The COVID-19 pandemic has upended Americans’ daily lives. What one day people took for granted, like going to church, was the next day potentially deadly and prohibited by law. In response to the pandemic, state and local officials ordered entities such as non-essential businesses and churches to close. But as churches tried to adapt to uncertain circumstances by offering drive-thru and drive-up services, some were required to stop these activities. As the public-health situation improved, some officials required churches to remain closed, even as they allowed business establishments to open. These situations involving churches and their freedom to operate prompted lawsuits and drew the attention of the U.S. Department of Justice.
Outside of church, too, religious citizens have faced unique challenges. For example, Samaritan’s Purse, a Christian humanitarian organization, was asked to remove the field hospital it set up in New York City because of its leader’s views on same-sex marriage and other social issues. And now, as California public schools announce they will not be re-opening for in-person classes in the fall, religious schools in the state are being told they may not open either, even though many of these schools are much smaller than public schools.
These circumstances have raised a host of legal and constitutional questions regarding how religion is treated and how it should be treated. What are the limits of religious liberty during a public-health emergency, and what powers do government officials have to regulate religious exercise? In what cases, if any, can government prefer religion and when, if ever, is it required to discriminate against religion? Law professors Rick Garnett and Bill Marshall join us to discuss the legal and constitutional issues involved in these evolving matters and more.
Richard Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law, University of Notre Dame Law School
William Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
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Nick Marr: Welcome to The Federalist Society’s Teleforum conference call as this afternoon, August 7, 2020, we discuss “COVID-19 and Religious Matters.” My name is Nick Marr. I’m Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call.
And today, we’re fortunate to have with us Rick Garnett, who’s the Paul J. Schierl and Fort Howard Corporation Professor of Law at University of Notre Dame’s Law School, and William Marshall, who’s the William Rand Kenan, Jr. Distinguished Professor of Law at the University of North Carolina School of Law. So we’ll have a couple of questions -- the format for the audience: we’ll have a few questions moderated back and forth, and then we’ll open it up hopefully around the half hour to audience questions. So be preparing those and have them in mind for when we get to that portion of the call.
And Professor Marshall, just before we get started, there’s some background noise on your end, so just be careful of that as we continue on the call. So I’ll open it up with the first question I have for our professors. It goes back to the kind of beginning of this pandemic -- the question of live church services as churches are having to close, as everything was having to close. Some were adapting with drive through services and such. So the question kind of is broad. What is the limits of religious liberty specifically during a public health emergency? And what are the kind of government powers involved in those decisions?
William Marshall: Well, let me take a first crack at it. But before I do that, I want to thank you, Nick, for putting this program together. I want to thank my friend Rick who I always love speaking to and arguing with. And I think he’s been right on a couple of our conversations, though I can’t remember any specifically. And also I want to thank the members of The Federalist Society and the other people who are tuning in. This is a time where we desperately need dialogue. We need to be able to disagree and be able to disagree in good spirit and good faith. So I want to thank The Federalist Society for hosting this particular session.
In answer to your question, I don’t really think what went on in the early stages of this is a religious question at all. It’s a public health question. Was it sensible or was it permissible for communities, states, localities to be able to close out certain kinds of gatherings? And I think the answer of that is clearly yes, and it goes back a long way in terms of the ability of communities to fight pandemics.
It’s not a matter of individual choice where somebody can choose to do what they want to without any repercussions. Somebody who decides to violate a public health requirement can harm a lot of other people. And as the Court said in the old case of Jacobson v. Massachusetts, the state has the right to prevent that sort of harm. And I think the Court, in that case, called it self-defense. The communities have a right to use methods of self-defense to prevent the community from getting sick.
So the question really was is were religious organizations treated the same as other comparable organizations? They are gatherings. And so what the state needed to do was treat all gatherings the same. A gathering is different than shopping in a grocery store because people are not as close. People are not singing, or people are not talking. So the question that came up in a lot of these earlier cases is simply the question of was the religious organization or the religious activity being treated the same way that others were for public health purposes?
Richard Garnett: Just to add on to that, Bill, first, it’s always great to talk to you, too. And I’ll admit that you’ve been right a few times, too. I think I’m on the same page as you are. But just to build this up a little bit, one distinction that’s worth drawing is the distinction between the government’s public health measures that arguably impact religious liberty on the one hand and, on the other hand, the choices and the discernment that a lot of religious communities and religious believers are going to on their own about how to respond.
The tradition I’m most familiar with, my own—Roman Catholicism—the American Catholic bishops on their own decided to closely regulate and limit in person religious celebrations, including the celebration of mass, pretty quickly. And there’s been gradual re-openings for religious services as they’ve been permitted by local law. But it’s worth remembering before we even get into the government versus religion thing that religious believers of all stripes have been reflecting a lot on what their own obligations are in terms of keeping people healthy and trying to prevent avoidable spread of the virus.
So that said, I know our main focus is on government regulations. I think it’s clear, as Bill Marshall said, that state and local governments have the police power. And the police power includes the ability to regulate gatherings and other activities in order to prevent public health problems. I think that’s pretty well-established.
