secured by the fundamental law.’ ” Re-
sponse to Application 11 (quoting Jacobson, 197 U. S., at
31).
   Even under this test, the directive’s discriminatory treat-
ment would likely fail for the reasons already explained.
And in any event, it is a mistake to take language in Jacob-
son as the last word on what the Constitution allows public
officials to do during the COVID–19 pandemic. Language
10       CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                          ALITO, J., dissenting

in Jacobson must be read in context, and it is important to
keep in mind that Jacobson primarily involved a substan-
tive due process challenge to a local ordinance requiring
residents to be vaccinated for small pox. 3 It is a considera-
ble stretch to read the decision as establishing the test to be
applied when statewide measures of indefinite duration are
challenged under the First Amendment or other provisions
not at issue in that case.
   The State also points to the Court’s recent refusal to issue
a temporary injunction against enforcement of a California
law that limited the number of persons allowed to attend
church services. See South Bay United Pentecostal Church
v. Newsom, 590 U. S. ___ (2020). I dissented from that de-
cision, see ibid.; see also id., at ___ (KAVANAUGH, J., dis-
senting), but even if it is accepted, that case is different
from the one now before us. In South Bay, a church relied
on the fact that the California law treated churches less fa-
vorably than certain other facilities, such as factories, of-
fices, supermarkets, restaurants, and retail stores. But the
law was defended on the ground that in these facilities, un-
like in houses of worship, “people neither congregate in
large groups nor remain in close proximity for extended pe-
riods.” Id., at ___ (ROBERTS, C. J., concurring) (slip op., at
2). That cannot be said about the facilities favored in Ne-
vada. In casinos and other facilities granted preferential
treatment under the directive, people congregate in large
groups and remain in close proximity for extended periods.

——————
  3 The Court brushed aside Jacobson’s claims that the challenged law

violated the Preamble and the spirit of the Constitution. Jacobson, 197
U. S., at 22. His claim under the Privileges or Immunities Clause of the
Fourteenth Amendment was doomed by the Slaughter-House Cases, 16
Wall. 36, 76–80 (1873), and was not addressed by the Court. Finally, the
Court quickly rejected his equal protection claim, Jacobson, 197 U. S., at
30, which was based on the law’s exemption for children and persons un-
der guardianship, see Commonwealth v. Jacobson, decided with Com-
monwealth v. Pear, 183 Mass. 242, 248, 66 N. E. 719, 722 (1903).
                  Cite as: 591 U. S. ____ (2020)            11

                      ALITO, J., dissenting

                             E
  An injunction pending appeal is warranted in this case.
Calvary Chapel’s First Amendment claims are very likely
to succeed. Indeed, it can be said that its “legal rights . . .
are indisputably clear,” Turner Broadcasting System, Inc.
v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in
chambers) (internal quotation marks omitted), and the eq-
uities also favor Calvary Chapel. Preventing congregants
from worshipping will cause irreparable harm, and the
State has made no effort to show that Calvary Chapel’s
plans would create a serious public health risk.
                        *    *    *
  I would issue an injunction barring the State, pending
appeal, from interfering with worship services conducted at
Calvary Chapel in accordance with its stated plan and the
general facemask requirement. I therefore respectfully dis-
sent.
                 Cite as: 591 U. S. ____ (2020)           1

                    GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 19A1070
                         _________________


   CALVARY CHAPEL DAYTON VALLEY v. STEVE
     SISOLAK, GOVERNOR OF NEVADA, ET AL.
         ON APPLICATION FOR INJUNCTIVE RELIEF
                        [July 24, 2020]

  JUSTICE GORSUCH, dissenting from denial of application
for injunctive relief.
  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 num-
ber gathered around every roulette wheel there. Large
numbers and close quarters are fine in such places. But
churches, synagogues, and mosques are banned from ad-
mitting 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 pro-
hibits 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.
                  Cite as: 591 U. S. ____ (2020)             1

