Drive-In Churches and the Constitution: Balancing the Religious Belief in Corporate Worship and Health Concerns Related to COVID-19

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Almost every religious institution closed its doors in mid-March in response to requests and then order from various levels of government in the name of slowing or stopping the spread of COVID-19.  Many religious institutions responded to the shutdowns with ingenuity by finding ways to meet and still remain in compliance with the CDC’s recommendations of physical distancing and limits on meeting sizes.  One of those solutions – drive-in services – became the target of growing government restrictions in parts of the country.  Matt Martens and Hiram Sasser will discuss what is a drive-in religious service and the constitutionality of prohibiting such services during the current pandemic.    


Matthew T. Martens, Partner, Wilmer Cutler Pickering Hale and Dorr LLP

Hiram Sasser, Executive General Counsel, First Liberty Institute


Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled, "Drive-In Churches and the Constitution: Balancing the Religious Belief in Corporate Worship and Health Concerns Related to COVID-19." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions opinion are those of the experts on today's call.


Today, we are fortunate to have with us Mr. Matthew T. Martens, a partner at Wilmer Cutler Pickering Hale and Dorr, and Mr. Hiram Sasser, the Executive General Counsel at the First Liberty Institute.


      After our speakers give their opening remarks today, we will go to audience Q&A. Thank you all for sharing with us. Mr. Sasser, the floor is yours.


Hiram Sasser:  Well, hey, thanks for having us. There's been a slew of cases that have taken place across the country involving various forms of church gatherings and religious gatherings. And one of those subsets has been the drive-in church service.


      A drive-in church service, just to give a little bit of an explanation, is that after the various shutdown orders took place banning, among other things, religious gatherings indoors, some religious institutions got very creative and decided that they were going to try to do something a little unique, which is to have a drive-in church service.


      I actually know of one pastor in Iowa, who, during their drive-in service for Easter morning, it was 19 degrees and a blizzard, and yet, he was outside preaching through a FM transmitter that would broadcast his message through to the radios in the cars parked in his parking lot.


      The first case that involved any kind -- well, the first successful challenge to any shutdown order, that we know, of was, therefore, a church drive-in service, and that was in Louisville, Kentucky. And Judge Justin Walker --


Greg Walsh:  Justin Walker.


Hiram Sasser:  -- issued the decision in that case, and it was a seminal decision because it was really the first decision against any kind of particular shutdown. Matt Martens at Wilmer Hale served as our lead counsel in that case. And what I'd like to do is turn it over to Matt and let him give you a little bit of description about that case and about some of the legal proceedings there. Go ahead, Matt.


Matthew T. Martens:  Thanks, Hiram. And it's a pleasure to be with you all today. These series of drive-in church matters is the latest in a long history of my opportunity to work with First Liberty, and Hiram in particular, and I would just say that if you're interested in religious liberty issues, if you're not working with First Liberty on these things, you guys are really missing out. They are a tremendous group of lawyers and strategists and just a pleasure to work with. And so I would highly commend them to you if you have issues or you want to work on these issues.


      Hiram came to me, as he often does, with a matter on the eve of a need to act. And so, in this instance, we were contacted during Holy Week, right before Easter, I think it was on Wednesday. And Hiram wanted to see if we can get involved with regard to the On Fire Christian Church in Louisville, who was looking to do drive-in services, in fact, had been doing drive-in services in the weeks leading up to Easter, including on Palm Sunday, but had become concerned because of statements by the mayor of Louisville about whether or not they'd be able to continue doing that, in particular on Easter.


      The mayor had made statements that drive-in service wouldn't be allowed on Easter, and he specifically invoked the governor's stay-at-home order, or safer-at-home order, that carried with it misdemeanor criminal penalties if one didn't comply. And so the church was rightly concerned that they could face some type of sanction if they went forward with their Easter service.


      And so, we wrote a letter to the mayor on that Thursday asking him to reconsider that position, and when we didn't hear back, we filed a TRO action on Friday, Good Friday, right before Easter. And our arguments were several fold.


      One, we made an argument under the Free Exercise of Religion Clause on the ground that the order at issue, both the governor's order that was being invoked by the mayor and the mayor's statements, were not neutral with respect to religion. Or, stated another way, that the law at issue was not generally applicable. There was not a general prohibition against cars accumulating in parking lots. There was only a prohibition against cars accumulating in parking lots for purposes of religious services.


      And so, under the Supreme Court's decision in Church of Lukumi Babalu Aye, that type of targeting of churches for a prescription that was not generally applicable is subject to strict scrutiny, thus requiring that there be a compelling interest to justify it, which we were not disputing here; the COVID-19 being a serious issue in our society, a very serious health issue.


