1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,240 --> 00:00:09,479 Speaker 1: Tens of thousands usually flocked to the Vatican for Palm 3 00:00:09,600 --> 00:00:18,640 Speaker 1: Sunday services, but last Sunday, the bells rang in an 4 00:00:18,680 --> 00:00:22,600 Speaker 1: empty St. Peter's Square before the Pope said Mass inside 5 00:00:22,640 --> 00:00:26,400 Speaker 1: the Basilica with only a few prelates, nuns, and lay people. 6 00:00:26,600 --> 00:00:36,080 Speaker 1: In this country, churches are trying online services. I want 7 00:00:36,080 --> 00:00:39,400 Speaker 1: you to think about your future, drive through communions, pray 8 00:00:39,479 --> 00:00:43,040 Speaker 1: that you will discover Her with and even outdoor services 9 00:00:43,120 --> 00:00:47,400 Speaker 1: with pastors preaching from flatbed trucks and church members parked 10 00:00:47,400 --> 00:00:50,519 Speaker 1: in cars with their radio's tuned to a low power 11 00:00:50,800 --> 00:00:55,040 Speaker 1: FM transmitter to hear this and a God's people and 12 00:00:55,120 --> 00:01:00,320 Speaker 1: said amen. But some pastors are defying governor's day at 13 00:01:00,320 --> 00:01:04,720 Speaker 1: home orders, saying it violates religious freedoms and their constitutional rights. 14 00:01:05,160 --> 00:01:09,160 Speaker 1: Louisiana pastor Tony Spell was arrested last month for holding 15 00:01:09,200 --> 00:01:12,119 Speaker 1: services in violation of the governor's stay at home order, 16 00:01:12,280 --> 00:01:15,080 Speaker 1: but he still held services for hundreds at his church 17 00:01:15,160 --> 00:01:18,440 Speaker 1: on Palm Sunday. People's hope is in the House of God. 18 00:01:19,160 --> 00:01:21,800 Speaker 1: If they do contract the virus, if they have fears 19 00:01:21,800 --> 00:01:25,199 Speaker 1: of the virus. The church is more essential now than 20 00:01:25,280 --> 00:01:29,119 Speaker 1: ever to pray with people. Kentucky Governor Andy Basher had 21 00:01:29,200 --> 00:01:32,839 Speaker 1: dire words for another pastor, Jack Roberts, after he opened 22 00:01:32,880 --> 00:01:36,160 Speaker 1: his church doors for services spread the virus, and at 23 00:01:36,240 --> 00:01:38,920 Speaker 1: Christmas he's going to have fewer people in his congregation. 24 00:01:39,120 --> 00:01:41,760 Speaker 1: Journing me is Richard Garnett, professor at the University of 25 00:01:41,800 --> 00:01:45,640 Speaker 1: Notre Dame Law School. So, rick, can governors order churches 26 00:01:45,800 --> 00:01:48,760 Speaker 1: not to hold services? Yes, they do have the power 27 00:01:48,800 --> 00:01:51,440 Speaker 1: to issue day at home type regulations, and they can 28 00:01:51,680 --> 00:01:55,960 Speaker 1: limit large in person gatherings even if those limits are 29 00:01:55,960 --> 00:01:59,120 Speaker 1: applied to religious gathers. Now, what they couldn't do is 30 00:01:59,160 --> 00:02:02,800 Speaker 1: it would be infamous able to target churches for special regulations. 31 00:02:03,040 --> 00:02:05,040 Speaker 1: If you are a governor, you couldn't say, you know, 32 00:02:05,120 --> 00:02:08,960 Speaker 1: it's fine to keep open the baseball games and the 33 00:02:09,000 --> 00:02:11,600 Speaker 1: bowling leagues, but the churches they've got all shut down, 34 00:02:11,639 --> 00:02:14,119 Speaker 1: So you can't target them. You can't discriminate against them. 35 00:02:14,200 --> 00:02:18,280 Speaker 1: But if you have a general neutral rule against public gatherings, 36 00:02:18,639 --> 00:02:21,760 Speaker 1: you're allowed to apply that to churches as well. And 37 00:02:21,840 --> 00:02:25,240 Speaker 1: that's true even in states that have religious freedom laws 38 00:02:25,240 --> 00:02:28,120 Speaker 1: like the Religious Freed Administration Act. Because any court I 39 00:02:28,160 --> 00:02:31,640 Speaker 1: can imagine is going to say that the burden on 40 00:02:31,680 --> 00:02:34,280 