Shut-down orders issued by state governors amid the COVID-19 pandemic and federal responses to the pandemic such as the CARES Act raise a range of issues related to religious freedom. Join us for this teleforum that will discuss the constitutional and statutory issues raised by these measures, including religious exemptions and participation by religious institutions in federally funded relief programs.
Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society
Prof. Michael P. Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law
This call is open to the public - please dial 888-752-3232 to access the call.
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 fedsoc.org.
Dean Reuter: Welcome to The Federalist Society's practice group teleforum conference call as today we discuss “Religious Freedom in a Pandemic. I'm Dean Reuter, Vice-President and General Counsel and Director of the Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
We're very pleased to welcome two return guests to our program today. We're going to hear opening remarks from each for about 10-15 minutes and as always, we'll be looking for your questions so have those in mind for when we get to that portion of the program.
We're going to hear first from Professor Michael P. Moreland. He's the University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion, and Public Policy at Villanova University Charles Widger School of Law. That's a mouth full, Professor.
He'll be followed by Kim Colby, who's Director of the Center of Law and Religious Freedom at the Christian Legal Society. As I mentioned, we're very pleased to welcome both of them. Good to have you back, both of you.
With that, Professor Moreland, the floor is yours.
Prof. Michael P. Moreland: Thank you, Dean, and thank you to The Federalist Society for the invitation to be part of this.
So I will talk a little bit about shut down orders as applied to religious institutions and houses of worship. And then I'll turn over to Kim who will talk about the CARES Act and some other aspects of religious freedom in this context.
So basically, as everyone knows, many governors have issued shut down orders for gatherings and other kinds of services. And there are basically three kinds of approaches that those shut down orders have taken with regard to religious institutions.
One would be shut down orders that do not have any exemption in them for religious institutions. A second set of them actually expressly exempt religious institutions and churches. And then a third would be exemptions but not for worship gatherings but for the provision of social services, soup kitchens, homeless shelters, things like that.
So I know that people have different levels of expertise coming into this issue so just by way of background, recall that the Supreme Court's decision in 1990 in Employment Division v. Smith held that even where there's a substantial burden on religious free exercise, it's a neutral law of general applicability. There is no presumptive constitutional right of religious exemption, even notwithstanding that burden on free exercise.
Now, of course, at the state level, there are a number of religious freedom restoration acts and also state supreme court interpretations of their own free exercise state constitutional provisions that notwithstanding Smith, nonetheless, provide some heightened level of scrutiny for burdens on free exercise. And so again, that's just by way of kind of painting a little bit of a background to this.
So it seems to me there are two issues regarding exemptions for houses of worship amid these shutdown orders. The first is may the states grant exemptions from their shutdown orders? Is it permissible to grant exemptions to houses of worship? And as to that issue, my inclination's to say that yes, notwithstanding objections from some quarters that singling out religion for exemption in this way raises, say, Establishment Clause or other kinds of problems. I don't think -- I actually don't think that's a particularly powerful legal argument.
Having said that, of course, in here leaves the domain of law for that of policy, one can have different kinds of views about whether or not religious institutions should be exempted from those requirements. So basically, as to the may question, I think they can.
The more difficult issue in the way there's been more, I think, attention to this issue is must churches, houses of worship, be exempted from these kinds of shutdown orders? And what are the avenues available to religious institutions if they object to them? Again, for good reasons or not, one can disagree.
And there, I think it's an interesting and underappreciated aspect of the post-Smith free exercise landscape on this question. So as we know, of course, these shutdown orders do have some exemptions in them for essential services as they've been deemed: grocery stores, gas stations, in some states, liquor stores, pharmacies, things like that.
And so that's an important way of understanding the issue because the question then is does the presence of secular, non-religious exemptions from this kind of shutdown order render the state framework underinclusive. That is to say that not according such an exemption to a religious institution raises some kind of constitutional problem such as it would require granting a religious exemption.
And as I say, this has been a somewhat underappreciated aspect of the post-Smith religious free exercise world. There was a prominent case from a few years ago actually decided by then Judge Alito at The U.S. Court of Appeals for the Third Circuit involving a Newark Police Force requirement that officers not have facial hair. And in that case, there was an objection to this from those who felt a religious obligation to grow a beard.