                   KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 19A1070
                          _________________


    CALVARY CHAPEL DAYTON VALLEY v. STEVE
      SISOLAK, GOVERNOR OF NEVADA, ET AL.
          ON APPLICATION FOR INJUNCTIVE RELIEF
                         [July 24, 2020]

   JUSTICE KAVANAUGH, dissenting from denial of applica-
tion for injunctive relief.
   I join JUSTICE ALITO’s dissent in full and respectfully add
these further comments.
   Under its current reopening plan, Nevada allows restau-
rants, bars, casinos, and gyms to grant entrance to up to
50% of their total occupancy limit—no matter how many
people that may be. For example, a casino with a 500-per-
son occupancy limit may let in up to 250 people. By con-
trast, places of worship may only take in a maximum of 50
people, without exception, regardless of the occupancy cap.
So unlike a casino next door, a church with a 500-person
occupancy limit may let in only 50 people, not 250 people.
Nevada has offered no persuasive justification for that overt
discrimination against places of worship. The risk of
COVID–19 transmission is at least as high at restaurants,
bars, casinos, and gyms as it is at religious services. Indeed,
people congregating in restaurants, bars, casinos, and gyms
often linger at least as long as they do at religious services.
And given the safety measures that Calvary Chapel and
other places of worship are following—including social dis-
tancing, mask wearing, and certain additional voluntary
measures—it is evident that people interact with others at
restaurants, bars, casinos, and gyms at least as closely as
they do at religious services.
   In my view, Nevada’s discrimination against religious
2       CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                    KAVANAUGH, J., dissenting

services violates the Constitution. To be clear, a State’s
closing or reopening plan may subject religious organiza-
tions 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 justifica-
tion, and its current reopening plan therefore violates the
First Amendment.
   In Part I, I will explain how this case fits into the Court’s
broader religion jurisprudence. In Part II, I will explain
why Nevada’s treatment of religious organizations is un-
constitutional under the Court’s precedents.
                              I
  Religion cases are among the most sensitive and chal-
lenging in American law. Difficulties can arise at the outset
because the litigants in religion cases often disagree about
how to characterize a law. They may disagree about
whether a law favors religion or discriminates against reli-
gion. They may disagree about whether a law treats reli-
gion equally or treats religion differently. They may disa-
gree about what it means for a law to be neutral toward
religion.
  The definitional battles over what constitutes favoritism,
discrimination, equality, or neutrality can influence, if not
decide, the outcomes of religion cases. But the parties to
religion cases and the judges deciding those cases often do
not share a common vocabulary or common background
principles. And that disconnect can muddy the analysis,
build resentment, and lead to litigants and judges talking
past one another.
  In my view, some of the confusion and disagreement can
                  Cite as: 591 U. S. ____ (2020)             3

                   KAVANAUGH, J., dissenting

be averted by first identifying and distinguishing four cate-
gories of laws: (1) laws that expressly discriminate against
religious organizations; (2) laws that expressly favor reli-
gious organizations; (3) laws that do not classify on the ba-
sis of religion but apply to secular and religious organiza-
tions alike; and (4) laws that expressly treat religious
organizations equally to some secular organizations but
better or worse than other secular organizations. As I will
explain, this case involving Nevada’s reopening plan falls
into the fourth category.
   First are laws that expressly discriminate against reli-
gious organizations because of religion. The recent Espi-
noza case fell into that category. Espinoza v. Montana
Dept. of Revenue, ante, p. ___. The State of Montana pro-
vided tax credits to those who contributed to private school
scholarship organizations. But there was a significant
catch: Families eligible for scholarship funds could use
those funds only at secular private schools, not religious pri-
vate schools. Cases like that are straightforward examples
of religious discrimination. And as a general rule, laws that
discriminate against religion are, in the Court’s words, “odi-
ous to our Constitution.” Espinoza, ante, at 22 (internal
quotation marks omitted); see Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 U. S. ___ (2017); Good News
Club v. Milford Central School, 533 U. S. 98 (2001); Rosen-
berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819
(1995); Larson v. Valente, 456 U. S. 228 (1982); McDaniel v.
Paty, 435 U. S. 618, 629 (1978) (Brennan, J., concurring in
judgment); see also Murphy v. Collier, 587 U. S. ___ (2019)
(KAVANAUGH, J., concurring in grant of application for
stay); cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520 (1993).
   Second are laws that expressly favor religious organiza-
tions over secular organizations. Examples include cases
where a legislature affords religious organizations certain
4       CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                    KAVANAUGH, J., dissenting

