WEBVTT - Can Pastors Defy Stay-at-Home Orders?

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Tens of thousands usually flocked to the Vatican for Palm

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<v Speaker 1>Sunday services, but last Sunday, the bells rang in an

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<v Speaker 1>empty St. Peter's Square before the Pope said Mass inside

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<v Speaker 1>the Basilica with only a few prelates, nuns, and lay people.

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<v Speaker 1>In this country, churches are trying online services. I want

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<v Speaker 1>you to think about your future, drive through communions, pray

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<v Speaker 1>that you will discover Her with and even outdoor services

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<v Speaker 1>with pastors preaching from flatbed trucks and church members parked

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<v Speaker 1>in cars with their radio's tuned to a low power

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<v Speaker 1>FM transmitter to hear this and a God's people and

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<v Speaker 1>said amen. But some pastors are defying governor's day at

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<v Speaker 1>home orders, saying it violates religious freedoms and their constitutional rights.

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<v Speaker 1>Louisiana pastor Tony Spell was arrested last month for holding

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<v Speaker 1>services in violation of the governor's stay at home order,

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<v Speaker 1>but he still held services for hundreds at his church

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<v Speaker 1>on Palm Sunday. People's hope is in the House of God.

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<v Speaker 1>If they do contract the virus, if they have fears

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<v Speaker 1>of the virus. The church is more essential now than

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<v Speaker 1>ever to pray with people. Kentucky Governor Andy Basher had

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<v Speaker 1>dire words for another pastor, Jack Roberts, after he opened

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<v Speaker 1>his church doors for services spread the virus, and at

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<v Speaker 1>Christmas he's going to have fewer people in his congregation.

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<v Speaker 1>Journing me is Richard Garnett, professor at the University of

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<v Speaker 1>Notre Dame Law School. So, rick, can governors order churches

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<v Speaker 1>not to hold services? Yes, they do have the power

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<v Speaker 1>to issue day at home type regulations, and they can

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<v Speaker 1>limit large in person gatherings even if those limits are

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<v Speaker 1>applied to religious gathers. Now, what they couldn't do is

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<v Speaker 1>it would be infamous able to target churches for special regulations.

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<v Speaker 1>If you are a governor, you couldn't say, you know,

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<v Speaker 1>it's fine to keep open the baseball games and the

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<v Speaker 1>bowling leagues, but the churches they've got all shut down,

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<v Speaker 1>So you can't target them. You can't discriminate against them.

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<v Speaker 1>But if you have a general neutral rule against public gatherings,

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<v Speaker 1>you're allowed to apply that to churches as well. And

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<v Speaker 1>that's true even in states that have religious freedom laws

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<v Speaker 1>like the Religious Freed Administration Act. Because any court I

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<v Speaker 1>can imagine is going to say that the burden on

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<v Speaker 1>this religious exercise, which is it is a serious burden,

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<v Speaker 1>especially this time of year, that that burden satisfies the

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<v Speaker 1>so called strict scrutiny requirement that a lot of these

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<v Speaker 1>laws have. More than forty state governors have issued stay

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<v Speaker 1>at home orders, but about fourteen of them have exempted

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<v Speaker 1>religious gatherings. The Florida governor said he didn't think he

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<v Speaker 1>could tell a church not to hold services. Yeah, I

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<v Speaker 1>think he's probably wrong about that. Governors do have the

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<v Speaker 1>power again to limit large gatherings of people in order

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<v Speaker 1>to serve this public health emergency against so long as

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<v Speaker 1>they're not targeting churches. But at the same time, it's

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<v Speaker 1>true that governors have the authority if they want to

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<v Speaker 1>provide limited exemptions in order to take account of how

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<v Speaker 1>serious and important religious services are too many people. I'm

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<v Speaker 1>not a public health expert, so I wouldn't purport to

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<v Speaker 1>say whether those exemptions are good policy or not. But

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<v Speaker 1>I don't believe they're legally required. And there's been a

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<v Speaker 1>lot of variation from state to state in terms of

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<v Speaker 1>how these orders have been crafted. Some governors have left

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<v Speaker 1>open parks, others have closed them, some have set the

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<v Speaker 1>thresholds on the gathering at different levels. That's to be

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<v Speaker 1>expected in the federal system. I think the key point

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<v Speaker 1>for churches is that governments are not allowed to discriminate

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<v Speaker 1>against religious services, but they are allowed to include religious

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<v Speaker 1>gatherings under the heading of these larger gatherings. That what