And in the opinion for the Third Circuit, Judge Alito said that the fact that the police force had exemptions for, say, medical reasons or for undercover officers from the requirement of no facial hair, that a refusal to extend that exemption to religious objectors rendered the law unconstitutional as applied to them.
More specifically, it undermined the state's ability to show that it, in fact, had a compelling state interest in that it had narrowly tailored its requirements to achieve that interest. And so here, the question, which I think is just from a free exercise doctrinal standpoint and interesting one, is does the state's crafting for essential services, the gas stations and the grocery stores and so forth, does that undermine its ability then to refuse to grant those kinds of exemptions to houses of worship?
My own inclination is to say that I don't think it does. That is to say I think that the states are still on fairly sound constitutional ground here. It would be different, of course if the states were exempting restaurants or schools, for example, from these requirements. They were allowing them to open but said that religious institutions still had to be subject to these kinds of requirements.
And again, I want to underscore that I'm really speaking here purely as a matter of kind of a constitutional doctrine of free exercise at both the federal and state level as applied to these types of cases so that even in a state where, let's say, a state Religious Freedom Restoration Act or a state constitutional provision had been interpreted to require that burden on free exercise like saying no, assembly for worship is subject to strict scrutiny. That is to say that the government has to show that it has a compelling state interest and that it narrowly tailored its restriction in the way that's least restrictive to religious free exercise.
I think that the states generally, in this context, are going to be on fairly sound ground in saying that they can craft exemptions for certain kinds of reasons for essential services and that that narrowly achieves the government's compelling interest in preventing the spread of the virus. And at the same time say that other kinds of exemptions don't have to be given for, say, gatherings or assemblies for worship or other kinds of purposes.
So I think that's basically the lay of the land right now. Obviously, it would be different, as I say, if there were exemptions for other kinds of reasons. I think it's important that there be some kind of time horizon here. It'd be one thing to say no assembly for a certain -- above a certain number of people for a month or two. If that goes on and on, I think the legal issues start to become maybe a little more complex depending on the situation on the ground.
But for the most part here, I think that the states are within their rights to enact the requirements that they have. And so I actually think this issue, notwithstanding some press attention to it and I think some complicated issues in the states, I think it's a relatively straightforward issue. And more straightforward, I hasten to say, than I think the issue that Kim's now going to talk about which is the implementation of the CARES Act as applied to religious institutions, which is a more complex, administrative, and regulatory environment.
And so with that, I'll turn it over to Kim.
Kim Colby: Thank you, Michael. I'm going to, as Michael just said, address the religious freedom implications of religious nonprofits participating in the Small Business Administration loan programs under the CARES Act.
But before, again, I want to -- begin, I want to emphasize that I'm not providing legal advice. So religious nonprofits should consult legal counsel regarding participation in these programs. I also want to note that the administration, including the SBA, should be commended for their rapid response in addressing many religious freedom concerns in a very short time period these past few days.
Historically, the SBA has had no interaction with religious nonprofits. And as a result, some of the existing SBA regulations and application forms raise significant religious freedom issues. Many of those concerns were addressed in an interim final rule in an FAQ guidance document that were issued last Friday night, about 10:30 on April 3. The Religious Freedom community is very appreciative of the administration's efforts to address its religious freedom concerns, although, a few concerns remain.
So just to get the big picture here, the CARES Act, which I think was signed into law on March 28, appropriates $349 billion in loan guarantees for small businesses to be administered through two SBA programs: a relatively small existing program called the Economic Injury Disaster Loan Program, or EIDL, and a much larger new program called the Paycheck Protection Program that's designed to piggy back on an already existing structure of an SBA 7(a) loan program.
So Congress expanded the programs beyond for-profit small businesses to include nonprofits as well. As part of the nonprofit sector, religious nonprofits then became eligible to participate in these loan programs. Of course, like other employers, religious nonprofit employers face the necessity of staff layoffs due to a sudden drop in revenue.
Without a cash infusion, many religious nonprofits will be forced to curtail their programs, serving persons in their communities at a time when their services are most needed. So last week, as religious nonprofits began to complete the SBA forms and read the existing SBA regulations to figure out what strings might attach, religious freedom concerns surfaced. And the application process opened on April 3. That night, the administration released its new interim final rule and the FAQ, which I'm going to focus a lot of my attention on in the next few minutes.