And so the trickier question is, well, to what extent is that police power limited by our constitutional commitment to religious freedom. I think it’s got to be the case that that commitment to religious freedom means something, so what are the implications of it? Well, one of the implications, as Bill Marshall said, is that at the very least the government can’t single out religious gatherings for kind of particularized unfavorable treatment. You can’t treat religious gatherings worse just because they’re religious. At the very least, they have to be treated similarly to other kinds of similar activities.
Well, what makes two activities similar. There’s the rub, right? So we’ve had these debates about, if a jurisdiction allows people to go to a drive-in movie theatre, then shouldn’t that same jurisdiction allow people to go to a drive-up religious service? Or to sort of pick on the Nevada example a little bit, if a jurisdiction decides that it’s really useful to its economy to open up casinos, can it nonetheless persist in very strict limits on religious gatherings?
And I think there’s been -- I think these cases are difficult. My own view is that both sides have sometimes made comparisons that were unwarranted. As I think I heard Bill suggest, just because a grocery store is open it doesn’t necessarily follow that it’s safe to have a large church gathering for two hours where people are in a chair next to each other and singing. Those strike me as being different kinds of activities. And a state might well distinguish between the two of them.
Comparisons get a little trickier once you start saying that, even if a church has no singing and even if they practice social distancing, they have to stay closed or they’re limited to 15 people. At the same time, you’re allowing casinos and movie theatres to open or even restaurants for that matter. So there’s room for reasonable disagreement about what the relevant comparisons are. But I suspect Bill and I both agree that, at the very least, religious gatherings need to be treated with the same solicitude as similar nonreligious ones.
And I would go a little further than that, and I welcome Bill’s reaction on this. I think that even though religious freedom is not absolute and even though the government does have the police power that it is one of our foundational commitments to appreciate and to value the freedom of religion. And so it would be a mistake for a government to take the position that, look, religious gatherings are not all that important to religious people. After all, you can pray in your own head, or you can pray in your house. And these restrictions aren’t really limiting the freedom of religion at all.
And that strikes me as wrong. We need to confront and admit the fact that these gathering regulations do impact the freedom of religion, that part of the freedom of religion is the freedom to gather together in prayer and worship. Many, probably most, traditions have a view kind of like that. And so to be kind of casual about the burden that these closings are imposing is a mistake. And I think local governments should, if they take seriously our commitment to freedom of religion -- they should be doing all that they can within the bounds of their public health obligations. They should be doing all that they can to facilitate the safe practice of religion.
William Marshall: Yeah. I don’t think I disagree with any of that. Freedom of speech is also critically important and foundational. And I think that communities need to be responsible about how they limit gatherings for political purposes. I certainly would think that gatherings for political purposes should be treated like gatherings for religious purposes, with some sort of solicitude to the activity involved.
At the same time, of course, you have to recognize that there are particular dangers. I was just reading that in Ohio, after a church gathering, 91 people contracted the virus. It can be a dangerous atmosphere, and certain circumstances, like a protest, can be a dangerous atmosphere. And communities have to recognize the importance of the activity but also recognize the health dangers involved in the activity.
Richard Garnett: And Bill, this is a question that implicates more than just religion. It kind of implicates our ideas about, you know, the kind of questions that courts are good at answering. So we could maybe segment this out to be, on the one hand, you could say how should regulators be acting? How should legislatures or executives or local officials be acting?
And then there’s really a separate question, I think. It’s related, but it is separate. How susceptible are these matters to judicial review? I think this was one of the things that we saw in both the California and the Nevada litigation, as well as some ones that took place earlier, is that different actors asked courts to evaluate particular regulations but often under procedural circumstances that were fluid with facts that might not have been as well-developed as we might like.
My own view is that Chief Justice Roberts is quite friendly to the freedom of religion but that he has a conception of the judicial role which led him to not want to have the Court kind of intervene in some of these disputes, particularly when, again, the facts on the ground are changing. And you can imagine judges being nervous about their ability to review or second guess questions about public health and the transmissibility of viruses and so-called droplets in various settings and all that. I wonder if this is an area where even though the regulations in question really do implicate a fundamental right that they’re not questions that are very well resolvable by courts. So I want to know what you think about that.
William Marshall: Yeah. Rick, I think you and I are agreeing a lot today. I’m sure we’ll have some disagreements coming. But the question of whether or not a casino and sitting down at a slot machine creates the same kinds of dangers as a public gathering is one that I think courts would be very reluctant to get involved in. And as you point out, what makes this even harder at this point is that the science and the understanding is not exactly stable either.
I do think governments have a legitimate reason to be overly cautious, particularly in light of the fact of how easily this disease appears to be spreading. But I agree that I think courts are very reluctant and should be very reluctant to second guess the health decisions.
Richard Garnett: And yet there might -- there could come a point that I think in some places this point has been reached where there does -- it appears quite obvious that there’s kind of an inexplicable disparate treatment between a religious related gathering and a nonreligious related gathering. And I suppose we might think that, even if we want courts to generally speaking step back a little bit, that it’s important now and again for a court to remind these regulators that, given that we have a Bill of Rights, they can’t just invoke pandemic and avoid all review. This is a temptation that comes up in a lot of constitutional law context, whether it’s having to do with border security or the conduct of war or what have you. We don’t want to say that the pandemic just flips the switch on the Bill of Rights.