      But at the same time, we argued that the remedy for that here was not narrowly tailored. It wasn't a prohibition on cars accumulating generally but only cars accumulating for religious purposes, and so there was not a tailoring of the remedy to the risk.


      We also made an argument under the First Amendment's Freedom of Assembly Clause that the Supreme Court has long recognized that the First Amendment Freedom of Assembly Clause includes religious assemblies in a case NAACP v. Alabama from 1958. And here, there was a prohibition on assembling.


      And, again, we recognized the compelling government interest, but didn't see the narrow tailoring, particularly when the church was willing to take precautions to comply with CDC social distancing guidelines, including people remaining in their cars during the entire time period, nobody leaving their car to go to the restroom, no passing of an offering plate, people keeping their windows rolled up, a limited number of people outside their cars for purposes of operating the camera and the sound system and the preacher.


      And so we argued that the government's approach here violated the Freedom of Assembly Clause. And then, we also raised state law claims under the Kentucky Constitution that mirrored those protections under the U.S. Constitution, and then, also a claim under Kentucky's little RFRA, Religious Freedom Restoration Act, that provided a protection along the lines of the federal Religious Freedom Restoration Act, namely reinstating the compelling interest and narrow tailoring test that existed prior to Employment Division v. Smith.


      So those were the claims we brought, and the judge issued an opinion on Saturday in that case, right before Easter Sunday, granting our TRO, allowing the church to go forward with its drive-in church service on Easter Sunday. And then, ultimately, through, I think, effective cooperation and really a desire by the mayor to try to reach an accommodation with the church, we were able to successfully negotiate a resolution that allowed them to hold drive-in church going forward.


Hiram Sasser:  And, Matt, and everybody, what I find fascinating about this is that this was, obviously, the drive-in church service, but it's also leading into this next phase of the in-person church services. And, Matt, you've always been very helpful to join in the fight on last-minute basis.


      I think we ought to tell them what's going to happen in about 30 minutes after this phone call.


Matthew T. Martens:  Yeah, so the next phase in the litigation, as more data has become available, as we've learned more about the disease, and as we've seen where it's accumulated, we've had some churches in some more rural areas—where there has not been a prevalence of COVID—seeking to hold church services in circumstances where they have relatively small congregations but some large auditoriums, and so they can segregate people by families. So they may be in the same room but well spread out from one another.


      And so we have brought a lawsuit this week on behalf of a church in a rural county in Kentucky seeking a TRO to allow that type of church service. There are only 40 instances of COVID that have been diagnosed in a county of 54,000 people, and no deaths in that county, thankfully. And so that church is looking to return to the days of in-person church services in their sanctuary but taking a number of precautions.


      And we have a hearing this afternoon, actually at 3:30, a telephonic TRO hearing, again, in Kentucky this time, in a town called Nicholasville near Lexington.


Hiram Sasser:  I think it's important for everybody to know a little bit about some of the basic legal framework leading up to these things. When it comes to Free Exercise jurisprudence, I think most people are aware that Free Exercise jurisprudence changed significantly in 1990 with Employment Division v. Smith. And the holding of that case was that a law that is neutral and generally applicable would be ordinarily upheld and would not be subject to strict scrutiny.


      Just a few years later, the Church of Lukumi Babalu Aye v. City of Hialeah was decided in 1993. And, interestingly, the district court decision was cited in Employment Division v. Smith as an example of these wild -- Justice Scalia was pointing out sort of these aggressive cases that, obviously, the religious adherence should lose.


But, nevertheless, in 1993, I guess -- I would've thought, if I was representing the City of Hialeah, that I've got Justice Scalia's vote in my pocket. But it did not, and in 1993, the Court said that, "Well, if you are targeting religious activity, particular religious activity, in a way that you're not similarly situated secular activity, then the law would face strict scrutiny."


      And in many of these regulations that are shutting down churches and the like, they're falling -- the reason strict scrutiny is applying is because they're selective in the banning of the various sizes and types of gatherings. And there are various comparators that are out there, secular comparators, and also sometimes religious comparators.


Because, again, like in Lukumi, one of the comparators was a kosher exception. Or, for example, in Gonzalez v. O Centro—although it's a federal Religious Freedom Restoration Act case—in the strict scrutiny analysis, the comparator was peyote use, which for the claimant, was bringing a claim about wanting to drink a hallucinogenic tea, and they compared and said, "Well, you are allowing religious peyote use."


      So when you have these exceptions that are built into the various orders, it's those exceptions that end up triggering strict scrutiny and, in fact, drive the strict scrutiny analysis all the way through.