So what are the religious freedom concerns? How did the administration address them? And what concerns remain?
We'll begin with the EIDL program, the Economic Injury Disaster Loan program, that provides grants and loans in disaster areas. An existing SBA regulation made a business ineligible, not eligible, to participate in EIDL or other SBA loan programs "if the business," and I'm quoting, "principally engaged in teaching, instructing, counseling, or indoctrinating religion or religious belief."
The application form on the SBA website requires that a loan applicant certify under penalty of perjury that the loan or grant proceeds will only be used to provide secular social services to the general public. For obvious reasons, many religious nonprofits could not check that box.
In last Friday's FAQ, the SBA agreed that its regulations impermissibly excluded some religious entities based solely on their religious status, and therefore, it would not enforce those regulations. The SBA declared that an otherwise eligible organization would not be disqualified from receiving a loan because of its religious nature, identity, or speech.
Unfortunately, as of just maybe an hour ago, the outdated application form remains on the website and should be revised quickly because it is creating confusion among religious nonprofits and their leaders -- and their lenders as to whether they can participate.
I'm going to turn now to what is called the Paycheck Protection Program, which is the new program through which most of the $349 billion will flow to small businesses and nonprofits. Participants are eligible to receive two and a half times their monthly payroll as a federally guaranteed loan to be forgiven in six months if two conditions are met.
First, 75 percent of the loan proceeds may go only to pay payroll costs, with the remainder spent only on payroll interest on a mortgage, rent, or utilities. The second condition is that the employer must maintain the same number of employees as it had on February 15 at 75 percent or greater salary levels. If those two conditions are not met, the loan is not forgiven, but the employer then has two years to repay it.
Dire economic conditions have made religious nonprofits consider participating in such programs even when they have previously been wary of government programs because of potential strings on their religious exercise. So here's how the interim final rule and the FAQ from April 3 address these concerns.
First, the FAQ explains that there are two overarching principles that will guide the SBA's treatment of religious nonprofits. The first principle addresses the Establishment Clause. Basically, the SBA programs are neutral, generally applicable government programs that provide support for nonprofit and for-profit organizations without regard to whether they are religious or secular.
Consequently, the Establishment Clause places no additional restrictions on how faith-based organizations may use the loans. Because the purpose of the programs is to keep employees on payroll, the SBA confirms that the loans can go towards the salary of ministers and other staff engaged in the religious nonprofit's religious mission.
The second overarching principle affirms that religions nonprofits do not lose their autonomy or waive their rights under the First Amendment, the Religious Freedom Restoration Act, Title VII, or other federal laws. Specifically, religious nonprofits may define their standards, responsibilities, and duties of membership. They retain their freedom to make employment decisions as well as their independence, autonomy, right of expression, religious character, and authority over their governance.
And then there's a specific guarantee that no religious nonprofit will be excluded from programs because it limits its leadership, membership, or employment to persons who share its religious faith and practice.
A second major concern was whether religious nonprofits could participate if as a consequence of affiliation with other religious nonprofits, their aggregated number of employees exceeded 500 employees, which is the basic cutoff for the SBA to give loans. For example, would the various religious nonprofits affiliated with a Catholic diocese each be able to participate?
The interim final rule and the FAQ state that a religious nonprofit's affiliation with other religious nonprofits does not necessarily disqualify it from an SBA loan program. If the affiliation is based on a religious teaching or belief or is otherwise a part of the religious exercise of the organization, the organization qualifies for an exemption from the SBA's affiliation rule.
So affiliations based on religious beliefs about church authority or internal constitutions are permissible as are affiliations based on the legal, financial, or other structural relationships between the organizations, if they are founded on the religious beliefs of the organizations. Non-religious reasons alone, such as administrative convenience, do not qualify.
Importantly, the SBA and the FAQ promised that it and private lenders will defer to a faith-based organization's good faith determination that this exception applies to it. And the SBA provided a sample addendum for a religious nonprofit to attach to its loan application in order to notify the SBA that it's claiming the affiliation exemption.
And I would also note that this is an interim final rule so there will be a 30-day public comment period on the interim rule if people want to comment.