William Marshall: Yeah. I agree with that, but I do think a great deal of deference is in question. And one has to worry about bureaucratic inertia, too, that, when you come up with a rule, you stick with it even when the science changes and whether or not the government will change that by itself, yeah. But I do think to start with we agreed anyway that a great deal of deference is warranted under these certain circumstances.
I don’t think there’s much chance -- there’s not much political gain to have of shutting down religious services. I think government’s very interested in facilitating religion. I don’t think that you have a question of animus here. So I think the idea of deference to the good faith interest of -- the good faith actions of the government is pretty warranted.
Richard Garnett: Well, you invoked -- when we first started talking, you made a reference to polarization and the distorting effects that it can have. I do suspect that, at least in some jurisdictions—and we can say this is right or wrong—but that a number of people were kind of taken aback by what appeared to be a double standard between the political protests following the death of George Floyd on the one hand and the strict limits on religious gatherings on the other. There were a few cases where you had sort of the same politician appearing to regard those two activities that do look pretty similar -- close gatherings of people who are raising their voices.
They were nonetheless treating those differently. And I can’t help thinking that that contributed to the kind of cynicism on the part of some citizens or to the, I guess as we call it, the polarization that we see in some of these debates.
William Marshall: No doubt. I was having a discussion with a very conservative friend of mine. And this is not a religious issue. But on polarization we kind of agree that if the President had said right from the beginning everybody should wear masks that half the people who are protesting against masks now would be right on. And a lot of the people who are in favor of masks right now would be protesting. Such is the nature of polarization that we live in right now.
Richard Garnett: Yeah. I suspect there’s something to that. Well, Nick, are we covering what you want to cover?
Nick Marr: Absolutely. We’ll draw out the question of equal treatment versus inequal treatment. Sometimes that could be a preferential. Sometimes it could be, like you said, a double standard or discriminatory. And we’ll point it to the issue of funding and religious entities during pandemic relief packages, different things like schools, churches. And if you could just speak a little bit to that issue and what’s the kind of treatment that has been going on, and what’s the kind of treatment that is either required by law or should be law? And then if you could touch on that aspect of what the competency of the courts should be reviewing these kinds of decisions as well?
Richard Garnett: Bill, you want to start off again?
William Marshall: No, I’ll let you start off on this one.
Richard Garnett: Okay. Sure. So my view as a general matter is that the Constitution permits governments to include religious institutions in general funding programs that have a secular purpose. So I don’t think it violates the separation of church and state for governments to provide scholarships that kids can take to parochial schools or to catholic universities. I think it’s fine for Medicare to reimburse treatment that happens at a religious hospital. I think it’s fine for a homeless shelter that’s run by a religious group to receive funding to help it do its work.
So in my view, a lot of these post-COVID programs that were designed to help institutions meet payroll -- or going forward we’re going to see some debates about how to help keep schools afloat -- I think it’s not only permissible but it’s good policy and perhaps even required to allow religious institutions and employers to participate on an equal basis in these programs. And that includes receiving funds. I think the Supreme Court’s recent decision out of Montana involving a tax credit program out there provides some support for this idea. And particularly if we’re thinking about how one of the policy aims in the wake of COVID and the shutdowns and the economic contraction was just, again, to help people stay employed, to help employers be able to make payroll and not lay people off, that’s clearly a secular purpose.
That’s not a religious goal. It’s a legitimate goal for the government to have. And it seems to me that to allow religious employers to keep paying their employees is every bit as important as allowing, say, a restaurant to be able to keep hiring its employees. So I don’t see any constitutional difficulty with allowing religious institutions to benefit. But apparently some newspaper writers and some commentators did think it was problematic. Bill, I don’t know what you think.
William Marshall: Well, I think the Espinoza case from Montana that you’re referring to -- I think is one of the more important Supreme Court decisions to come down in a long time in the area of funding. And for those of you on the call who are not familiar with it, the decision did exactly what Rick suggested. It suggested if you -- the question up until Espinoza for many years had been is it permissible for the government to provide funding to certain kinds of religious organizations engaged secular activity.
Espinoza raised the next question, which is can it be constitutionally required for the government to provide aid to religious organizations engaging in secular activity in the same way that they’re providing aid to similar secular organizations? And the Court in a 5-4 decision held yes. So I think the constitutional law on this has changed and certainly should effect the questions as they come up through the pandemic.
Richard Garnett: Bill, you and I have both worked on some of these school funding related questions over the years. For me, one of the issues that I kind of have my eye on as the pandemic unfolds and as our response develops is I’ve got a real worry that the kind of landscape or the ecology of society is going to be changed for the negative in this sense. I think that not just religious believers but the community generally is less well off if we don’t have a kind of broad and diverse array of institutions, including educational, medical, and social service institutions.