      But I think that we've basically outlined the issues and the law and some of the emerging things that are going on. This probably would be a good time to open the floor to questions that people might have about either these types of cases in terms of the drive-in services cases or the emerging cases of the in-person service type of environment.


Greg Walsh:  Okay, let's go to audience questions. We will now go to our first question. Caller from area code 417, you're on the line.


Caller 1:  Yes, my question is on the subject of mootness because of the COVID quarantines, the restrictions coming down. Are we litigating these things perhaps unnecessarily because by the time they get in front of the court, the subject will be moot?


Hiram Sasser:  Well, I think it's a good question. If the question is whether or not they will become moot in a general sense going forward before, perhaps, the U.S. Supreme Court could evaluate the cases, then the answer is that that may very well be true. In other words, this issue may not persist long enough because most of the cases are against state-enacted shutdowns, and various other rules, and so the states have Eleventh Amendment immunity.


      And so all the cases that are, for the most part, being brought are for injunctive relief only. And so it is possible that, as the cases migrate through the system, that, eventually, they could become moot before, perhaps, Supreme Court review.


But, as we've seen with case after case—whether there was a TRO that was entered in Kansas or the one that was entered in Louisville, Kentucky, where the Sixth Circuit opinion that came out regarding a case in Kentucky—that the immediate relief that is being sought to immediately begin to have some measure of religious activities that were otherwise prohibited not only are very real and timely but are able to be adjudicated and relief afforded prior to the government shutdown.


And we have to remember that the Supreme Court said in Elrod v. Burns that the loss of constitutional freedoms, even for a moment, is, per se, irreparable harm. And so it's important to vindicate constitutional rights, even if it would only be for a day. But, as we've seen, it's been for weeks and may be, potentially, months.


Again, we just had the governor of Illinois issue a statement saying that almost until they have -- no one else is sick that they're not going to allow meetings over 50. I don't know when that's ever going to happen. So maybe, perhaps, the Illinois cases might have enough legs to go all the way to the Supreme Court.


But I think you're right. It's probably not going to go to the Supreme Court, but there's a lot of immediate relief that can be had.


Caller 1:  Thank you.


Hiram Sasser:  Matt, do you have anything you wanted to add to that?


Matthew T. Martens:  No, I think you're right. It's the two points: that, one, the loss of even one Sunday is a loss of a religious liberty that can't be recovered. And so, it is not yet moot because certainly some states are prohibiting services even now, this Sunday. And then, bigger picture, I think there's an open question about whether states like Illinois intend on prohibiting church services for, potentially, years based on the recent statements that were made about not allowing it until there's a vaccine. So I think that it's anything but moot.


Greg Walsh:  Thank you. We'll now go to our next caller. Area code 305, you're on the line.


Caller 2:  Hello. Can you hear me?


Greg Walsh: Yes, sir.


Caller 2:  Okay. I was wondering, Matt, if you pursued the religious speech angle? And I believe that there are a lot of arguments that could be made to buttress the Free Exercise argument. Going back to the Scalia decision in Smith that there should be a hybrid.


Hiram Sasser:  Well, yeah. To start off with about hybrid rights. I teach a religious liberty course at the University of Texas at Austin, and I always tell my students that hybrid rights exist in two places: they exist in law review articles and on law school exams. But, in practice, I've never been able to find a case where you were to go to the court and, essentially -- and let me break down what hybrid rights are in case people don't know what we're talking about.


      A hybrid rights claim is a claim that's mentioned in Employment Division v. Smith as theoretically available as sort of an exception to the Smith framework, such that if you had a Free Exercise claim plus some other constitutional right claim, that, somehow, they would merge together to invoke strict scrutiny.


But what I've never seen is a case in which you are able to bring, for example, a claim that otherwise would not be entitled to strict scrutiny and a Free Exercise claim, and that, somehow, the Free Exercise claim married to the other constitutional claim elevated the constitutional analysis to strict scrutiny beyond what would've otherwise been available to either one standing alone, which is how I understood the reference to hybrid rights in Employment Division v. Smith.


      In other words, if you have a Freedom of Assembly claim and strict scrutiny is going to apply, it applies because you have a Freedom of Assembly claim, not because you have a Freedom of Assembly claim and happen to have a Free Exercise claim.


      For instance, a lot of post-Smith litigation was based on the Free Speech Clause. And, for the most part, the analysis was done completely within the Free Speech Doctrine. And Free Exercise, while may have been pled in the complaint, was sort of left on the back burner in terms of the analysis.


      Now, it is true, though, that the Freedom of Assembly claims do come into play, and those are claims that we actually bring. As a matter of fact, Matt, I think you might want to pick up the ball from here and kind of explain a little bit about kind of the narrow tailoring arguments that we're making in these cases along the lines of the Freedom of Assembly claim.


