A recent Supreme Court decision upholding Nevada church regulations underscores the danger of turning everything into a federal case and depending on federal judges to protect your rights. Thanks to the incorporation doctrine, every state government now has more latitude to “constitutionally” regulate churches.

A Nevada church sued in federal court to overturn a state policy limiting in-person church attendance to 50 people or less, arguing that it violated the First Amendment. Coronavirus rules in Nevada allow restaurants and casinos to operate at 50 percent capacity as long as social distancing guidelines are observed. Calvary Chapel Dayton Valley argued that the hard cap on religious gatherings treated churches differently than other places.

The High Court disagreed, refusing to issue an injunction by a 5-4 vote.

If you believe this was a bad decision, it’s even worse than you imagine. Because this case was federalized and brought before the U.S. Supreme Court, it creates a precedent that will apply across the country — state governments can regulate church attendance in a pandemic.

Under the original Constitution, this case would have never gone before a federal court. It would have been decided in the state courts under the Nevada state constitution. That constitution’s declaration of rights also protects freedom of religion. Section 4 reads, “The free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State.”

Nevada state courts may well have rendered the same opinion as the SCOTUS, but it would not have applied across the entire United States. The church’s insistence on making a federal case out of the state’s actions just created a precedent that applies to more than 320 million people in all 50 states.

This is the danger of centralizing power. You are always taking a big gamble. If you win, great. But when you lose, everybody loses. And in the casino system that is big government, you almost always lose. Federal judges almost always side with expanding federal power, not individual liberty.

The incorporation doctrine made it possible for a Nevada state regulation to become a federal case.

The application of the Bill of Rights to state and local governments was not a feature of the original constitution. This is especially clear in the language of the First Amendment – “Congress shall make no law…” Application of the Bill of Rights to the states came about through a series of federal court cases based on the 14th Amendment that created a legal framework known as the incorporation doctrine.

In a nutshell, the Supreme Court invented the incorporation doctrine through the 14th Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment.

A lot of people believe the incorporation doctrine is a great tool for liberty. They argue that it provides a tool to keep states from trampling on our rights. And sometimes it does. But more often than not, it allows federal courts to impose anti-liberty interpretations of the Constitution across the entire U.S.

Ultimately, it centralizes power and that is an enemy of liberty.

Mike Maharrey

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