And if what’s waiting for us on the other side of COVID and the other side of the economic difficulties -- if what’s waiting for us over there is a civil ecology that is missing a whole lot of nonstate schools and nonprofit organizations, I think that’s really problematic in a democracy. And it’s something, again, that matters not just to religious believers but to everybody. It seems to me that policy makers have a secular reason that is a pro-democracy reason, a civil society reason for wanting to make sure that America’s nonprofit landscape, including the religious nonprofits, stays robust and stays diverse. And it might well mean that the only way we can do that is by using public funds to help these entities and their employees keep going.
Now, obviously there’s a lot of folks who would think, no, that’s crossing kind of a James Madison-type line, that that shouldn’t be the government’s concern, that that’s strictly a private matter. But I wonder if you think I’m right that kind of civil society and democracy really need a diverse nonprofit sector.
William Marshall: Well, I certainly agree that democracy needs a strong nonprofit sector. I also think democracy also needs a strong religious sector. I think that’s critically important for the stability of the society going forward. So yeah. The question on funding -- and you raise Madison.
But the question on funding is a couple of things. One is a question of what kind of divisions does that cause when religious groups get involved in fighting over funding or what kinds of funding takes place. It also deals with the old evangelical objection that there is nothing more corrupting to religion than receiving government aid, particularly when the religion may have to change the way that it structures activity in order to be eligible for the government aid. So I agree with you.
Generally, I do think there are some cautionary red flags that come up with what happens when you fund religion. The examples -- to use a pre-COVID example, when a hurricane hits a particular community, there’s been some question of how much can the FEMA funds go to religious organizations to allow them to rebuild. And I’m pretty sympathetic to the idea that that money should be available.
The really difficult question and gets us back into polarization again is what kind of conditions can be placed on that funding. If there is a particular organization that says that we’re going to provide certain types of drug treatment -- a religious organization -- we’re going to provide drug treatment to everybody except Baptists, can the government condition or refuse to provide that aid because there’s a certain kind of discrimination going on? And those are, I think, the next set of cases coming as to what happens with the types of conditions that can be imposed on the government funding.
Richard Garnett: Yeah. I hear you. I do worry about those conditions, and that’s a concern that’s been raised in Supreme Court cases, as you say, the whole time. It seems to me that the government should not—let’s put aside whether the Constitution would allow it—but the government should not impose conditions on cooperation or on funding that would run -- that would undermine the kind of care-ism and character of these institutions. Otherwise, what’s the point of caring about them in the first place?
But you’re certainly right that it’s been a theme in our church/state debates for a long time that for religious organizations to become too dependent on public support tends to undermine the vitality of those very institutions. And I certainly think we can see that in some other countries.
Nick Marr: So we’ll go to the third kind of general question now. So our last question is probably of the most relevance right now. There’s an issue about school re-openings and particularly primary schools and the public school versus private school issue, particularly in Maryland right now. I guess there’s going to be a court hearing next week about which government officials have what power to say whether private schools have to remain closed, even if they can adopt certain health measures.
So if you could speak a bit to the school opening issue and what should be the approach of the schools? What should be the approach of the government, and what generally is the law in this area? And kind of sticking with the equal versus unequal treatment.
William Marshall: Okay. I guess it’s my turn to go first, Rick, unless you want to jump in.
Richard Garnett: Go ahead.
William Marshall: A lot of this is a question of state law and which government entity has the power to impose regulations. And that’s going to vary significantly from state to state. Sometimes that power exists in the county. Sometimes it exists in the governor’s office. Sometimes it exists elsewhere. And so a lot of that is questions that are really outside the scope of our particular discussion here.
The other kind of question, though, is to what degree should government be able to regulate the openings of religious and private schools in the same way they’re going to regulate public schools. It seems to me that, again, this is a public health decision. The kids who go to religious schools and come back and infect their parents, if any of them get sick, their parents go out into the community, and other people get infected.
This disease, unfortunately, does not stay confined to the people who have taken risks. It gets spread relatively easily. So if a government believes that it’s in the health interest of its community to close the schools, including the public schools, then I think it’s totally legitimate that it can decide to close the private and religious schools in its jurisdiction as well.
Richard Garnett: You know, Bill, my wife, who also teaches law, as you know, she has a course on state and local government law, which is getting a lot more interesting this semester.
William Marshall: It sure is.
Richard Garnett: For some of the reasons you said. So I think what’s intriguing, though, are these -- this is how I understand the Maryland situation. My understanding could be incorrect -- is that if you have a situation where some nonstate schools decide that they do want to open and they want to open in a way that’s permissible under the relevant public health laws but then another local government entity—either the county or perhaps just a school board—decides that even if the opening would be permissible under state law, we’re going to insist that the nonstate schools close for as long as the public schools do.
To me, that looks a little hinky, to use a technical term. It looks to me like -- and I think we’re seeing this in some areas where teacher unions and public-school districts that don’t want to open, even if legally they could -- but they don’t want to for various reasons. But they also want to prevent their competitor schools from opening because they’re afraid, with some reason I think, that people would decide they’d rather go to an open private school than endure e-learning again, which in most places, especially for low income kids, didn’t work very well last spring. So those are the kind of cases that, to me, are the trickier ones.