Just quickly, another concern was about tax exempt status. So the CARES Act was carefully worded to ensure that religious nonprofits who have not previously applied for tax exempt status, perhaps for theological or economic reasons, are not excluded from participation in the loan programs. The FAQ clarifies that religious nonprofits must meet the 501(c)(3) requirements, but they don't need to apply for tax exempt status.
Finally, turning to an area where there's still a problem, the SBA has a couple of nondiscrimination regulations. The CARES Act placed no strings on religious nonprofits participation in the programs. So Congress put no strings on because Congress just wants to keep employees employed by as many employers as possible.
But as we've already seen, several SBA regulations might place strings on religious nonprofits, but the SBA has said that those regulations will not be enforced. We turn now to the SBA regulations that set out nondiscrimination requirements as to employment or as to goods, services, or accommodations.
So to begin, the SBA declares that receipt of a loan through its programs constitutes federal financial assistance, and therefore, triggers certain nondiscrimination obligations for the life of the loan. And the SBA's FAQ is very clear about this.
The pre-existing SBA regulation regarding employment discrimination is probably no longer a concern so I'm not going to spend a lot of time on it. But basically, the FAQ and the interim rule reassure religious nonprofits that they retain their autonomy to make membership and employment decisions based on their religious exercise.
If you combine this with Title VII, RFRA, and the First Amendment, religious nonprofits are probably safe as to their employment decisions. Unfortunately, the same can't be said of the regulation regarding services, goods, and accommodations, which is SBA Regulation 13 CFR 113.3(a). That regulation states that recipients of federal financial assistance may not discriminate with regard to goods, services, or accommodations offered or provided by the aided business or other enterprise, whether or not operated for profit, because of race, color, religion, sex, handicap, or national origin of a person.
Of course, protections based on race, color, and national origin do not trigger religious freedom concerns. Since 1964, these three characteristics have been protected under Title VI as to all federal financial assistance.
As to religion, sex, and handicap, I just want to make a few observations. I don't have answers. I would note that the SBA regulation is much broader than the public accommodations provision in Title II of the 1964 Civil Rights Act. That provision, Title II, protects religion as well as race, color, and national origin. But because Title II generally does not define public accommodation to include religious entities, that prohibition on religious discrimination has not previously posed problems.
And as to sex, federal financial assistance triggers Title IX's prohibition on sex discrimination in education. The Title IX has a broad religious exemption that protects religious schools from being forced to violate their religious tenants.
Of course, concerns about sex discrimination generally, not just for Title IX, will increase greatly if the Supreme Court decides that sex, for purposes of employment discrimination law, Title VII, should be interpreted to include sexual orientation or gender identity. The Court heard argument on the redefinition of sex last October in the Zarda, Bostock, and Harris cases, and a decision is expected in the next two months.
Turning to handicap, religious entities generally are very solicitous for the wellbeing of persons with disabilities. And the Americans with Disabilities Act has a strong religious exemption that protects religious entities from having to spend scarce dollars on expensive renovations of their facilities.
However, Section 504 of the Rehabilitation Act of 1973 does not have a similar religious exemption. It prohibits discrimination as to employment as well as services and accommodations. Compliance could get expensive, and there is an implied private right of action to sue in federal court.
The practical question, of course, becomes whether the SBA is likely to enforce its provisions as to religious nonprofits' facilities during the six months or two years that they participate in the loan programs.
Just looking at the FAQ as to this regulation generally, it's unfortunate that the SBA discusses this difficult regulation in a way that echoes the Obama administration's misunderstanding of religious freedom. According to the SBA in the FAQ on April 3, its regulations apply with respect to goods, services, or accommodations if they are offered generally to the public but not to a religious nonprofit's ministry activities within its own faith community.
And the example it gives is that the SBA will apply its regulation to a religious nonprofit that operates a restaurant or thrift store open to the public but not to a religious nonprofit that distributes food or clothing exclusively to its own members or co-religionists.
Some hear troubling echoes of the Obama administration's impermissible line drawing when it tried to limit the HHS mandates religious exemption to religious congregations that confined their ministries to persons within their congregations. If they served others outside their congregations, they could not claim the religious exemption, at least in its initial phase. Now, as then, religious communities should not be forced to forfeit their religious freedom because they serve persons beyond their congregations.