accommodations, exemptions, or benefits that are not avail-
able to secular organizations. The legislature might, for ex-
ample, grant religious organizations a property tax exemp-
tion that is not available to secular organizations. Cf. Walz
v. Tax Comm’n of City of New York, 397 U. S. 664 (1970).
Or the legislature might authorize accommodations for cer-
tain religious individuals (but not secular individuals) that
relieve them from the burdens of otherwise-applicable laws,
such as the draft. See Gillette v. United States, 401 U. S.
437 (1971). Those kinds of accommodations or exemptions
can sometimes trigger Establishment Clause challenges be-
cause of the apparent favoritism of religion. See generally
American Legion v. American Humanist Assn., 588 U. S.
___, ___ (2019) (KAVANAUGH, J., concurring); see also Cutter
v. Wilkinson, 544 U. S. 709 (2005); Board of Ed. of Kiryas
Joel Village School Dist. v. Grumet, 512 U. S. 687, 722
(1994) (Kennedy, J., concurring in judgment); Corporation
of Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327 (1987).
   Third are laws that apply to religious and secular organ-
izations alike without making any classification on the ba-
sis of religion. For example, a city fire code may require
sprinklers in all buildings that can hold more than 100 peo-
ple. A law like that would cover buildings owned by reli-
gious organizations and buildings owned by secular organ-
izations. Those kinds of laws on their face present no
impermissible discrimination or favoritism.
   To be sure, those kinds of laws, although not differentiat-
ing between religious and secular organizations, can still
sometimes impose substantial burdens on religious exer-
cise. If so, a religious organization may seek an exemption
in court (if not also in the legislature) to the extent available
under federal or state law and permissible under the Estab-
lishment Clause. See, e.g., Our Lady of Guadalupe School
v. Morrissey-Berru, ante, p. ___; Gonzales v. O Centro Es-
pírita Beneficente União do Vegetal, 546 U. S. 418 (2006).
                 Cite as: 591 U. S. ____ (2020)            5

                   KAVANAUGH, J., dissenting

Or a religious organization may contend that the facially
neutral law was actually motivated by animus against reli-
gion and is unconstitutional on that ground. See Lukumi,
508 U. S. 520.
   Fourth are laws—like Nevada’s in this case—that supply
no criteria for government benefits or action, but rather
divvy up organizations into a favored or exempt category
and a disfavored or non-exempt category. Those laws pro-
vide benefits only to organizations in the favored or exempt
category and not to organizations in the disfavored or non-
exempt category.
   For example, consider a zoning law that places some sec-
ular organizations (apartment buildings, small retail busi-
nesses, restaurants, banks, etc.) in a favored or exempt zon-
ing category, and places some secular organizations (office
buildings, large retail businesses, movie theaters, music
venues, etc.) in a disfavored or non-exempt zoning category.
Suppose that religious properties arguably could be consid-
ered similar to some of the secular properties in both cate-
gories. What, then, are the constitutional limits and re-
quirements with respect to how the legislature may
categorize religious organizations?
   In those circumstances, the Court’s precedents make
clear that the legislature may place religious organizations
in the favored or exempt category rather than in the disfa-
vored or non-exempt category without causing an Estab-
lishment Clause problem. See, e.g., Walz, 397 U. S., at 696
(opinion of Harlan, J.) (“[T]he critical question is whether
the circumference of legislation encircles a class so broad
that it can be fairly concluded that religious institutions
could be thought to fall within the natural perimeter”);
Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 14 (1989) (plu-
rality opinion) (expressing approval of subsidies “conferred
upon a wide array of nonsectarian groups as well as reli-
gious organizations in pursuit of some legitimate secular
end”); Concerned Citizens of Carderock v. Hubbard, 84
6      CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                   KAVANAUGH, J., dissenting