I think, again, you’re right. If a state decides to exercise its police power and say meeting in school is not safe, so, therefore, there can be no meeting in school, that’s the same debate as we were having about religious gatherings and church services. It’s just a different kind of gathering. But these kind of competitions between public school districts and charter schools and religious schools and other nonstate schools, that, to me -- I’m not quite sure how constitutionally to resolve it all. But just as a matter of politics and public choice, it starts to look a little fishy to me.
William Marshall: Well, yeah. I mean, I do think that the state’s interest -- the government’s interest, whichever level of government that it is -- well, certainly the state, the county, the municipality, whatever, has to be acting with legitimate health reasons for the action that it’s taking and have health reason defenses as to why it’s taking a particular actions.
Richard Garnett: So I guess I wonder -- this takes us back to a point we were talking about earlier, the kinds of things that are susceptible to judicial resolution. I would think that questions about who has the power to decide whether schools may or may not open, that is a question that’s perfectly appropriate for courts to answer. They don’t have to get into the merits of the virology that’s being used.
All they have to do is sort of remind people who’s decision it is. And if in Maryland it turns out that a governor’s order that schools may open trumps a local county school board’s decision that they should close, it seems like it’s perfectly appropriate for a court to say so, right?
William Marshall: Yup. Totally agree.
Richard Garnett: Well, I’ve heard a lot of these Federalist Society Teleforum over the years, and I’m worried we’ve been agreeing a bit too much. Maybe we should discuss the merits of Duke versus Carolina basketball.
William Marshall: Well, there you go, although that’s really not a debatable proposition if you think about it. For those on the call that don’t know this, I teach at UNC. And Rick went to the unaccredited school seven miles north of here.
Richard Garnett: Indeed.
Nick Marr: Well, we’ll try to get to some disagreement. I’ll open it up for some audience questions now. We’ve already got a caller queued up, so we’ll go to our first question now.
Sean Gates: Hi, this is Sean Gates in California. I have a question going back to judicial review of the closure of churches. It’s obviously a big issue here in California. And it’s a two-fold question.
First is is the test simply whether the government treats churches in a like manner to similarly situated organizations or facilities? That’s question number one. And if the answer to that is no and there’s something more, whether it be a substantial interest or a compelling interest or whatever the test is, I guess I’d like to have you dig down a little bit more on that part of the test. And to give you a little bit more context, make it less theoretical, in California right now the state order closes churches on a county by county basis.
If your county is on the, quote, “watchlist” because of the rate of positive tests in your particular county, then churches are subject to much stricter regulations. They can’t meet inside, in person, etc. One of the San Francisco Bay Area health officers -- and just to give context, Bay Area health officers have been probably the most aggressive -- the first areas in California to impose lockdowns.
One of them called the recent system, this watchlist, arbitrary, constantly changing framework that is fundamentally flawed and said that the state has made the wrong diagnosis and is, therefore, prescribing the wrong treatment. It’s a bit like looking for your lost keys under a streetlight even though you lost them miles away. So if the test is more than simply light treatment, kind of I guess my next question is, well, okay, at what point and who’s burden is it to show that the state has the power to close down religious gatherings?
And I forgot. On the first question whether it’s just simply light treatment, doesn’t that simply -- it seems to me put little weight on the First Amendment at all? And I know that’s what Smith v. EEOC said. But it seems to me to just put the First Amendment kind of in the back row. So anyway, that was a long question. I apologize for that, but hopefully it will give us a little bit to debate about.
Richard Garnett: Good. So I think it’s back to me going first, Bill. But I’m glad the caller reminded us all that different jurisdictions in our country do have different substantive laws of religious liberties. So as a matter of the First Amendment’s Free Exercise Clause, we know that because of the Smith decision from about 30 years ago so long as a regulations is religiously neutral and generally applicable there isn’t a constitutional right to an exemption, even if there is a burden on religious practice. I do think here we have burdens on religious practices. But so long as the regulations are neutral and generally applicable, they can be applied to churches.
So that’s why the debate kind of gets forced into this channel where you’re asking about comparisons and whether or not there’s any discrimination. If you think back to the Masterpiece Cakeshop case from a few years ago, it was a reminder that even a regulations that appears to be neutral and generally applicable, if it’s being applied by officials who are motivated by antireligious hostility or animus, that application might well be unconstitutional. But putting aside the Free Exercise Clause, more than half the states in this country have, as a matter of state law, either statutory -- like a Religious Freedom Restoration Act type law, or they’ve interpreted their own state constitutions in a way that’s more protective of religious liberty than Smith is.
So in those states, even if we have what looks to be a rational and neutral public health regulation on gatherings, the question whether the government’s interest was sufficiently substantial and whether the regulation was appropriately tailored to meet the government’s interest, those would be questions that could be litigated. I haven’t seen—maybe Bill’s aware—many at least reported cases where courts have been evaluating some of these challenges under state law that’s more protective than Smith. But if one is in such a jurisdiction, I believe California, as a matter of state law, as a matter of its own constitution, does at least proport to require some kind of heightened scrutiny even of neutral laws.
