Mike Lee criticizes Supreme Court for allowing big crowds in casinos but not churches during pandemic

(Leah Hogsten | Tribune file photo) Sen. Mike Lee, who is a former federal prosecutor and Supreme Court clerk, fields questions about the possibility of Lee filling the Supreme Court vacancy from members of the media at a Sutherland Institute presentation, June 29, 2018.

A week after calling on President Donald Trump to require states to allow churches to reopen or lose any forthcoming COVID-19 aid, Sen. Mike Lee criticized the U.S. Supreme Court on Tuesday for allowing big crowds in casinos but not churches during the pandemic.

“It’s a really significant missed opportunity,” the Utah Republican said about justices declining two weeks ago to issue an injunction to temporarily halt such Nevada COVID-19 restrictions.

“As Justice [Neil] Gorsuch put it, there really is no world in which that can be constitutional. That’s why I find it somewhat perplexing,” Lee said in an online speech to the Utah-based conservative Sutherland Institute.

Gorsuch wrote in his dissent, “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Lee, who once was on a short list of possible Supreme Court nominees issued by Trump, noted that four Republican justices voted to issue an injunction against the Nevada law while challenges against it proceed — but Chief Justice John Roberts declined to give the fifth vote needed. “I find it disconcerting,” he said.

Lee read from a dissent by Gorsuch saying Nevada law could allow movie theaters and casinos to have up to 600 guests, “but churches, synagogues and mosques are banned from admitting more than 50 worshippers, no matter how large the building, no matter how distant the individual” — despite special First Amendment protection for religious freedom.

Lee said the Supreme Court’s action amounted to “a near miss” in protecting religious rights. He predicted that when the case is argued on its merits — and not just seeking an injunction — the Nevada law will be overturned. “It is therefore puzzling that they didn’t grant the injunction that was sought.”

Lee made similar arguments recently when he led a letter signed by nine other GOP senators to Trump complaining that states are imposing stricter rules on churches than many businesses and that that prevented them from opening during the pandemic or doing such things as singing. He asked Trump to help allow them to open or have states lose pandemic aid.

“Such executive action would send the nation and government leaders a clear and unequivocal message that religious liberty matters, and that no state or locality can unilaterally strip away protected constitutional rights,” Lee wrote to Trump.

Religious liberty is a priority for Lee. He for years has also pushed the controversial “First Amendment Defense Act,” which he says aims to protect religious freedom but critics argue could lead to discrimination against the LGBTQ community.

That bill, originally introduced in 2015 and reintroduced later, seeks to protect individuals and institutions from punitive government action for believing that marriage is between one man and one woman and for opposing sex outside of marriage.