Speaker 1: this religious exercise, which is it is a serious burden, 41 00:02:34,360 --> 00:02:37,680 Speaker 1: especially this time of year, that that burden satisfies the 42 00:02:37,880 --> 00:02:40,280 Speaker 1: so called strict scrutiny requirement that a lot of these 43 00:02:40,360 --> 00:02:44,280 Speaker 1: laws have. More than forty state governors have issued stay 44 00:02:44,280 --> 00:02:48,000 Speaker 1: at home orders, but about fourteen of them have exempted 45 00:02:48,480 --> 00:02:51,960 Speaker 1: religious gatherings. The Florida governor said he didn't think he 46 00:02:52,040 --> 00:02:55,959 Speaker 1: could tell a church not to hold services. Yeah, I 47 00:02:55,960 --> 00:02:58,799 Speaker 1: think he's probably wrong about that. Governors do have the 48 00:02:58,840 --> 00:03:03,000 Speaker 1: power again to limit large gatherings of people in order 49 00:03:03,080 --> 00:03:06,320 Speaker 1: to serve this public health emergency against so long as 50 00:03:06,320 --> 00:03:08,600 Speaker 1: they're not targeting churches. But at the same time, it's 51 00:03:08,639 --> 00:03:11,480 Speaker 1: true that governors have the authority if they want to 52 00:03:11,600 --> 00:03:15,160 Speaker 1: provide limited exemptions in order to take account of how 53 00:03:15,200 --> 00:03:18,520 Speaker 1: serious and important religious services are too many people. I'm 54 00:03:18,560 --> 00:03:21,480 Speaker 1: not a public health expert, so I wouldn't purport to 55 00:03:21,720 --> 00:03:24,640 Speaker 1: say whether those exemptions are good policy or not. But 56 00:03:24,760 --> 00:03:27,360 Speaker 1: I don't believe they're legally required. And there's been a 57 00:03:27,360 --> 00:03:29,840 Speaker 1: lot of variation from state to state in terms of 58 00:03:29,840 --> 00:03:32,400 Speaker 1: how these orders have been crafted. Some governors have left 59 00:03:32,440 --> 00:03:35,480 Speaker 1: open parks, others have closed them, some have set the 60 00:03:35,480 --> 00:03:38,280 Speaker 1: thresholds on the gathering at different levels. That's to be 61 00:03:38,320 --> 00:03:40,480 Speaker 1: expected in the federal system. I think the key point 62 00:03:40,880 --> 00:03:44,440 Speaker 1: for churches is that governments are not allowed to discriminate 63 00:03:44,480 --> 00:03:49,200 Speaker 1: against religious services, but they are allowed to include religious 64 00:03:49,240 --> 00:03:52,720 Speaker 1: gatherings under the heading of these larger gatherings. That what 65 00:03:52,720 --> 00:03:55,440 Speaker 1: would be problematic is if a governor said, I'm going 66 00:03:55,480 --> 00:03:58,520 Speaker 1: to exempt all kinds of other gatherings and clubs from 67 00:03:58,560 --> 00:04:00,720 Speaker 1: the state at home order, but going to really stick 68 00:04:00,720 --> 00:04:02,680 Speaker 1: it to the churches. You can't have that kind of 69 00:04:02,720 --> 00:04:07,640 Speaker 1: singling out or discrimination against religious services. In the state 70 00:04:07,680 --> 00:04:13,080 Speaker 1: of Texas, three pastors are suing. They're challenging the constitutionality 71 00:04:13,120 --> 00:04:16,039 Speaker 1: of us stay at home order, and they cite the 72 00:04:16,080 --> 00:04:19,919 Speaker 1: fact that gun stores are open for business as essential 73 00:04:20,000 --> 00:04:25,240 Speaker 1: in Texas, so why shouldn't churches. Well, right, And basically 74 00:04:25,279 --> 00:04:27,800 Speaker 1: what these pastors are trying to do is to make 75 00:04:27,839 --> 00:04:30,520 Speaker 1: the argument that I was just describing that these stay 76 00:04:30,560 --> 00:04:34,000 Speaker 1: at home orders are not neutral, they're not generally applicable, 77 00:04:34,040 --> 00:04:38,479 Speaker 1: that they're kind of picking and choosing and targeting even churches. Now, 78 00:04:38,600 --> 00:04:41,160 Speaker 1: you know, what's what's essential is going