By Daniela Ellerbeck, FOR SA Legal Advisor

One of the (very important) functions of courts of law, is to keep the executive branch of Government in check. That is how the balance of power works in a democracy – the legislature makes the law, the executive branches implement or give effect to that law, and the courts (amongst other things) make sure the executive does not exceed its powers in doing so. It’s a system of checks and balances, with each branch being a limitation on the abuse of power by another.  However, in what has been a very tumultuous couple of months for religious freedom law in America (see our articles here and here), it seems that even the apex court in America is not willing to second-guess the executive’s exercise of power during the COVID-19 pandemic. In a shocking single sentence judgment delivered on 24 July 2020, the Supreme Court of the United States of America (SCOTUS) denied a church’s plea that the COVID laws of its particular State, treat it in an equal manner to how it treats commercial enterprises.

A plea for equal treatment

Calvary Chapel Dayton Valley, a church in Nevada, applied to SCOTUS for an injunction (in South African law known as “an interdict”) to stop Nevada’s Governor from enforcing a directive that would cap religious gatherings at 50 people maximum, while allowing casinos, restaurants and other commercial enterprises to operate at 50% of capacity.

It is worth pointing out that similar restrictions currently apply in South Africa, causing many South African religious leaders and organisations to feel that Government is prioritising other sectors of the economy and unfairly discriminating against the religious community whose rights are constitutionally entrenched.

SCOTUS’ majority of judges denied the church’s request in a one-line judgment, offering neither explanation nor reason for its decision: “The application for injunctive relief presented to JUSTICE KAGAN and by her referred to the Court is denied.”  They clearly assumed that this single sentence provides a sufficient explanation for the Court’s endorsement of both the State’s unequal treatment of churches and the State’s limitation of people’s fundamental rights and freedoms.

A hotly disputed judgment

The decision was carried by the narrowest of margins, with 5 judges endorsing the one-line judgment and 4 judges (Alito, Thomas, Kavenaugh and Gorsuch) dissenting from it.  Unlike the one-line majority judgment (by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan), 3 of the judges wrote detailed dissenting judgments.

None of the dissenting judgments held back, or minced, words.  Justice Alito was uncompromising that SCOTUS had “a duty to defend the Constitution” even during a public health emergency.  His judgment bluntly says that “[t]he Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine…”

According to Alito, the Governor of Nevada is “[c]laiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic” and “has issued a directive that severely 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 favoured 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.

Kavanaugh expands on this and hits the nail on the head in his dissenting judgment when he said that “COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services. There are certain constitutional red lines that a State may not cross even in a crisis.”

According to Kavanaugh, it is clear that “Nevada is discriminating against religion.”  Perhaps the crux of the problem with SCOTUS’ majority judgment, was best illustrated by Justice Gorsuch when he aptly said that there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Conclusion

The world is currently in the throes of the first pandemic we have experienced since before our grandparents’ lifetimes.  Our interconnected, modern world has had to adapt sharply, with numerous governments enforcing strict Lockdown laws that limit our constitutional rights in a previously inconceivable way.

SCOTUS’ decision to allow Nevada’s Governor to discriminate against religious gatherings, does not have any binding effect on South Africa’s courts or our Government.  It does, however, highlight that when it comes to saying “no” to how Government chooses to exercise its powers in trying to “flatten the curve”, courts are reticent to intervene. And in our global village, what happens across the Atlantic frequently spills over to us in South Africa. For that reason, SCOTUS’ one-liner decision is especially alarming, considering that the exact same restrictions of 50 people maximum at a religious gathering are currently in place in South Africa, while (as in Nevada) casinos can operate at 50% of their floor space. 

Note: FOR SA is currently representing the interests of 18,5 million people from across the religious community of South Africa in our engagements with Government to ensure that the Regulations and Directions issued under the state of national disaster are equitable, reasonable and fair.

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.



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