F. Supp. 2d 668 (Md. 2000) (State may place religious or-
ganizations in favored zoning category along with some sec-
ular organizations).
   The converse free-exercise or equal-treatment question is
whether the legislature is required to place religious organ-
izations in the favored or exempt category rather than in
the disfavored or non-exempt category. The Court’s free-
exercise and equal-treatment precedents also supply an an-
swer to that question: Unless the State provides a sufficient
justification otherwise, it must place religious organiza-
tions in the favored or exempt category. See Laycock, The
Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50 (ex-
plaining how this Court’s precedents grant “something
analogous to most-favored nation status” to religious organ-
izations).
   In Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), for example, the Court ex-
plained that “where the State has in place a system of indi-
vidual exemptions, it may not refuse to extend that system
to cases of religious hardship without compelling reason.”
Id., at 884 (internal quotation marks omitted; emphasis
added); see also Lukumi, 508 U. S., at 537–538. Likewise,
then-Judge Alito stated that the First Amendment required
a police department to exempt Sunni Muslims from its no-
beard policy because the police department made “exemp-
tions from its policy for secular reasons and has not offered
any substantial justification for refusing to provide similar
treatment for officers who are required to wear beards for
religious reasons.” Fraternal Order of Police Newark Lodge
No. 12 v. Newark, 170 F. 3d 359, 360 (CA3 1999) (emphasis
added).
   Put simply, under the Court’s religion precedents, when
a law on its face favors or exempts some secular organiza-
tions as opposed to religious organizations, a court enter-
taining a constitutional challenge by the religious organiza-
tions must determine whether the State has sufficiently
                  Cite as: 591 U. S. ____ (2020)            7

                   KAVANAUGH, J., dissenting

justified the basis for the distinction.
   To be clear, the Court’s precedents do not require that re-
ligious organizations be treated more favorably than all sec-
ular organizations. Rather, the First Amendment requires
that religious organizations be treated equally to the fa-
vored or exempt secular organizations, unless the State can
sufficiently justify the differentiation.
   Stated otherwise, in these kinds of cases, the Court’s re-
ligion precedents require a basic two-step inquiry. First,
does the law create a favored or exempt class of organiza-
tions and, if so, do religious organizations fall outside of
that class? That threshold question does not require judges
to decide whether a church is more akin to a factory or more
like a museum, for example. Rather, the only question at
the start is whether a given law on its face favors certain
organizations and, if so, whether religious organizations
are part of that favored group. If the religious organiza-
tions are not, the second question is whether the govern-
ment has provided a sufficient justification for the differen-
tial treatment and disfavoring of religion. Cf. Smith, 494
U. S., at 884.
   In seeking to justify the differential treatment in those
kinds of cases, it is not enough for the government to point
out that other secular organizations or individuals are also
treated unfavorably. The point “is not whether one or a few
secular analogs are regulated. The question is whether a
single secular analog is not regulated.” Laycock & Collis,
Generally Applicable Law and the Free Exercise of Reli-
gion, 95 Neb. L. Rev. 1, 22 (2016). To that end, the govern-
ment must articulate a sufficient justification for treating
some secular organizations or individuals more favorably
than religious organizations or individuals. See Smith, 494
U. S., at 884. That point is subtle but absolutely critical.
And if that point is not fully understood, then cases of this
kind will be wrongly decided.
8      CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                   KAVANAUGH, J., dissenting