Matthew T. Martens:  Right. And we are, as part of our Freedom of Assembly claim, we are arguing, under the compelling interest test, that they are not narrowly tailoring the prohibition to the identified harm. So it's the traditional compelling interest, which we're not disputing, but then arguing the narrow tailoring that there are less restrictive alternatives


And, here, comparing to the numerous other contexts in which the government is allowing significant gatherings of people, significant numbers of people in the same building, or, as the case may be, in the church parking lot, in other parking lots.


      And so the argument here is that they are not -- the stated need to prevent people from accumulating in a parking lot because they could transmit this to one another is only being applied in the context of church services. Certainly, there's a speech element to that, but there's also plainly a religious element to that, to the extent that religious gatherings are being singled out. And so we focused our discussion, our litigation strategy, on the singling out of religious gatherings.


      Similarly, now, as we're starting to bring lawsuits in the in-person, in-church sanctuary context, again, the government isn't prohibiting more than 50 people being in any given building or in any given room or more than 10 or whatever line they're drawing; they're only prohibiting that in the case of church gatherings.


And, again, it's that type of singling out. Rather than a law that generally prohibits any instance in which more than 50 people are in a room, they've said you can't have more than 10 or 50, or whatever the case may be—in some instances none, a total prohibition—of people in a room at one time for purposes of a church service.


      And so we focused our strategy on that targeting of religion. Or, stated another way, under Church of Lukumi Babalu Aye, the absence of a law of general applicability.


Greg Walsh:  We will now go to our next caller. Area code 502, you're on the line.


Caller 3:  Thank you. Thanks for the presentation. Two quick questions, if you don't mind.


      Are these emergency TRO and PI hearings being made available to the public and press, as they would be in the absence of COVID-19?


      And the second question is all of these cases seem to be filed in federal court rather than state court, and why is that?


Matthew T. Martens:  So the answer on the first question is that, yes, they are available, at least the first one we did was. The judge provided a dial-in that the public could dial into, and there were, as I recall, dozens and dozens of people who dialed in, including several law professors, who were live Tweeting their analysis of the argument as it was occurring.


So there has been public accessibility to these, and the judge set it up so that there was a different dial-in code for the lawyers as opposed to the public at large so that the public could be muted so that there wouldn't be any court disruption. So, yes, there has been public access even though the hearings have been telephonic.


      And as to your second question as to why they're brought in federal court, generally they've been brought in federal court because we've been advancing the First Amendment arguments under the U.S. Constitution, and so there is federal court jurisdiction to hear those, which, I think, helps us because, obviously, there's a long history of the independence of the federal judiciary as appointed for life and not being elected. And so we have taken advantage of that option that the Constitution provides us to bring the cases in federal court.


Caller 4:  Yeah, just a question. I live in Austin. Thanks so much for doing this. My question's about the approach to this, and here's a concern. There's no doubt that post-1980s onward, as the church started to show up in the courtroom and actually press for equal treatment in the public square, that we've made progress. What I'm reluctant to do is bring -- it seems we should be reluctant or reticent to make our first tip of the spear argument a religious freedom one, and here's why.


      In cases that are just religion as religion, you wind up going, it seems to me, in front of judges who do not put the same value on transcendence. And so, when you have one of the hybrid rights cases that was talked about of like Freedom of Assembly or Freedom of Speech, you more often than not see judges who would probably [inaudible 00:25:43] for religion because they have a, I guess, a naturalist world view; there's no divine, there's no other. They don't put any value in that.


And same thing when you look at cases like pro-life cases that deal with the transcendent value of life. If they're a naturalist, kind of like a Darwinian evolutionist—they think there's nothing beyond the grave—then life, to them, doesn't have some connection to the divine.


It would seem to me the best step forward would be advance as much as possible the non-religious claims and use the religion one alongside, but hold it back until you absolutely need it because if it gets handled there by a judge who does not ascribe transcendent value to religious belief, it is not going to be given a fair hearing.


      And so we wind up being like 5-4 decisions and we think woo-hoo. But if we were to go on a speech case or an assembly case, we get like a 9-0 decision. It would seem to me that we should advance those non-secular claims first and save religion for last. I'd like to get your point of view on that.


Hiram Sasser:  Well, this is Hiram. I understand what you're saying. My pushback would be that, for example, in Gonzalez v. O Centro, although it was a federal Religious Freedom Restoration Act case that involved the mandatory statutory application of strict scrutiny, that was a unanimous decision. I don't believe Justice Alito participated because he was new on the bench, but it was unanimous in its analysis and, importantly, in its formulation of how strict scrutiny operates in a way that's very, very deferential to religious liberty.