Then it would be appropriate for courts to not only ask about equal treatment but to be more searching and to say, “Okay. Sure. The treatment’s equal, but we still have a burden on religious freedom. Is it warranted by compelling state interest?” Public health probably is a compelling state interest. But not just that. Is it appropriately tailored?
And you really could evaluated the factual basis for the regulation. You could insist -- this is going back to something Bill said a little earlier that any regulation that burden religion have to be revisited from time to time in light of new information. And of course, putting aside all these debates about religious liberty, there’s just a general constitutional requirement that there be a rational basis for regulations that affect constitutional interests.
So you could imagine there being a regulation of religious gatherings that was so arbitrary -- or a classification that was so arbitrary that it would flunk the rational basis test. But that’s pretty hard to do. Bill, does that sound right to you?
William Marshall: Yeah. And the caller said something about putting free exercise in the back row or putting the First Amendment into the back row. Whether the Smith case does that or not, I don’t know, as a way of characterization. But I think what’s really going on in these cases is public health is in the front row. And it’s the overall riding interest here.
Because if you go to a religious service or a protest or something, it’s not just yourself that you’re endangering. You’re endangering other people. And that’s really where the strength of the government’s interest comes in. It’s not protecting the individual against him or herself. It is protecting the community against a disease. And that’s the dynamic here.
And that, I think, has been lost on some of the protests that have taken place because people said, “Yeah. Why can’t I go out without a mask, or why can’t I do this? It’s my choice. It’s my life.” Except in this circumstances, we’re all interdependent, and we’re all vulnerable to each other. And that’s why I think the actual approach here of Smith makes sense. Is this an appropriate health regulation? And that’s the front row decision and the decision that guides us here.
Richard Garnett: Yeah. Maybe there’s a slight -- this isn’t so much a middle position but a friendly amendment. I do think that one of the things that the Free Exercise Clause should mean is that the significance of the religious freedom interest always needs to be in the front row. It doesn’t mean it’s going to trump every time. Again, it’s not absolute, as we know.
But we have to really be on guard that we don’t treat religious liberty as kind of a luxury good, as something that the government cares about when it’s really easy to do so and when it’s cost free to do so. Sometimes -- and, again, I’m generally of the view that most of these public health related measures do adequately respond to religious freedom concerns. But we do want to make sure that that doesn’t become kind of easy for regulators to treat the burdens on religious liberty as kind of insignificant or as an afterthought.
Nick Marr: Okay. We’ll go to our next question here, and we do have five questions in the queue. So I’ll ask callers to try to be concise -- our answers to try to be concise as well. Maybe some disagreement or we might end up like the Notre Dame/UNC basketball game last February.
William Marshall: Ouch. Yeah.
Caller 2: I’m concerned about the exercise of freedom of religion in that when people attend a church I would think that they would be able to opt out. I mean, you go assuming the risk of any of the church services. And if you don’t want to be a part of it, you have the opportunity to wear a mask or socially distance. But there’s a prohibition on the exercise of religion in that there’s a laying on of hands. There is a communal service. There is having communion and holding hands, things like that that are not being done because of the socially distancing and because of these requirements. Could you address that, please?
William Marshall: I think it’s my turn. Sure. I think that’s right. These regulations are interfering with the way that people want to exercise their religion. They’re interfering with the way that people want to exercise their freedom of speech. But there is an overriding public health concern. And again, if I opt out, if I’m careful all the time but other people are not, the virus spreads. So you cannot separate those people who are wanting to take the particular health risk, even if it’s for their deeply held religious conviction, from people who are engaging in other kind of activity which can lead to the spread of the disease.
Richard Garnett: Yeah. I don’t have anything to add to that.
Nick Marr: Okay. We’ll go to our next caller here.
Kevin: Hi, this is Kevin from Sacramento. I would take a little bit of issue with this notion of an overriding health issue. The COVID-19 is not the Black Death. This is not 1350 in which it killed a third of the population. This only kills 1 percent of the population. But why should courts defer to government public health decisions that restrict religious gatherings when BLM protests are not being restricted. And in conception, I guess my question is this. Conceptually as a starting point, shouldn’t the courts rather defer to the liberty interest in the Bill of Rights rather than the government?
Richard Garnett: Yeah. Well, I think we addressed it, but I know that we meant to -- the fact -- and I think the caller’s right to highlight this. There has been some double standard-ing going on, at least by some officials and some commentators and even some public health officials, frankly, who suggested that attending protests after George Floyd’s death was so important that that was justified, notwithstanding the public health risks. But churches had to remain closed.
So I think we’re all on the same page that deference can’t be total and that regulators shouldn’t be engaged in this kind of application of double standards and that religious gatherings presumptively -- I think that was the word the caller used -- presumptively do enjoy -- there is a First Amendment right for religious believers to gather for prayer, worship, liturgy and so on and that burdens on that right do have to be justified. I think the deference issue is -- that comes into play more when it has to do with evaluating the data or the medical information and so on that might be underlying the regulation in question. Courts, they can’t just rubber stamp government decisions, but they’re also just not very well situated to evaluate kind of fast-moving data and various sort of context-specific regulatory responses.