to be somewhat 79 00:04:41,200 --> 00:04:43,040 Speaker 1: in the eye of the beholder. But it is true 80 00:04:43,200 --> 00:04:46,839 Speaker 1: that if a particular order is exempting all kinds of 81 00:04:46,880 --> 00:04:51,200 Speaker 1: gatherings and really only cracking down on religious ones, that 82 00:04:51,360 --> 00:04:55,279 Speaker 1: is going to raise some judicial eyebrows. In my own 83 00:04:55,279 --> 00:04:58,760 Speaker 1: state of Indiana, you know, we don't have an exemption 84 00:04:58,920 --> 00:05:01,400 Speaker 1: for religious gatherings, so they're they're shut down if there 85 00:05:01,400 --> 00:05:03,800 Speaker 1: are over ten people, I believe, but that's been applied 86 00:05:04,080 --> 00:05:07,120 Speaker 1: broadly in a neutral way. I suspect that's going to 87 00:05:07,200 --> 00:05:09,880 Speaker 1: be what happens in Texas as well. For what it's worth, 88 00:05:09,920 --> 00:05:13,200 Speaker 1: that these challenges will be unsuccessful because courts are not 89 00:05:13,279 --> 00:05:16,320 Speaker 1: going to want to second guests, especially in a time 90 00:05:16,320 --> 00:05:18,320 Speaker 1: of a public health emergency. They're not They're not going 91 00:05:18,360 --> 00:05:21,640 Speaker 1: to want to second guess the politically accountable decision makers 92 00:05:21,640 --> 00:05:24,280 Speaker 1: who have to make these judgment calls about what needs 93 00:05:24,279 --> 00:05:27,599 Speaker 1: to be open and what needs to be shut. In fact, 94 00:05:27,640 --> 00:05:32,760 Speaker 1: a judge in Florida recently refused to order the beaches 95 00:05:32,880 --> 00:05:36,960 Speaker 1: closed against the governor's order, saying that it really wasn't 96 00:05:37,279 --> 00:05:38,919 Speaker 1: up to him to make that kind of a decision 97 00:05:38,920 --> 00:05:42,120 Speaker 1: when there's a public health emergency. Yeah, I mean, the 98 00:05:42,120 --> 00:05:45,960 Speaker 1: way are kind of separation of powers ideas work. Whether 99 00:05:45,960 --> 00:05:48,279 Speaker 1: it's the state level or the federal level, is courts 100 00:05:48,320 --> 00:05:50,320 Speaker 1: are going to be pretty reluctant to engage in this 101 00:05:50,480 --> 00:05:53,040 Speaker 1: kind of judgment call policy making, and they should be 102 00:05:53,480 --> 00:05:56,160 Speaker 1: the role of a court, like in the religious freedom context, 103 00:05:56,200 --> 00:05:58,919 Speaker 1: would be to say, okay, if let's imagine it's the 104 00:05:58,920 --> 00:06:01,400 Speaker 1: state that has a of just freedom law, if these 105 00:06:01,400 --> 00:06:04,320 Speaker 1: stay at home orders are imposing a substantial burden on 106 00:06:04,400 --> 00:06:07,720 Speaker 1: religious exercise, and again especially during Holy Wee can pass over, 107 00:06:07,760 --> 00:06:10,520 Speaker 1: it seems like they are. Is that burden serving a 108 00:06:10,600 --> 00:06:13,600 Speaker 1: compelling state interests? That's the kind of legal buzzword we used. 109 00:06:13,839 --> 00:06:16,120 Speaker 1: And almost any court I can imagine is going to 110 00:06:16,680 --> 00:06:21,799 Speaker 1: defer to the decisions of the relevant administrators or political officials. 111 00:06:22,360 --> 00:06:24,600 Speaker 1: So it doesn't matter if it's a governor or it's 112 00:06:24,600 --> 00:06:27,560 Speaker 1: a local official, let's say a mayor. Well, it gets 113 00:06:27,600 --> 00:06:31,160 Speaker 1: kind of in the weeds because state law controls how 114 00:06:31,240 --> 00:06:35,200 Speaker 1: much power mayors have. But I think for our purposes 115 00:06:35,240 --> 00:06:38,640 Speaker 1: as a general matter, it doesn't really matter. The local 116 00:06:38,680 --> 00:06:42,760 Speaker 1: executive again I'm speaking generally, is going to have the authority, 117 00:06:42,800 --> 00:06:45,360 Speaker 1: at least as a preliminary matter, to make the kind 118 00:06:45,360 --> 