      For example, in that case, the formulation of the question for whether or not the government has a compelling interest is not, hey, does the government have a compelling interest in its general scheme of what's going on? In that case, it was does the government have a compelling interest in prohibiting people from using illegal drugs, Schedule I substances? And the answer to that, well, of course they do, right?


But that's not the question that the Supreme Court—a unanimous Supreme Court—established. The actual question that the Court is supposed to ask is what if the government's compelling interest and not providing an exception to this particular claimant?


      And so I do believe that you've had a number of Supreme Court decisions, whether it was Trinity Lutheran that had, I think it was 7-2, but don't hold me to that; Hosanna-Tabor, which was a unanimous in terms of the voting, and that's what I'm talking about—not necessarily joining the same opinion, but the voting. And then, of course, you have Gonzalez v. O Centro. So I think that the formulation for how we address these questions, once we get over some initial threshold questions, has been fairly uniform and widely accepted.


      But I do take your point, which is—and it is a point that was the, I guess what I would call, the primary emphasis of religious liberty litigation, especially in the 1990s and the early 2000s—which was a focus on non-Free Exercise claims.


But I think what we've seen as a migration towards the religious claims as a result of a number of things, but including some developments at the Supreme Court, post-Employment Division v. Smith, like with Church of Lukumi Babalu Aye v. City of Hialeah, with Trinity Lutheran, with Hosanna-Tabor, with, even though it's a RFRA case, the discussion of the analysis in Gonzalez v. O Centro.


      And so I think we're going to start seeing a further entrenchment of bringing the Free Exercise claims for religious activity because that was the clause that was meant to protect that religious activity.


Matthew T. Martens:  Yeah, this is Matt. I would sort of just add two thoughts. One, we've been doing -- my firm and I have been doing religious liberty litigation, advancing Free Exercise claims with Hiram and his folks at First Liberty. I've been doing it with them for six years, and we've never lost a case. So I have not yet seen an inability to press Free Exercise claims effectively in the courts.


      And if I did have concern about that -- my second point would be, to me, that would be all the more reason to press them rather than just revert to First Amendment/Free Speech claims. I don't want to see the Free Exercise Clause go the way of the dodo bird. I want to continue to press it, even if I believed it was more challenging to do so, so that we could continue to develop the law and develop a vibrant body of case law ensuring the free exercise of religion for future generations.


Hiram Sasser:  Well, something else I think that's important that we talk about and explore is that one of the Supreme Court decisions that a lot of people have pointed to is Jacobson v. Massachusetts. It's a 1905 Supreme Court decision dealing with mandatory vaccination for small pox.


And the Supreme Court had a lot of things to stay about a -- and, by the way, this was a statute that was passed in Massachusetts. It was not the state-level executive orders, which are somewhat unprecedented in terms of the scope and scale of what we're seeing now.


But, in that case, the Supreme Court said that certain types of objections, whether it be psychological or religious objections and those sorts of things, would not be the type of objections that would overcome the states' interest in preserving the health and safety of the population by forcing small pox vaccinations.


It had some language in there about if you had -- they're not saying if you had a health-based reason why you could not receive that -- you were in some sort of fragile state or something like that, that their opinion was not to be taken as that that would not be a valid reason to raise. But what's gone on is that the governmental entities that have passed these and raised these executive orders have taken Jacobson as sort of this license.


And, like the argument that was presented in our Louisville case with On Fire Christian Church v. The City of Louisville that Judge Walker presided over, the other side made the sort of broad argument that Jacobson, essentially, means that the Constitution is on vacation during a pandemic, and that the government sort of has a free hand to suspend constitutional rights in whatever means that they so choose. And, certainly, the admonition that the Constitution is not a death pact is relevant, but it is not dispositive of all constitutional claims.


The Constitution is indeed not on vacation, as the Sixth Circuit pointed out in the Maryville emergency appeal, that Jacobson is there—and it's not that it's not good law—but it doesn't stand for this broad proposition that the government can kind of just do whatever it wants to do under the guise of well, it's a pandemic.


And, in fact, that there are certain limitations. But whatever those limitations are, we haven't really even fully scratched the surface when it comes to the religious assembly cases, whether it be the drive-in service or the in-person service, because the various orders around the country are not doing complete shutdowns of everything whereby -- the equivalent of what happened in Wuhan where they welded the doors shut of everybody so that they could not exit at all. In fact, we're allowing all kinds of activities.


Those other activities that are allowed can serve, to varying degrees, as comparators to the proscribed religious activities. And so nothing like that was presented in Jacobson whereby there would've been -- imagine, in Jacobson, there would've been a whole slew of a number of exceptions.