I should also note that the SBA in its FAQ says that it will not apply its regulation in a way that imposes substantial burdens on the religious exercise of recipients, and it uses as examples performance of church ordinances, sacraments, or religious practices. But I think that we still should hope that the SBA would correct its narrow interpretation of 13 CFR 113.3(a) and give us a little more hope that it's not a string on participating in these loan programs.
So the purpose of this whole discussion is simply to make religious nonprofits aware of obligations that may or may not attach to participation in the loan programs. The final thing I'd say is I recently, like yesterday, have been getting a lot of questions about whether religious congregation may include ministerial housing allowance in their calculations of monthly payroll amounts because that's very important for determining how big the loan will be that they receive. And this is an issue that'd be really helpful if the FAQs were quickly updated to say that they can include ministerial housing loans.
Dean, that's all I have to say on that topic.
Dean Reuter: Terrific. Well, thank you, both, for those opening remarks. Let's turn to our first caller of the day.
Kanal Patel (sp): Hi, this is Kanal Patel. I go by Jay. Thanks so much for the information. I came in maybe -- I was a little late here to this session, but as far as the specific, I would say, available options for religious organizations or even SBA's small business in that context that you talked about for accessing some of the benefits as part of the stimulus, is it -- if a religious organization was to provide services like counseling and things like that, would that differ from being able to access some of the benefits that are being put into this new charter, if we call it, for religious organizations?
And if that organization also was doing this telehealth, where tele, you know, not in person, how would that differ? And if there's any clarity around that, if you have that, that would be great. If not, that's all right too. Thanks so much, yeah. 9Appreciate it.
Kim Colby: So my answer -- and I hope I understood the question, it was very clear but sometimes, I may have missed something. But from my -- the answer is no, that the SBA has said that it won't enforce its preexisting regulation that would have looked at whether an entity was engaging in religious counseling or instruction, indoctrination.
The problem is that when the religious entities go onto the website today, if they don't know that that FAQ says that, then they are still confronted with an application form that requires them to check a box saying that they're not doing anything but using the money to provide secular services. So there's this gap between the FAQ and the form that remains on the website. So that is a problem.
I think if—I was just discussing this with somebody else a few minutes ago—if a religious nonprofit goes on, it has to fill out the form. I think it should not check the box. It should include an addendum when it submits the application that explains I couldn't -- our organization could not check that box because we do provide religious services, but we understand that the SBA is not going to enforce the regulation that is the reason for this box that is on the form. So don't check it, but provide an addendum that explains why you didn't check it and site to the FAQ.
Dean Reuter: Professor Moreland, anything on this point?
Prof. Michael P. Moreland: Well, it's an interesting, a more theoretical point and it strikes me that both Kim and I are dealing with, context of which the government may accommodate religion as opposed to context in which it must. And I think it's worth noting that it's considered at the outset that the administration very quickly [inaudible 31:17] give a more religious freedom friendly rendering of some of these regulations.
And there’s interesting questions about would religious institutions have to be included in this kind of program? Could they be excluded consistent with RFRA with the Constitution. And fortunately, we haven't had to face that.
Dean Reuter: Very good. Let's carry on. Go right ahead caller.
Tom Higgins: Yes, I have a -- yes, hi. I have a question for Professor Moreland. My name is Tom Higgins. I'm a lawyer practicing in New York. I'm calling from my home office in New Jersey. And my question was that in Smith, which was the 1990 peyote case authored by Judge Scalia, the law that was upheld was applied to all users of peyote whether they claimed a religious exemption or not.
Whereas here, the state governors are purporting to distinguish between gatherings that are for secular purpose, such as shopping at shopping center or gas stations, which is the example you used, and gathering for religious purposes and purporting to decide what is and what is not essential for religious gatherings. Do you think that the Constitution even allows the government to be involved in trying to make that distinction about what is and what is not essential for religious purposes?
Prof. Michael P. Moreland: Well, up to a -- I wouldn't say for religious purposes, but up to a point, I think the states are empowered under their general police power to make these kinds of orders and then to discriminate between essential and non-essential services. But you're right that what Smith points out is that this is apt to neutral laws of general applicability, and part of what I was indicating briefly in my own remarks was that if a law fails at the general applicability, that is to say if it has a set of exemptions in it like the Newark Police beards case raised, that then, at least the doctrine on this, says that triggers a strict scrutiny approach to the framework then.