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<v Speaker 1>would be problematic is if a governor said, I'm going

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<v Speaker 1>to exempt all kinds of other gatherings and clubs from

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<v Speaker 1>the state at home order, but going to really stick

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<v Speaker 1>it to the churches. You can't have that kind of

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<v Speaker 1>singling out or discrimination against religious services. In the state

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<v Speaker 1>of Texas, three pastors are suing. They're challenging the constitutionality

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<v Speaker 1>of us stay at home order, and they cite the

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<v Speaker 1>fact that gun stores are open for business as essential

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<v Speaker 1>in Texas, so why shouldn't churches. Well, right, And basically

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<v Speaker 1>what these pastors are trying to do is to make

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<v Speaker 1>the argument that I was just describing that these stay

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<v Speaker 1>at home orders are not neutral, they're not generally applicable,

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<v Speaker 1>that they're kind of picking and choosing and targeting even churches. Now,

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<v Speaker 1>you know, what's what's essential is going to be somewhat

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<v Speaker 1>in the eye of the beholder. But it is true

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<v Speaker 1>that if a particular order is exempting all kinds of

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<v Speaker 1>gatherings and really only cracking down on religious ones, that

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<v Speaker 1>is going to raise some judicial eyebrows. In my own

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<v Speaker 1>state of Indiana, you know, we don't have an exemption

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<v Speaker 1>for religious gatherings, so they're they're shut down if there

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<v Speaker 1>are over ten people, I believe, but that's been applied

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<v Speaker 1>broadly in a neutral way. I suspect that's going to

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<v Speaker 1>be what happens in Texas as well. For what it's worth,

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<v Speaker 1>that these challenges will be unsuccessful because courts are not

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<v Speaker 1>going to want to second guests, especially in a time

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<v Speaker 1>of a public health emergency. They're not They're not going

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<v Speaker 1>to want to second guess the politically accountable decision makers

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<v Speaker 1>who have to make these judgment calls about what needs

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<v Speaker 1>to be open and what needs to be shut. In fact,

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<v Speaker 1>a judge in Florida recently refused to order the beaches

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<v Speaker 1>closed against the governor's order, saying that it really wasn't

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<v Speaker 1>up to him to make that kind of a decision

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<v Speaker 1>when there's a public health emergency. Yeah, I mean, the

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<v Speaker 1>way are kind of separation of powers ideas work. Whether

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<v Speaker 1>it's the state level or the federal level, is courts

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<v Speaker 1>are going to be pretty reluctant to engage in this

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<v Speaker 1>kind of judgment call policy making, and they should be

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<v Speaker 1>the role of a court, like in the religious freedom context,

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<v Speaker 1>would be to say, okay, if let's imagine it's the

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<v Speaker 1>state that has a of just freedom law, if these

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<v Speaker 1>stay at home orders are imposing a substantial burden on

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<v Speaker 1>religious exercise, and again especially during Holy Wee can pass over,

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<v Speaker 1>it seems like they are. Is that burden serving a

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<v Speaker 1>compelling state interests? That's the kind of legal buzzword we used.

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<v Speaker 1>And almost any court I can imagine is going to

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<v Speaker 1>defer to the decisions of the relevant administrators or political officials.

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<v Speaker 1>So it doesn't matter if it's a governor or it's

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<v Speaker 1>a local official, let's say a mayor. Well, it gets

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<v Speaker 1>kind of in the weeds because state law controls how

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<v Speaker 1>much power mayors have. But I think for our purposes

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<v Speaker 1>as a general matter, it doesn't really matter. The local

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<v Speaker 1>executive again I'm speaking generally, is going to have the authority,

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<v Speaker 1>at least as a preliminary matter, to make the kind

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<v Speaker 1>of cost benefit analysis that is behind these orders. How

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<v Speaker 1>far up the chain of command a local officials decision

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<v Speaker 1>can be appealed. That really varies from state to state

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<v Speaker 1>depending on how state government's structured. But certainly the governor,

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<v Speaker 1>and this is you know, an ancient idea of the

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<v Speaker 1>police power and so on, State legislators and governors are

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<v Speaker 1>going to have a pretty broad power to respond to

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<v Speaker 1>public health issues and order stay at home orders and

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<v Speaker 1>other similar regulations. Let me ask you this rick, because

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<v Speaker 1>let's just take the example of a pastor in Louisiana

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<v Speaker 1>who health services on Palm Sunday despite being charged multiple

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<v Speaker 1>times with violating that state band. In some states and cities,

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<v Speaker 1>they're charging these pastors, they're serving them with summons. Is

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<v Speaker 1>I don't think anyone has been hauled off to jail yet.