Of course, Jacobson preexisted our strict scrutiny jurisprudence to be sure, but even still, taking it on its face, we're not talking about and asking for relief to engage in activity that's not equivalently being asked and allowed to be engaged in from a secular standpoint.


Greg Walsh:  Thank you. Let's now go to our next question. We have three or four in the queue.


Caller 5:  I guess more towards what you were saying as far as the overreaching executive where Justice Bradley in Wisconsin had said that the people of Wisconsin had no intention of giving one unelected official so much power to force six million people to stay home.


So expanding, I guess, the religious liberties issue to a more broad issue of controlling just out-of-control pandemic orders, do you see any litigation or any case law or anything that can be used to go against an executive that just really doesn't care about constitutional orders?


It doesn't seem so much that the federal government is doing it, but it's more on the local basis where you're seeing a lot of these governors just completely outstepping anything pushing a pandemic button. And, in New York, we have a unique case where the courts themselves were closed, and they would only take emergency applications.


Do you see any way of getting an emergency application in to just lift the order? Outside of the compelling interest test, is there anything that would force that "compelling interest" into a court to say that this has no scientific basis and the fact that you're able to lockdown everyone in a state is beyond the compelling interest test without pretty much any level of scientific evidence. Is there any way to get that scientific evidence and in a justiciability case where the court can decide whether that scientific evidence actually carries the weight of a lockdown? And I'll take the answer offline.


Matthew T. Martens:  Well, I think that the question you're posing actually raises a more fundamental issue. One, frankly, that The Federalist Society has been at the forefront over the years, which is what is the proper role of courts? And what is the proper role of the elected branches?


      Ultimately, for any of the decisions made by -- whether it's the governors or legislatures supporting the governors with regard to these stay-at-home orders, there's political accountability for elected officials who make judgments that the people disagree with, and that'll be resolved in some states this November, or in my home state, next November.


      At the same time, some things aren't left to the elected branches. Ultimately, the courts have a final say, and religious liberty is where we have been focusing our litigation. We have not been focusing our litigation on a broad-based assault on the rights of the political branches to exercise the police power of the state and to be held politically accountable for that. We've been focused more on the singling out of religious activities to bear a burden that other activities are not bearing in these unique times.


Hiram Sasser:  The only thing I'll add is that I think that what you'll see, in at least the religious liberty litigation context, is that there are no cases that are challenging the epidemiology and those justifications. Simply, there are cases where there are identifiable secular exceptions, and yet, the religious activity is being prohibited. And it's in those scenarios in which, at least for -- I can't speak for all the religious liberty litigation that's going on, but for most of the religious liberty litigation that I've seen going on by either First Liberty Institute or other organizations, they have focused in on avoiding those fights over the science and simply using the traditional secular comparators.


Matthew T. Martens:  Yeah, and Hiram makes an important point. We have not been challenging—and we wouldn't challenge—the seriousness of the disease; the need for the government to act. That has not been the focus of our litigation. The focus of our litigation was the degree to which there has been disparate treatment of religious activities. We think that that is the judgment that the Constitution doesn't allow; to place a unique burden on religious activities that is not placed on similar or analogous secular activities.


      And in instances where states or cities have done that—singled out religious activities for unique burdens not borne by other analogous activities—we have brought lawsuits to vindicate that principle.


Greg Walsh:  Caller from area code 562, you are on the air.


Bill Brown:  Good afternoon. This is Bill Brown from Orange County. A question I had was during confirmation hearing this week before the Senate Judiciary Committee, several of the Democratic senators criticized Judge Walker for not having heard from the defendants before he granted the TRO in the case, and I just wanted to see if either Matt or Hiram could comment on whether that's a fair criticism of Judge Walker.


Hiram Sasser:  Well, I think it's a very unfair criticism for a number of reasons. First, we sent a letter to the mayor on Thursday asking for an answer by the end of the day as to whether or not they would allow a drive-in church service, and the mayor refused to answer. Senator McConnell sent him a letter. He didn't answer Senator McConnell.


We, then, had several communications with them through our filings, sending them to them, talking to them on the telephone, attempting to make sure that they had all the information, and that we could receive some sort of response. They, for whatever reason, chose not to file any sort of response or even a notice to the court that they intended to file a response.


So I think that, given the delay in receiving the information from the mayor and no correspondence from them, forcing us to, obviously, work through the night to get on file on Friday, and then having all of that time and the correspondences that went back and forth all the way through Saturday morning and into Saturday, without ever filing any kind of notice with the court that they intended to file a response, I -- with Sunday approaching, it was Easter Sunday coming, the lack of a response was unusual but, ultimately, in Louisville's lap.