And then we get into the questions of then is the government's whole approach underinclusive? And in this context, at least a lot of the state orders that I've seen so far, it's not so much that the state is saying that well, certain kinds of gatherings for purposes that are "secular" are permissible but not religious ones but that instead certain services or shopping will be open namely for food, gas, and the like because that's essential to people's day to day lives but that other gatherings across the board, religious or not, can't take place.
And again, some states actually have expressly granted an exemption for religious institutions, so it is a bit of a patch work on this. But the question there would be does the presence of any exception to a general applicable law render the whole framework underinclusive? And as that question on this issue right now, I think that the states are on reasonably safe ground. But that's revisable depending on how they carve out further exemptions if some of these lockdowns get lifted to one extent or another.
Tom Higgins: Thank you. If I could just follow up, Archbishop Tobin, the Archdiocese of Newark, has taken a position that this weekend, Catholics are not obligated to go to mass for Easter, which is the most solemn holiday in our year. Would your position change if he issued a statement tomorrow that said upon reflection, I believe that all good Catholics need to assemble at church and celebrate the holy feast of Easter. Would you think that New Jersey preventing those events from occurring or arresting people, would that be constitutionally permissible in your view?
Prof. Michael P. Moreland: Well, fortunately, we haven't had to tee that question up in quite that kind of a direct way. And I do think that's why, just somewhat speculatively, I think a lot of states exempted religious institutions and houses of worship because I'm kind of concerned about enforcement, like what would this actually look like and relying instead on voluntary cooperation by churches, including, as you point out, the Catholic church saying to here across the river and the Archdiocese of Philadelphia, the archbishop has dispensed the Sunday obligation and churches are not holding public masses.
So the churches have voluntarily cooperated. I think that the enforcement issue is a different one and I think obviously would raise all kinds of complicated questions in its own way. But as for now, I think that between both the states' ability to enforce this and I think a level of voluntary cooperation from civil society, we haven't had to face the kind of case that you're talking about.
Dean Reuter: Go ahead caller.
Don: Hello. My name is Don [inaudible 36:22]. I’m a lawyer in Washington. Thank you to both guests and of course to you, Dean. Very informative teleforum. Under the PPP, the Paycheck Protection Program, and to a lesser extent, under the tax credit that ministries can get for paying paid sick leave to people, we have really what I think is an unprecedented transfer of wealth from the government, from the taxpayers to religious organizations. And undoubtedly, this is going to be challenged as an Establishment Clause problem or under some other claim.
I'm wondering what do you think will happen if those claims are upheld that this is some kind of violation of the Establishment Clause, and we have 501(c)(3)s, including ministries, who have taken out these loans and all of a sudden, they're found to be unconstitutional. Is there anything you would say to a ministry?
Kim Colby: I guess I'm not concerned about -- as concerned, maybe, as I should be, about losing that case on appeal, and by appeal, I mean in the Supreme Court. I just think this -- so I think it's a good question to ask, and we should be asking it. And there certainly will be a challenge. That's almost certain.
But I think that especially -- the whole purpose -- the whole program is just so neutral as to religious activities and religion. It's not set up -- no one can claim that it was setup for a purpose of subversively getting money to the religious groups. And when you look at the whole program, I agree with you, it's unprecedented. But it's also the percentage that the religious nonprofits are going to be getting out of this $350 billion, possibly $600 billion before the weeks out, money is really going to be quite small, a quite small percentage.
So I think that the loans -- I feel pretty safe that the religious nonprofits will be okay and not have to repay them. I have -- I do know of at least one lawyer who's advising that the money be used exclusively for payroll and not be used for any sort of building maintenance. But under the rules anyway, it's not supposed to be used for anything other than rent or interest rates on your mortgage.
So I think it's going to be hard to challenge. And when -- it just won't win at the Supreme Court. I'm pretty confident of that.
Prof. Michael P. Moreland: Yeah. I agree with Kim on that. Of course, there's been some action on this general front the last few years. Some listeners know the court of appeals, a few years ago, decided this case Trinity Lutheran involving money for a state program that resurfaced playgrounds. But notwithstanding its somewhat mundane context, I’ll bet that kind of program where the state has generally available funds, it can't exclude religious organizations from that.