But I don’t want to leave the impression, at least for my own view, that the deference I’m talking about is kind of a rubber stamp or that the fundamental constitutional right at issue just sort of recedes into the background. The Supreme Court has decided, at least as a federal matter, that the right to religious liberty is -- again, it’s foundational. And it does limit the government’s police power. But the limit that emerges is a requirement that the government avoid discrimination, that it treat religiously motivated conduct at least as well as it treats other forms of conduct.
William Marshall: I don’t have anything to add to that, so we can just go to the next question.
Nick Marr: Okay. We’ll go to our next caller now.
Caller 4: Yes, good afternoon. Thanks very much. I appreciate you gentlemen’s discussion. I’m a little concerned if the entire scope of First Amendment, not only free exercise, but freedom of assembly and freedom of speech -- you know, if we can construed all of our constitutional rights as the worst treatment, that’s a pretty tepid understanding of the Bill of Rights. And I think I concur with the prior caller’s comment about the lethality of this particular infection.
But I guess there’s a couple of dimensions that it doesn’t seem have been explored, and I’d be interested in your reactions to this. The first one is just sort of the fundamental liberty interest at all. People have the right to do stupid things. And while a virus may spread, if I’m highly concerned or feel myself highly susceptible because of comorbidities or whatever, I can take a lot of measures to protect myself very effectively that are not going to require me to prevent my Muslim neighbor from going to a mosque or my Jewish neighbor from going to a synagogue or things like that. So I think that that liberty interest has not really seemed to make it into the conversation.
The second thing is we talk about free exercise, and I think we’ve kind of forgotten that the free exercise of religion is what brought us most of the hospitals that have been used to treat the patients in this pandemic. They’ve brought us most of the schools. Education and healthcare and so forth were religiously motivated impetuses until the rise of the modern nation-state sort of took them over.
And I think maybe allowing that free exercise to return to those institutions -- I would think the pandemic is a demonstration maybe of the folly of that. In fact, I couldn’t help wondering. It was kind of ironic early in the conversation you were commenting on these states that are opening activities for economic purposes but keeping churches closed. And I think that tells me something about what they worship.
William Garnett: I guess it’s my turn -- my response here. Well, let me begin with a sort of libertarian freedom part you’re talking about. I couldn’t agree with you more about the importance of our individual freedoms. It’s exactly right and why I think it’s healthy that people are not just sitting on whatever regulations there are. They’re making their voices known.
That said, this is a pandemic. And you can take all of the personal protection matters that you want. And if you engage in certain kinds of activities, you’re going to infect other people. I can’t say that I’ve done this research myself, so this is second hand. But one of my law professor colleagues has been looking at government and the rise of government. And partly, it’s been responsive to these kinds of health crises because the individual doesn’t really control her own destiny in the middle of a health crisis. She controls the destiny of people around her as well.
And that’s where the government needs to come in to be able to protect people from each other because the actions they take are not insular. And so I think that’s part of what’s going on here. With respect to the role that religion has had in founding the country and in developing hospitals and schools, of course it’s been critically important. I don’t think anybody is denying that.
Richard Garnett: One thing, I think both of the last two callers have indicated what I think is fair to say is just disagreement with the Supreme Court’s decision in Smith. And they’re in very good company. I think most academics who study law and religion think that the Smith rule, which requires only neutrality, is not protective enough.
I think that’s the majority view. I think the majority view would be even a legitimate public health measure that’s neutral, if it burdens religion, that it should be judicially scrutinized and that the fit -- the evidentiary basis of that regulation should be evaluated. And we might well see in a couple months the Supreme Court revisit Smith.
So I think both of the two previous callers are right to see that the current doctrine that the Supreme Court uses to interpret the Free Exercise Clause is controversial, and it does -- there’s no way around it. It does create the possibility of burdens being imposed on religious liberty. Now again, a lot of states have more demanding standards. And if a particular jurisdiction does have a more demanding standard, then it should be applied. And the mere fact that pandemics are scary and bad, that doesn’t mean that legal constraints just get switched off.
A second point, on the right to do stupid things, the libertarian point, again, that’s certainly true. I mean, I suppose there’s always the caveat that the right to do stupid things is at least constrained in part by harm that you might cause to someone else by doing your stupid thing. Not that anybody should care about my policy prescriptions because I don’t really have the relevant training, but I am inclined to agree with the caller’s suggestion that, given what we know about this particular virus and given the cost and benefits of all the various measures, that it might well be appropriate to tell some people who are particularly vulnerable that the onus is more on them to protect themselves and that we shouldn’t be imposing excessive costs, say, on kids who need to go to school.
Again, that’s a political debate. It’s a policy debate. It’s not one that public health officials alone should get to decide. It’s a moral question about cost and benefits. And then I agree entirely with the caller about the fact that the free exercise of religion gives us so many social institutions that provide incredible public benefits.