Matthew T. Martens:  Yeah, I would just add onto that: It was publicly recorded that we filed a lawsuit, and we were in contact with the mayor's counsel on Friday, even though the law didn't require us to be, to give them notice that we had filed. And the electronic filing system of the federal courts stood open on Friday night and Saturday morning, had the mayor wished to file anything. He chose not to do so, but that's his choice. That's not the judge's fault.


Greg Walsh:  Okay, we'll now go to our next caller.


Matthew:  Hi. There's actually two people here listening. I'm Matthew and my wife is Bridgette. We actually went to the Fire that Easter Sunday, so we're very thankful for the work here.


Bridgette:  Thank you very much. It was a delightful event.


Matthew:  Our question was—a question we had at the time—which was the way that these -- the case depended so much on things like liquor stores being open. What stops governments from just making no exceptions so the laws are ridiculously stupid, but they're not discriminatory? [inaudible 00:44:49].


Bridgette:  Yeah, so I guess what we're trying to say is the church was allowed to open, in part, because of things like drive-through liquor stores were allowed, so it was clearly discriminating against churches, or seemed to be. But this problem also came up in the Hobby Lobby case where, essentially, if the government is completely totalitarian and repressive, it's not discriminating against religion. So I think Matthew's question was is this why Employment Division v. Smith is just kind of ridiculous, or your thoughts on all of this.


Matthew:  Yeah.


Matthew T. Martens:  Sure. I'd be happy to start out there and Hiram can jump in. So I think that, certainly, the Employment Division v. Smith decision was a setback for religious liberty. It was a change of what had been decades, at least decades, if not nearly a century, of law in the religious freedom context.


      And so it has created a difficulty in advancing religious liberty claims to some degree. I would note that the Supreme Court currently has a case before it—and Hiram can correct me if I'm wrong in this—but I believe they granted cert to consider the question of whether Employment Division v. Smith should be overruled.


      But you are correct that, under Employment Division v. Smith, to the extent that there are broad-based rules and general applicability with no exceptions, that gives the government more leeway when it comes to religious liberty claims.


      On the other hand, there aren't a lot of laws that don't have exceptions that implicate religion. And so, to the extent that they start making exceptions—and there are often exceptions to laws because very few things can be addressed without exceptions—and once they start making exceptions, it's no longer a law of general applicability. And so, well, we go back to the compelling interest standard that existed prior to Employment Division v. Smith.


      And so, while Employment Division v. Smith was a bit of a setback in religious liberty litigation, at least my experience has been it has not been insurmountable because most laws have exceptions, and then, once they have exceptions, they can't fail to make an exception for religion absent a compelling interest and narrow tailoring.


      I don't know if, Hiram, you have anything else on that?


Hiram Sasser:  Yeah. What I'll add is that, oftentimes, in litigation, a tactic for the government to -- whether it be a Free Speech case or religious liberty case, is for the government to, what I would refer to, is—it's analogous to the scenario that you're describing—is close the forum.


Like, for example, I've got a case going on right now against the United States Post Office. They allow you to put anything you want on a custom stamp. You can make custom stamps. You can order your family picture on a custom stamp. But if it's anything that's religious, such as like the stamps that they themselves make, then you're now allowed to do that as a custom stamp.


      And so, in response to our litigation, the post office is proposing a regulation to not do custom stamps at all. And so that can be a significant issue. There are two responses to that. Sometimes, there are other constitutional claims that allow strict scrutiny to be invoked, regardless of the fact that they have no exceptions.


      And then, secondly, is that the more totalitarian and extreme the order is, that -- part of The Federalist Society is that it's not courts that have to micromanage all this stuff. There's political pressure involved, too. And so, the more extreme it is, the more political pressure and more alliances that can be formed in order to overturn the law in the first place.


      The reason, many times, these laws have exceptions may not necessarily be because it was the most logical thing or because "science says so". It could just be their lobby was really good for that industry. And so extreme totalitarianism has the same effect as all kinds of other extreme persecution. The more extreme it gets, the less the people will politically tolerate it.


Greg Walsh:  Thank you. Let's go to our next caller.


Caller 8:  Hello. This is my second crack at the apple here. I'm just trying to convince you to take a religious speech argument, I suppose, and to couple it with your Free Exercise argument in particular. If you made the free religious speech argument, you could avail yourself of the prior restraints protection against the government and require them to -- they have to have a judicial determination. And I'll leave it at that.


Hiram Sasser:  Yeah. Prior restraint arguments in religious liberty cases, in general, or prior restraint speech arguments, are very, very effective for a variety of reasons, not the least of which -- because even though, in some circumstances, you may only be able to avail yourself of—like United States v. O'Brien intermediate scrutiny analysis—even the cases interpreting that say that you have to have what's called preenactment evidence that was considered by the actual government entity enacting the regulation in order to be able to justify that prior restraint on speech.  So those are really effective arguments in various contexts.


