Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Tens of thousands usually flocked to the Vatican for Palm
Speaker 1: Sunday services, but last Sunday, the bells rang in an
Speaker 1: empty St. Peter's Square before the Pope said Mass inside
Speaker 1: the Basilica with only a few prelates, nuns, and lay people.
Speaker 1: In this country, churches are trying online services. I want
Speaker 1: you to think about your future, drive through communions, pray
Speaker 1: that you will discover Her with and even outdoor services
Speaker 1: with pastors preaching from flatbed trucks and church members parked
Speaker 1: in cars with their radio's tuned to a low power
Speaker 1: FM transmitter to hear this and a God's people and
Speaker 1: said amen. But some pastors are defying governor's day at
Speaker 1: home orders, saying it violates religious freedoms and their constitutional rights.
Speaker 1: Louisiana pastor Tony Spell was arrested last month for holding
Speaker 1: services in violation of the governor's stay at home order,
Speaker 1: but he still held services for hundreds at his church
Speaker 1: on Palm Sunday. People's hope is in the House of God.
Speaker 1: If they do contract the virus, if they have fears
Speaker 1: of the virus. The church is more essential now than
Speaker 1: ever to pray with people. Kentucky Governor Andy Basher had
Speaker 1: dire words for another pastor, Jack Roberts, after he opened
Speaker 1: his church doors for services spread the virus, and at
Speaker 1: Christmas he's going to have fewer people in his congregation.
Speaker 1: Journing me is Richard Garnett, professor at the University of
Speaker 1: Notre Dame Law School. So, rick, can governors order churches
Speaker 1: not to hold services? Yes, they do have the power
Speaker 1: to issue day at home type regulations, and they can
Speaker 1: limit large in person gatherings even if those limits are
Speaker 1: applied to religious gathers. Now, what they couldn't do is
Speaker 1: it would be infamous able to target churches for special regulations.
Speaker 1: If you are a governor, you couldn't say, you know,
Speaker 1: it's fine to keep open the baseball games and the
Speaker 1: bowling leagues, but the churches they've got all shut down,
Speaker 1: So you can't target them. You can't discriminate against them.
Speaker 1: But if you have a general neutral rule against public gatherings,
Speaker 1: you're allowed to apply that to churches as well. And
Speaker 1: that's true even in states that have religious freedom laws
Speaker 1: like the Religious Freed Administration Act. Because any court I
Speaker 1: can imagine is going to say that the burden on
Speaker 1: this religious exercise, which is it is a serious burden,
Speaker 1: especially this time of year, that that burden satisfies the
Speaker 1: so called strict scrutiny requirement that a lot of these
Speaker 1: laws have. More than forty state governors have issued stay
Speaker 1: at home orders, but about fourteen of them have exempted
Speaker 1: religious gatherings. The Florida governor said he didn't think he
Speaker 1: could tell a church not to hold services. Yeah, I
Speaker 1: think he's probably wrong about that. Governors do have the
Speaker 1: power again to limit large gatherings of people in order
Speaker 1: to serve this public health emergency against so long as
Speaker 1: they're not targeting churches. But at the same time, it's
Speaker 1: true that governors have the authority if they want to
Speaker 1: provide limited exemptions in order to take account of how
Speaker 1: serious and important religious services are too many people. I'm
Speaker 1: not a public health expert, so I wouldn't purport to
Speaker 1: say whether those exemptions are good policy or not. But
Speaker 1: I don't believe they're legally required. And there's been a
Speaker 1: lot of variation from state to state in terms of
Speaker 1: how these orders have been crafted. Some governors have left
Speaker 1: open parks, others have closed them, some have set the
Speaker 1: thresholds on the gathering at different levels. That's to be
Speaker 1: expected in the federal system. I think the key point
Speaker 1: for churches is that governments are not allowed to discriminate
Speaker 1: against religious services, but they are allowed to include religious
Speaker 1: gatherings under the heading of these larger gatherings. That what
Speaker 1: would be problematic is if a governor said, I'm going