00:06:48,560 Speaker 1: of cost benefit analysis that is behind these orders. How 119 00:06:48,680 --> 00:06:52,239 Speaker 1: far up the chain of command a local officials decision 120 00:06:52,320 --> 00:06:55,200 Speaker 1: can be appealed. That really varies from state to state 121 00:06:55,240 --> 00:06:58,239 Speaker 1: depending on how state government's structured. But certainly the governor, 122 00:06:58,400 --> 00:07:00,440 Speaker 1: and this is you know, an ancient idea of the 123 00:07:00,480 --> 00:07:03,240 Speaker 1: police power and so on, State legislators and governors are 124 00:07:03,279 --> 00:07:05,320 Speaker 1: going to have a pretty broad power to respond to 125 00:07:05,320 --> 00:07:08,160 Speaker 1: public health issues and order stay at home orders and 126 00:07:08,240 --> 00:07:11,280 Speaker 1: other similar regulations. Let me ask you this rick, because 127 00:07:11,520 --> 00:07:13,960 Speaker 1: let's just take the example of a pastor in Louisiana 128 00:07:14,040 --> 00:07:18,760 Speaker 1: who health services on Palm Sunday despite being charged multiple 129 00:07:18,800 --> 00:07:23,440 Speaker 1: times with violating that state band. In some states and cities, 130 00:07:23,920 --> 00:07:28,240 Speaker 1: they're charging these pastors, they're serving them with summons. Is 131 00:07:28,640 --> 00:07:31,080 Speaker 1: I don't think anyone has been hauled off to jail yet. 132 00:07:31,120 --> 00:07:34,200 Speaker 1: But that's a bad look, isn't it. I would think 133 00:07:34,240 --> 00:07:36,400 Speaker 1: that for a lot of political officials, that would be 134 00:07:36,440 --> 00:07:38,280 Speaker 1: a bad look, and they would very much want to 135 00:07:38,320 --> 00:07:40,840 Speaker 1: avoid that. At the same time, I suppose you could 136 00:07:40,880 --> 00:07:43,040 Speaker 1: say that for a lot of religious believers, it's a 137 00:07:43,040 --> 00:07:46,880 Speaker 1: bad look to see pastors and other religious leaders kind 138 00:07:46,880 --> 00:07:52,280 Speaker 1: of deliberately flouting rules that public health officials are telling 139 00:07:52,360 --> 00:07:56,120 Speaker 1: us are important in order to stop the spread of 140 00:07:56,280 --> 00:07:58,640 Speaker 1: the virus. I think that kind of cuts both ways. 141 00:07:58,840 --> 00:08:01,080 Speaker 1: You know, in my in my own religious community, the 142 00:08:01,200 --> 00:08:04,000 Speaker 1: Catholic bishops have been pretty united in saying like, look, 143 00:08:04,040 --> 00:08:07,760 Speaker 1: we really Missmass this week, but these orders are legal 144 00:08:07,880 --> 00:08:11,240 Speaker 1: and their temporary measures, and they're justified, and so you know, 145 00:08:11,280 --> 00:08:13,520 Speaker 1: we have to find ways to be together spiritually that 146 00:08:13,640 --> 00:08:16,600 Speaker 1: don't violate the rules. But you're certainly right. The last 147 00:08:16,720 --> 00:08:19,840 Speaker 1: thing a political official wants is, you know, video of 148 00:08:19,880 --> 00:08:22,600 Speaker 1: pastors getting hauled off to jail for holding church services. 149 00:08:22,960 --> 00:08:25,960 Speaker 1: But be that as it may. Officials are allowed to 150 00:08:26,040 --> 00:08:31,000 Speaker 1: regulate large gatherings, and whether or not there are exemptions 151 00:08:31,040 --> 00:08:34,320 Speaker 1: to those gatherings is going to be a political question 152 00:08:34,800 --> 00:08:37,480 Speaker 1: that courts are probably going to defer to legislators on 153 00:08:37,679 --> 00:08:40,240 Speaker 1: and to and to officials on. Has a Supreme Court 154 00:08:40,360 --> 00:08:43,959 Speaker 1: ever ruled in a situation similar to this? Is there 155 00:08:44,000 --> 00:08:48,040 Speaker 1: any case you can extrapolate from Well, it's it's tricky 156 00:08:48,080 --> 00:08:50,040 Speaker 1: to say similar. I mean, at one level, you could 157 00:08:50,080 --> 00:08:53,200 