      And don't read my comments to suggest -- because we have, in fact, in our cases Free Speech claims as well. The only comment that, I think, we were making is that the Free Exercise Clause was meant to actually protect religious liberty. That's what this religious exercise is. And we're trying to, in some sense, restore the meaning of the word "exercise".


      In 1990, after the Employment Division v. Smith, the word "exercise" became synonymous with belief. And I don't know how to square that with the fact that I've always understood—and I think our Founders understood—the word exercise meant doing things, not believing things. You can't think about getting in shape; you have to exercise. You have to do things.


And I think it's a worthy effort to restore the meaning of the Free Exercise Clause, especially during a time when religious liberty is under a significant amount of government pressure that kind of came out of nowhere, in a sense. We weren't anticipating this type of scenario happening just even a few months ago.


Greg Walsh:  Okay, let's go to another question.


Caller 9:  I was just wondering -- you talked a bit about the Free Exercise implications of exceptions being granted to certain organizations and not religious organizations. I was wondering what the ramifications of things like we see in New York City, where it seems like there aren't very many exemptions being given, but we hear rhetoric from politicians that indicates that, for law enforcement purposes, they're looking more closely at certain religious groups.


We saw that with the mayor sort of indicating that he was paying pretty close attention to orthodox Jews and Jewish religious organizations with regards to whether they were in line with the practice. Now, does that carry implications for any of this, or am I thinking outside the scope for that?


Matthew T. Martens:  No, I think it does. I think that a law can -- you can get strict scrutiny, I think, in two different ways. One, if the law is written in a way that creates exceptions but doesn't create a religious exception, then it's not a law of general applicability and thus subject to the strict scrutiny standard. I think, similarly, the case law suggests, including with Church of Lukumi Babalu Aye, that if there is intentional targeting of religious activity, even if a statute is written neutrally, but it's being applied in a way to intentionally target religious activity, you can likewise get to strict scrutiny in that manner. And so I think you are thinking about it correctly.


Greg Walsh:  Okay, let's go to our final caller.


Caller 10:  Thank you. Speaking about the On Fire case itself, is the agreed judgment that you obtained in that case sufficiently broad to effectively protect all the other churches and religious bodies in that district, or would each one of them essentially have to bring their own case?


Hiram Sasser:  Well, we did not seek a class certification or otherwise seek a, what I would call, a facial invalidation. As such, we presented our case as applied and, in fact, the order would only apply to On Fire.


But, as with all types of cases, once the precedent has essentially been established—and I don't mean in the sense of binding precedent that Judge Walker's TRO opinion would be binding on his fellow district court judges—but to the extent that once a judge has ruled on one of these issues, on almost all circumstances, the government will obey it as if it is an injunction that applies to their actions vis-à-vis all other religious institutions.


Greg Walsh:  Hiram, Matt, do you want to say anything in conclusion before we close up today?


Hiram Sasser:  Well, I want to say something just about Matt and WilmerHale. I mean, the fact that those folks, in the middle of this pandemic, are willing to work through the night on religious liberty cases, I think, are an inspiration to a lot of private practicing lawyers. And we work with a lot of firms on a wide variety of cases, and they're all just a great inspiration to people who want to get involved in these types of cases.


I think we have a special duty as lawyers to be the first guardians of the Constitution. We have a system of checks and balances in place that are important. We have the ability to go to court to challenge the actions of various executive or legislative bodies, and that's how we keep peace. It's how we keep order. And I think these are important functions and it's encouraging to see folks like Matt Martens who step up to the plate to participate in that.


Matthew T. Martens:  Yeah, and I would just say, like I said at the beginning, that you should be thankful for groups like First Liberty who are out there every day doing this. I have the pleasure and the opportunity to work with them from time to time, but they're out there fighting the fight around the country day in and day out, and we should be grateful for them.


And, Hiram would never ask for this, but they're worthy of your support, and you should consider that. Whether that's helping as a lawyer or helping financially, I think they're a worthy organization.


I'd also say that I couldn't do any of what we've been able to do with First Liberty without some really incredible associates at the firm who jump into these matters and, in particular, one of my colleagues, Kevin Gallagher, has been a mainstay in the cases that I've been working with First Liberty on for the last six years. And they really carry the laboring ore many times and, frankly, most of the time, and so grateful for other colleagues at the firm who jump in and help on these matters.


Greg Walsh:  Well, we wish you both luck today in court, and thank you more broadly for your efforts on this front. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are 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