Speaker 1: to exempt all kinds of other gatherings and clubs from
Speaker 1: the state at home order, but going to really stick
Speaker 1: it to the churches. You can't have that kind of
Speaker 1: singling out or discrimination against religious services. In the state
Speaker 1: of Texas, three pastors are suing. They're challenging the constitutionality
Speaker 1: of us stay at home order, and they cite the
Speaker 1: fact that gun stores are open for business as essential
Speaker 1: in Texas, so why shouldn't churches. Well, right, And basically
Speaker 1: what these pastors are trying to do is to make
Speaker 1: the argument that I was just describing that these stay
Speaker 1: at home orders are not neutral, they're not generally applicable,
Speaker 1: that they're kind of picking and choosing and targeting even churches. Now,
Speaker 1: you know, what's what's essential is going to be somewhat
Speaker 1: in the eye of the beholder. But it is true
Speaker 1: that if a particular order is exempting all kinds of
Speaker 1: gatherings and really only cracking down on religious ones, that
Speaker 1: is going to raise some judicial eyebrows. In my own
Speaker 1: state of Indiana, you know, we don't have an exemption
Speaker 1: for religious gatherings, so they're they're shut down if there
Speaker 1: are over ten people, I believe, but that's been applied
Speaker 1: broadly in a neutral way. I suspect that's going to
Speaker 1: be what happens in Texas as well. For what it's worth,
Speaker 1: that these challenges will be unsuccessful because courts are not
Speaker 1: going to want to second guests, especially in a time
Speaker 1: of a public health emergency. They're not They're not going
Speaker 1: to want to second guess the politically accountable decision makers
Speaker 1: who have to make these judgment calls about what needs
Speaker 1: to be open and what needs to be shut. In fact,
Speaker 1: a judge in Florida recently refused to order the beaches
Speaker 1: closed against the governor's order, saying that it really wasn't
Speaker 1: up to him to make that kind of a decision
Speaker 1: when there's a public health emergency. Yeah, I mean, the
Speaker 1: way are kind of separation of powers ideas work. Whether
Speaker 1: it's the state level or the federal level, is courts
Speaker 1: are going to be pretty reluctant to engage in this
Speaker 1: kind of judgment call policy making, and they should be
Speaker 1: the role of a court, like in the religious freedom context,
Speaker 1: would be to say, okay, if let's imagine it's the
Speaker 1: state that has a of just freedom law, if these
Speaker 1: stay at home orders are imposing a substantial burden on
Speaker 1: religious exercise, and again especially during Holy Wee can pass over,
Speaker 1: it seems like they are. Is that burden serving a
Speaker 1: compelling state interests? That's the kind of legal buzzword we used.
Speaker 1: And almost any court I can imagine is going to
Speaker 1: defer to the decisions of the relevant administrators or political officials.
Speaker 1: So it doesn't matter if it's a governor or it's
Speaker 1: a local official, let's say a mayor. Well, it gets
Speaker 1: kind of in the weeds because state law controls how
Speaker 1: much power mayors have. But I think for our purposes
Speaker 1: as a general matter, it doesn't really matter. The local
Speaker 1: executive again I'm speaking generally, is going to have the authority,
Speaker 1: at least as a preliminary matter, to make the kind
Speaker 1: of cost benefit analysis that is behind these orders. How
Speaker 1: far up the chain of command a local officials decision
Speaker 1: can be appealed. That really varies from state to state
Speaker 1: depending on how state government's structured. But certainly the governor,
Speaker 1: and this is you know, an ancient idea of the
Speaker 1: police power and so on, State legislators and governors are
Speaker 1: going to have a pretty broad power to respond to
Speaker 1: public health issues and order stay at home orders and
Speaker 1: other similar regulations. Let me ask you this rick, because
Speaker 1: let's just take the example of a pastor in Louisiana
Speaker 1: who health services on Palm Sunday despite being charged multiple
Speaker 1: times with violating that state band. In some states and cities,
Speaker 1: they're charging these pastors, they're serving them with summons. Is
Speaker 1: I don't think anyone has been hauled off to jail yet.