Speaker 1: just say the famous Employment Division versus Smith stands for 158 00:08:53,240 --> 00:08:57,360 Speaker 1: the general proposition that governments are allowed to issue neutral 159 00:08:57,760 --> 00:09:00,800 Speaker 1: regulations even if they affect religious practice. Is but you 160 00:09:00,840 --> 00:09:03,040 Speaker 1: can go back to earlier cases having to do with 161 00:09:03,240 --> 00:09:06,120 Speaker 1: regulations in the interests of the public health, even when 162 00:09:06,120 --> 00:09:09,400 Speaker 1: they burden religious practice. I think there's a famous one 163 00:09:09,400 --> 00:09:12,319 Speaker 1: called Prince versus Massachusetts from back in the forties. So 164 00:09:12,400 --> 00:09:15,040 Speaker 1: let's you thank god that doesn't come up all that often. 165 00:09:15,679 --> 00:09:19,920 Speaker 1: But I think the precedents that we have do support 166 00:09:20,040 --> 00:09:23,360 Speaker 1: the ability of governments to issue orders like this and 167 00:09:23,440 --> 00:09:26,320 Speaker 1: to apply them to gatherings, even if those gatherings are 168 00:09:26,640 --> 00:09:29,600 Speaker 1: religious in nature. I just question whether this is going 169 00:09:29,640 --> 00:09:34,160 Speaker 1: to be more fodder for the culture wars, more divisions 170 00:09:34,280 --> 00:09:38,480 Speaker 1: science versus religion, and you know, some pastors even saying 171 00:09:38,559 --> 00:09:42,319 Speaker 1: that it's it's political persecution. Yeah, that's a risk, and 172 00:09:42,360 --> 00:09:44,600 Speaker 1: I'm keeping an eye on that as well. I do 173 00:09:44,679 --> 00:09:47,680 Speaker 1: think that it's important little perspective that is, at the 174 00:09:47,800 --> 00:09:52,680 Speaker 1: vast majority of religious leaders in religious communities are, even 175 00:09:52,679 --> 00:09:55,600 Speaker 1: though it's painful this time of year in particular, are 176 00:09:55,679 --> 00:09:59,800 Speaker 1: complying with these orders. It's a very small subset of 177 00:10:00,480 --> 00:10:03,280 Speaker 1: groups and leaders who have kind of some their nose 178 00:10:03,480 --> 00:10:07,240 Speaker 1: or you know, called into question. The scientific basis, my sentence, 179 00:10:07,200 --> 00:10:09,720 Speaker 1: is a pretty broad consensus that at least for now, 180 00:10:09,920 --> 00:10:13,479 Speaker 1: at the temporary measure, these limits on gathering are appropriate, 181 00:10:13,559 --> 00:10:16,280 Speaker 1: So my hope is that it won't create this kind 182 00:10:16,280 --> 00:10:19,920 Speaker 1: of bad feeling and skepticism, and also that religious believers 183 00:10:19,920 --> 00:10:22,960 Speaker 1: who do have plenty of reasons to complain sometimes about 184 00:10:23,040 --> 00:10:25,360 Speaker 1: burdens and government regulations, that someone who cares a lot 185 00:10:25,360 --> 00:10:28,120 Speaker 1: about religious freedom one doesn't want to cry wolf. There 186 00:10:28,120 --> 00:10:31,120 Speaker 1: are threats to religious freedom out there, but this probably 187 00:10:31,440 --> 00:10:34,320 Speaker 1: at least in my personal judgment, is not the most 188 00:10:34,720 --> 00:10:37,000 Speaker 1: glaring one. This strikes me as being an occasion of 189 00:10:37,120 --> 00:10:40,640 Speaker 1: where the regulations are reasonable and sensitive to the burdens 190 00:10:40,640 --> 00:10:43,600 Speaker 1: that are being put on religious believers. Thanks Rick, that's 191 00:10:43,720 --> 00:10:47,000 Speaker 1: Richard Garnett, professor at the University of Notre Dame Law School. 192 00:10:50,600 --> 00:10:53,559 Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can 193 00:10:53,600 --> 00:10:57,320 Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud, 194 00:10:57,400 --> 00:11:01,280 Speaker 1: and on Bloomberg dot com slash podcast. I'm June Broso. 195 00:11:01,760 --> 00:11:08,880 Speaker 1: This is Bloomberg h