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<v Speaker 1>But that's a bad look, isn't it. I would think

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<v Speaker 1>that for a lot of political officials, that would be

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<v Speaker 1>a bad look, and they would very much want to

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<v Speaker 1>avoid that. At the same time, I suppose you could

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<v Speaker 1>say that for a lot of religious believers, it's a

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<v Speaker 1>bad look to see pastors and other religious leaders kind

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<v Speaker 1>of deliberately flouting rules that public health officials are telling

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<v Speaker 1>us are important in order to stop the spread of

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<v Speaker 1>the virus. I think that kind of cuts both ways.

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<v Speaker 1>You know, in my in my own religious community, the

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<v Speaker 1>Catholic bishops have been pretty united in saying like, look,

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<v Speaker 1>we really Missmass this week, but these orders are legal

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<v Speaker 1>and their temporary measures, and they're justified, and so you know,

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<v Speaker 1>we have to find ways to be together spiritually that

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<v Speaker 1>don't violate the rules. But you're certainly right. The last

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<v Speaker 1>thing a political official wants is, you know, video of

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<v Speaker 1>pastors getting hauled off to jail for holding church services.

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<v Speaker 1>But be that as it may. Officials are allowed to

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<v Speaker 1>regulate large gatherings, and whether or not there are exemptions

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<v Speaker 1>to those gatherings is going to be a political question

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<v Speaker 1>that courts are probably going to defer to legislators on

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<v Speaker 1>and to and to officials on. Has a Supreme Court

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<v Speaker 1>ever ruled in a situation similar to this? Is there

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<v Speaker 1>any case you can extrapolate from Well, it's it's tricky

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<v Speaker 1>to say similar. I mean, at one level, you could

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<v Speaker 1>just say the famous Employment Division versus Smith stands for

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<v Speaker 1>the general proposition that governments are allowed to issue neutral

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<v Speaker 1>regulations even if they affect religious practice. Is but you

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<v Speaker 1>can go back to earlier cases having to do with

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<v Speaker 1>regulations in the interests of the public health, even when

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<v Speaker 1>they burden religious practice. I think there's a famous one

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<v Speaker 1>called Prince versus Massachusetts from back in the forties. So

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<v Speaker 1>let's you thank god that doesn't come up all that often.

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<v Speaker 1>But I think the precedents that we have do support

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<v Speaker 1>the ability of governments to issue orders like this and

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<v Speaker 1>to apply them to gatherings, even if those gatherings are

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<v Speaker 1>religious in nature. I just question whether this is going

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<v Speaker 1>to be more fodder for the culture wars, more divisions

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<v Speaker 1>science versus religion, and you know, some pastors even saying

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<v Speaker 1>that it's it's political persecution. Yeah, that's a risk, and

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<v Speaker 1>I'm keeping an eye on that as well. I do

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<v Speaker 1>think that it's important little perspective that is, at the

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<v Speaker 1>vast majority of religious leaders in religious communities are, even

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<v Speaker 1>though it's painful this time of year in particular, are

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<v Speaker 1>complying with these orders. It's a very small subset of

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<v Speaker 1>groups and leaders who have kind of some their nose

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<v Speaker 1>or you know, called into question. The scientific basis, my sentence,

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<v Speaker 1>is a pretty broad consensus that at least for now,

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<v Speaker 1>at the temporary measure, these limits on gathering are appropriate,

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<v Speaker 1>So my hope is that it won't create this kind

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<v Speaker 1>of bad feeling and skepticism, and also that religious believers

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<v Speaker 1>who do have plenty of reasons to complain sometimes about

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<v Speaker 1>burdens and government regulations, that someone who cares a lot

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<v Speaker 1>about religious freedom one doesn't want to cry wolf. There

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<v Speaker 1>are threats to religious freedom out there, but this probably

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<v Speaker 1>at least in my personal judgment, is not the most

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<v Speaker 1>glaring one. This strikes me as being an occasion of

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<v Speaker 1>where the regulations are reasonable and sensitive to the burdens

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<v Speaker 1>that are being put on religious believers. Thanks Rick, that's

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<v Speaker 1>Richard Garnett, professor at the University of Notre Dame Law School.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Broso.

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<v Speaker 1>This is Bloomberg h