Speaker 1: But that's a bad look, isn't it. I would think
Speaker 1: that for a lot of political officials, that would be
Speaker 1: a bad look, and they would very much want to
Speaker 1: avoid that. At the same time, I suppose you could
Speaker 1: say that for a lot of religious believers, it's a
Speaker 1: bad look to see pastors and other religious leaders kind
Speaker 1: of deliberately flouting rules that public health officials are telling
Speaker 1: us are important in order to stop the spread of
Speaker 1: the virus. I think that kind of cuts both ways.
Speaker 1: You know, in my in my own religious community, the
Speaker 1: Catholic bishops have been pretty united in saying like, look,
Speaker 1: we really Missmass this week, but these orders are legal
Speaker 1: and their temporary measures, and they're justified, and so you know,
Speaker 1: we have to find ways to be together spiritually that
Speaker 1: don't violate the rules. But you're certainly right. The last
Speaker 1: thing a political official wants is, you know, video of
Speaker 1: pastors getting hauled off to jail for holding church services.
Speaker 1: But be that as it may. Officials are allowed to
Speaker 1: regulate large gatherings, and whether or not there are exemptions
Speaker 1: to those gatherings is going to be a political question
Speaker 1: that courts are probably going to defer to legislators on
Speaker 1: and to and to officials on. Has a Supreme Court
Speaker 1: ever ruled in a situation similar to this? Is there
Speaker 1: any case you can extrapolate from Well, it's it's tricky
Speaker 1: to say similar. I mean, at one level, you could
Speaker 1: just say the famous Employment Division versus Smith stands for
Speaker 1: the general proposition that governments are allowed to issue neutral
Speaker 1: regulations even if they affect religious practice. Is but you
Speaker 1: can go back to earlier cases having to do with
Speaker 1: regulations in the interests of the public health, even when
Speaker 1: they burden religious practice. I think there's a famous one
Speaker 1: called Prince versus Massachusetts from back in the forties. So
Speaker 1: let's you thank god that doesn't come up all that often.
Speaker 1: But I think the precedents that we have do support
Speaker 1: the ability of governments to issue orders like this and
Speaker 1: to apply them to gatherings, even if those gatherings are
Speaker 1: religious in nature. I just question whether this is going
Speaker 1: to be more fodder for the culture wars, more divisions
Speaker 1: science versus religion, and you know, some pastors even saying
Speaker 1: that it's it's political persecution. Yeah, that's a risk, and
Speaker 1: I'm keeping an eye on that as well. I do
Speaker 1: think that it's important little perspective that is, at the
Speaker 1: vast majority of religious leaders in religious communities are, even
Speaker 1: though it's painful this time of year in particular, are
Speaker 1: complying with these orders. It's a very small subset of
Speaker 1: groups and leaders who have kind of some their nose
Speaker 1: or you know, called into question. The scientific basis, my sentence,
Speaker 1: is a pretty broad consensus that at least for now,
Speaker 1: at the temporary measure, these limits on gathering are appropriate,
Speaker 1: So my hope is that it won't create this kind
Speaker 1: of bad feeling and skepticism, and also that religious believers
Speaker 1: who do have plenty of reasons to complain sometimes about
Speaker 1: burdens and government regulations, that someone who cares a lot
Speaker 1: about religious freedom one doesn't want to cry wolf. There
Speaker 1: are threats to religious freedom out there, but this probably
Speaker 1: at least in my personal judgment, is not the most
Speaker 1: glaring one. This strikes me as being an occasion of
Speaker 1: where the regulations are reasonable and sensitive to the burdens
Speaker 1: that are being put on religious believers. Thanks Rick, that's
Speaker 1: Richard Garnett, professor at the University of Notre Dame Law School.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Broso.
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