And the court actually has before it now a case involving a Montana scholarship program. And so while these are somewhat peripheral to the precise issues that we're talking about here relative to the CARES Act, it's nonetheless I think important to say that the Establishment Clause over the last few years has been interpreted in ways to say that if it's a neutral program and happens to go to religious institutions, that that in and of itself doesn't raise an Establishment Clause problem.
And that even furthermore, that if the government were to exclude religious institutions, that itself might raise some concern. So I do think that the doctrine on this is fairly strong in favor of the religious institutions. But as Kim says, I don't doubt that it will nonetheless still be subject to potential challenge.
Dean Reuter: Let me ask, I think Kim Colby probably, under the CARES Act, you alluded to this, does this amount to government salary support for clergy for some of these recipients? And what are the potential constitutional implications of that?
Kim Colby: Well, that does probably raise the strongest constitutional question. It does -- the FAQ is clear that if your employee's a minister, this program -- the proceeds from the loan can be used to pay his salary or her salary or anyone on your staff who engages in the religious mission as well as the janitor and the organist and other people. So that is, I think, where the challenge will come.
But I would -- and it has some substance to it, but the interesting thing is the two cases that I would think of right away, besides Trinity Lutheran, which Professor Moreland already explained and what we're hoping for in Espinoza, the two cases that would come to mind are McDaniel v. Patty where back in the 70s, Tennessee excluded ministers from participating in certain political offices, particularly the state constitutional convention.
And that was challenged and the state constitutional provision excluding the ministers that had actually, I think, dated back to Madison and Jefferson writing Kentucky's Constitution, was held unconstitutional because it excluded the religious -- the ministers because of their status as ministers. And this is a case that the Court relied on heavily in Trinity Lutheran.
The other case is Locke v. Davey in which the State of Washington used its state constitution to prevent paying for the education of a student who was studying to be a minister. And there's -- it's pretty clear from Supreme Court case law including Witters back in 1986 that the federal Constitution didn't prohibit that. It was purely whether the state could impose its own exclusionary ban.
And so I think given all the case law, even as part of an -- because this is such a neutral program, that the fact that a little bit of the money goes to pay a few ministers' salary is not going to make it unconstitutional.
Dean Reuter: Professor Moreland, anything on this point? When -- as you guys are all, I'll let you know that you've got --
Prof. Michael P. Moreland: Right well, I think Locke versus --
Dean Reuter: Go ahead.
Prof. Michael P. Moreland: Yes, Locke v. Davey is interesting because it, as Kim puts, it does raise a question of is that a floor or ceiling? And it says that the states can permissibly restrict money going for clergy training or clergy support. And the question there would be if, let's say, a different administration had implemented this program in a way that excluded that, what kinds of issues would it raise?
But I think it's pretty safe to say that it doesn't mean that the state must or that the federal government must [inaudible 44:28] this kind of support, even for ministers, whereas Kim has pointed out, this is a neutral program.
Kim Colby: Dean, the state law aspect triggered something that I meant to say during my remarks and forgot to, if I could insert it here.
Dean Reuter: Yeah. Go ahead.
Kim Colby: If you're a lawyer advising religious nonprofits, one of the things you do want to check is what the state nondiscrimination laws provide as far as religious exemptions because I was talking to a Colorado attorney who said that their religious exemptions to their, I think it's their employment nondiscrimination law, applies only to religious organizations who have not received government funding.
So you just want to -- I don't know if Colorado is the only state with that type of provision or if it's more widespread. But you do want -- one possible string is what happens to your state religious exemptions, and you do want to look at that.
Dean Reuter: Terrific. We do have a couple more caller questions. Let's take our next call. Go ahead, caller.
David Wilson: Hi, it's David Wilson. I'm a lawyer in private practice in Colorado. Thanks to both speakers. Hello, Dean. My question is for Professor Moreland. And I'm concerned about the limits of state power to limit in person religious gatherings. Can you think of any scenario other than a public health emergency in which a state would be constitutionally justified in telling churches that you can't get together and meet on a particular Sunday or other sabbath day?