                               II
   I turn then to analyzing Nevada’s rules under the Court’s
precedents. As JUSTICE ALITO explains in his dissent, Ne-
vada has now had more than four months to respond to the
initial COVID–19 crisis and adjust its line-drawing as cir-
cumstances change. Yet Nevada is still discriminating
against religion. Nevada applies a strict 50-person attend-
ance cap to religious worship services, but applies a looser
50% occupancy cap to secular organizations like restau-
rants, bars, casinos, and gyms.
   Nevada has gestured at two possible justifications for
that discrimination: public health and the economy. But
neither argument is persuasive on this record.
   First is the State’s public health rationale. Nevada un-
doubtedly has a compelling interest in combating the
spread of COVID–19 and protecting the health of its citi-
zens. But it does not have a persuasive public health reason
for treating churches differently from restaurants, bars, ca-
sinos, and gyms. Calvary Chapel is happy to abide by the
same 50% occupancy cap or some stricter across-the-board
standard, as the State sees fit, so long as the same standard
applies to those secular businesses. And the Church has
committed to social distancing, mask requirements, and
certain voluntary safety measures.
   The State has not explained why a 50% occupancy cap is
good enough for secular businesses where people congre-
gate in large groups or remain in close proximity for ex-
tended periods—such as at restaurants, bars, casinos, and
gyms—but is not good enough for places of worship. Again,
it does not suffice to point out that some secular businesses,
such as movie theaters, are subject to the lesser of a 50-
person or 50% occupancy cap. The legal question is not
whether religious worship services are all alone in a disfa-
vored category, but why they are in the disfavored category
to begin with. See Smith, 494 U. S., at 884. And Nevada
has not advanced a sufficient public health rationale for
                 Cite as: 591 U. S. ____ (2020)            9

                   KAVANAUGH, J., dissenting

that decision. To reiterate, the State has substantial room
to draw lines, especially in an emergency or crisis. But Ne-
vada has not demonstrated that public health justifies tak-
ing a looser approach with restaurants, bars, casinos, and
gyms and a stricter approach with places of worship.
  Second is the State’s economic rationale. The State
wants to jump-start business activity and preserve the eco-
nomic well-being of its citizens. The State has loosened re-
strictions on restaurants, bars, casinos, and gyms in part
because many Nevada jobs and livelihoods, as well as other
connected Nevada businesses, depend on those restaurants,
bars, casinos, and gyms being open and busy. It is under-
standable for the State to balance public health concerns
against individual economic hardship. Almost every State
and municipality in America is struggling with that bal-
ance. After all, if preventing transmission of COVID–19
were the sole concern, a State would presumably order al-
most all of its businesses to stay closed indefinitely. But
the economic devastation and the economic, physical, intel-
lectual, and psychological harm to families and individuals
that would ensue (and has already ensued, to some extent)
requires States to make tradeoffs that can be unpleasant to
openly discuss.
  With respect to those tradeoffs, however, no precedent
suggests that a State may discriminate against religion
simply because a religious organization does not generate
the economic benefits that a restaurant, bar, casino, or gym
might provide. Nevada’s rules reflect an implicit judgment
that for-profit assemblies are important and religious gath-
erings are less so; that moneymaking is more important
than faith during the pandemic. But that rationale “deval-
ues religious reasons” for congregating “by judging them to
be of lesser import than nonreligious reasons,” in violation
of the Constitution. Lukumi, 508 U. S., at 537–538. The
Constitution does not tolerate discrimination against reli-
gion merely because religious services do not yield a profit.
10     CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                   KAVANAUGH, J., dissenting