And that’s one of the reasons why Bill Marshall and I earlier were talking about how one of the things we need to be worried about in this pandemic, and particularly in the economic effects of the pandemic, is that we don’t lose these civil society institutions. Catholic schools are closing in droves, and our country will be worse off when they do close. And so it’s perfectly appropriate not just for Catholics but for citizens generally to worry about those closures in my view.
William Marshall: Rick mentioned the Smith decision, and he and I have been agreeing too much on this call. So I feel -- I mean, Justice Scalia is the person who wrote that decision. And the reason why he did was he said that, if you let every person’s religious views trump a neutral law, virtually anything can be described as a religious action. There are people living on the border right now who have religious objections to a wall against immigration being built upon their property. If you’re going to create a world in which people can get exemptions from neutral laws, Justice Scalia’s point was that you were making every person a law unto herself.
So there are actually reasons that support the Smith decision because religion -- again, you can have a religious belief in virtually anything. And if you go through the cases, there have been some very interesting cases out there that some of us might not agree with the religious precepts being involved. But you certainly aren’t going to ask the courts to second guess the legitimacy of somebody’s religious beliefs. So there are actually strong reasons that Justice Scalia identified in the Smith decision that support the particular approach that that case has taken. And I don’t think we should lose those either in our discussion.
Richard Garnett: Yeah. Fair enough.
Nick Marr: We’ll get one last question in here before we close out.
Caller 5: Hello. Thank you. So my question related to President Trump’s recent statement that churches were essential and should be reopened. But then shortly after that, Governor Newsom said that California’s churches must limit their indoor worship. So I was just wondering is President Trump’s statement just a mere optional standard for states to follow, or can states determine what they deem to be essential, which overrides the President’s concerns? I guess it’s a separation of powers issue, but I’m just curious to hear your thoughts on this tension.
Richard Garnett: One of the things this whole course of events has reminded us of is that, while our national government is very powerful and has certainly grown in the last 80, 90 years, we do have a federal system. And I know this goes back to Bill’s earlier point about politics and polarization. But one hears all the time that the President should have imposed a nationwide mask requirement, or the President should have issued a nationwide closure order.
But it’s not really clear that the President has that authority. The President has the authority to execute laws that are passed by Congress, and Congress has the power to enact laws that the Constitution gives it the power to enact. So to the caller’s point, the President can say—whether it’s this president or the previous one or the next one—can say things like, “Hey, I think churches are essential.” And, in my view, they are. And those regulators who are actually charged with regulatory responses can choose whether to put weight on it or not.
But in this particular context, a statement like that doesn’t have any legal force. It’s really just the President’s opinion. He might well be right in his opinion, but he only has the executive authority that the Constitution gives him. So I was kind of struck by when former Vice President Biden, I guess, made a statement the other day that, if he were elected, he would roll back all of the state’s orders that have opened. I’m not sure he can do that. I guess we’ll find out. Bill, I don’t know. What do you think?
William Marshall: Yeah. I take a little -- there’s some authority for presidential action. The president cannot order a governor to do something, which is what President Trump suggested he might be able to do early on. The interesting thing about presidential power—and this may be a good way to end thing—is people’s view on constitutional law changes. But you can usually tell the exact date that it changes with respect to presidential power. It’s always on January 20 when a new administration takes power.
What I tell my students is that when you’re taking a look at issues of presidential power, if you like the current President, I want you to imagine a president in there who you completely dislike and whether you would want that president to have that power. And if you dislike the President, I want you to imagine a president you do like in power and whether or not you would want to deny that president what the current -- the power that the current President is exercising. We seem to forget that a little bit when we’re talking about presidential power.
Richard Garnett: Well, I got to say, Bill, you’ve been a good example of that because I remember you and I having conversations on the previous administration where I was complaining about what I saw as some of President Obama’s executive overreach and his notion that if Congress doesn’t act that that gives him the authority to fill the void. You were consistent on this, so hats off to you.
William Marshall: Thank you. It’s always good to be in a conversation with you, Rick. For those of you on the call who don’t know Rick Garnett, he’s one of the most thoughtful academics in the business. And even when we disagree, it’s always a delight.
Nick Marr: Those sounded like great closing remarks, but I guess I’ll offer one more call for any closing remarks that either of you would like to offer.
Richard Garnett: Just as a way of wrapping up, I hate the phrase, but it’s still true -- that these times are complicated. And some of these cases are complicated, too. I just think that whatever happens to the Smith rule and whatever happens with the course of the pandemic that I hope that the fundamental right to religious freedom will always be seen precisely as fundamental and not as, again, a luxury good that’s in play only in good times. It might well be that at the present moment many of these closures are justified, but everybody, whether they’re religious or not, should be wanting those closure orders to be lifted as soon as it’s safe to do so.
William Marshall: I can’t add anything more to that.
Nick Marr: Great. On behalf of The Federalist Society, I want to thank you both for the benefit of your valuable time and expertise today. And to our audience, just a note, we welcome listener feedback on these Teleforum calls. You can email us at email@example.com. And also, be sure to check our website and your emails for information about upcoming Teleforum calls. We look forward to the next one. Thank you all for joining us this afternoon. Enjoy your weekend. We’re adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.