   More broadly, the State insists that it is in the midst of
an emergency and that it should receive deference from the
courts and not be bogged down in litigation. If the courts
simply enforce the constitutional prohibition against reli-
gious discrimination, however, the floodgates will not open.
I agree that courts should be very deferential to the States’
line-drawing in opening businesses and allowing certain ac-
tivities during the pandemic. For example, courts should
be extremely deferential to the States when considering a
substantive due process claim by a secular business that it
is being treated worse than another business. Cf. Jacobson
v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the
Constitution, state and local governments, not the federal
courts, have the primary responsibility for addressing
COVID–19 matters such as quarantine requirements, test-
ing plans, mask mandates, phased reopenings, school clo-
sures, sports rules, adjustment of voting and election proce-
dures, state court and correctional institution practices,
and the like.
   But COVID–19 is not a blank check for a State to discrim-
inate against religious people, religious organizations, and
religious services. There are certain constitutional red lines
that a State may not cross even in a crisis. Those red lines
include racial discrimination, religious discrimination, and
content-based suppression of speech. This Court’s history
is littered with unfortunate examples of overly broad judi-
cial deference to the government when the government has
invoked emergency powers and asserted crisis circum-
stances to override equal-treatment and free-speech princi-
ples. The court of history has rejected those jurisprudential
mistakes and cautions us against an unduly deferential ju-
dicial approach, especially when questions of racial discrim-
ination, religious discrimination, or free speech are at
stake.
   Finally, the State relies on the Court’s recent temporary
injunction decision in South Bay United Pentecostal Church
                  Cite as: 591 U. S. ____ (2020)            11

                   KAVANAUGH, J., dissenting

v. Newsom, 590 U. S. ___ (2020). There, the Court consid-
ered a California limitation on crowd size at religious ser-
vices. California treated religious organizations better
than some secular organizations, like movie theaters, but
worse than other secular organizations, such as restau-
rants, supermarkets, retail stores, pharmacies, hair salons,
offices, factories, and the like. In my view, the State of Cal-
ifornia’s explanation, at least on that record, did not per-
suasively distinguish religious services from several of the
favored secular organizations, particularly restaurants and
supermarkets. But the Court ultimately denied the
church’s request for an emergency injunction. In his con-
currence, THE CHIEF JUSTICE appropriately emphasized
both the high standard for obtaining injunctive relief in this
Court and the ongoing and rapidly changing public health
emergency. THE CHIEF JUSTICE also noted that the favored
secular activities did not involve people who “congregate in
large groups” or “remain in close proximity for extended pe-
riods.” Id., at ___ (opinion concurring in denial of applica-
tion for injunctive relief) (slip op., at 2).
   I continue to think that the restaurants and supermar-
kets at issue in South Bay (and especially the restaurants)
pose similar health risks to socially distanced religious ser-
vices in terms of proximity to others and duration of visit.
I suspect that many who have frequented all three kinds of
establishments in recent weeks and months would agree.
So I continue to respectfully disagree with South Bay.
   But accepting South Bay as a precedent, this case is much
different because it involves bars, casinos, and gyms. Ne-
vada’s COVID–19-based health distinction between (i) bars,
casinos, and gyms on the one hand, and (ii) religious ser-
vices on the other hand, defies common sense. As I see it,
the State cannot plausibly maintain that those large secu-
lar businesses are categorically safer than religious ser-
vices, or that only religious services—and not bars, casinos,
12     CALVARY CHAPEL DAYTON VALLEY v. SISOLAK

                   KAVANAUGH, J., dissenting

and gyms—entail people congregating in large groups or re-
maining in close proximity for extended periods of time. In
any event, the State has not yet supplied a sufficient justi-
fication for its counterintuitive distinction.
                *             *             *
   The Constitution “protects religious observers against
unequal treatment.” Trinity Lutheran, 582 U. S., at ___
(slip op., at 6) (internal quotation marks and alterations
omitted). Nevada’s 50-person attendance cap on religious
worship services puts praying at churches, synagogues,
temples, and mosques on worse footing than eating at res-
taurants, drinking at bars, gambling at casinos, or biking
at gyms. In other words, Nevada is discriminating against
religion. And because the State has not offered a sufficient
justification for doing so, that discrimination violates the
First Amendment. I would grant the Church’s application
for a temporary injunction. I respectfully dissent.