Prof. Michael P. Moreland: Generally speaking, no. And I hope we don't have to find out other contexts any time soon. But anyway, suppose in maybe amid a mass civil unrest or something like that, you could imagine governors and mayors being able to invoke this kind of broad policing power. And I say that police power, not in the narrow sense of the police department but the general power of the state to regulate for public order.
And of course, there are cases including Jacobson v. Massachusetts from 1905, which actually came up prominently yesterday in this totally separate issue of the Texas abortion context, but in which the Supreme Court of the United States had held that you can restrict -- I mean, broadly speaking, the holding there that in the interest of public health, there can be some limitation of otherwise valid constitutional rights.
So I agree that, especially for those of us more sympathetic to libertarian views, one has to be worried a little bit about overreaching on the part of the states and ensuring that the states are acting validly within their police power pursuant in any of the state constitutions or statutory authority and the public health context especially given that the moment we're in right now seems a particularly strong one for that while understanding that there's still limitations. But generally speaking, I think, again, as I said at the outset, I think that as for now, the states are on pretty solid ground.
Dean Reuter: Let's take another call.
Lance: Hi. This is Lance from Kansas City. One quick comment and then I have a question, Kim, for you. The comment is literally while we were sitting here, the attorney general of Kansas issued a legal opinion telling law enforcement in Kansas not to enforce a limit on religious gatherings and an executive order that the governor here issued yesterday, basically on the grounds that it too broadly grants other secular exemptions that don't -- aren't clearly enough tied to public health concerns. And so anyway, it's interesting that just happened while we were here. My question -- while we were talking.
My question for you is, going back to the hypothetical that was offered earlier about counseling, you mentioned that it's pretty clear that you could receive benefits even if you're offering religious counseling. But if you're a church that has, say, a counseling ministry and that counseling ministry is open to anybody, not just members of your congregation or of your particular faith tradition, just anybody who needs counseling can come in.
Depending upon how things go with the Title VII cases that may be coming down this summer, is there a legit concern in your view that, let's say for faith-based reasons, you offer family counseling but you're not going to offer it to same-sex couples. Is there potentially a problem for that entity depending upon how -- what ultimately sex is determined to mean or even if we don't have a, from my perspective, unfavorable ruling in that regard but in subsequent, you still have a loan outstanding and there's a subsequent administration that wants to interpret sex more broadly. Is that just a remote kind of law school exam hypothetical, or is that something entities should really be concerned about?
Kim Colby: Well, that's a great question, Lance. And I really -- it's -- shoot me that opinion from the AG because one reason I'm interested is Americans United for Separation of Church and State never to let a good crisis go to waste. I know it sent a letter to the Kansas governor basically criticizing her about 10 days ago for exempting religious gatherings and saying that wasn't permitted, which I don't think is true.
So anyway, I'd like to see that opinion. But going back to --
Lance: I'll email it to you.
Kim Colby: So I do think it's a problem. I do think we could see this scenario you outlined if the Supreme Court goes the wrong way and if there are changes in who's making the rules and if the loan is one that's not forgiven in the six-month period but instead goes into the two-year repayment timeframe, I think all of that could happen. And so that's part of -- because of the goods, services, and accommodations regulation.
And because what you described is exactly what the FAQs contemplated and said, we will enforce this in a situation where the church or religious congregation is providing services to people outside the congregation. So that's why that regulation really needs to be somehow reinterpreted because it does make religious organizations nervous.
My problem is when I was doing that strings portion of what I talked about, I know that a lot of religious congregations and ministries need these funds, just like everyone else, to get them over the next couple months. And so I really hate to scare people into not taking funds that will mean they can keep their employees on staff and continue to do good things because there is this possibility that the strings could come back in a bad way.
So I just try to walk this line of saying --
Kim Colby: -- look, this looks like a possible string. You should be aware of it. I'm not trying to scare religious nonprofits from taking the money if they really need it. That's their decision to make. You're just trying -- I'm just trying to get the information out there. But I do agree that's a possibility that's not as hypothetical as we'd like it to be.
Lance: Okay. Thank you.
Dean Reuter: Professor Moreland, anything on this?
Prof. Michael P. Moreland: Well, I'm curious to see the Kansas attorney general's opinion as well. It underscores the point I made that there's interpretive room here between thinking that any exemption for so-called essential services somehow undermines the state's ability to enforce its shutdown requirements as to religious institutions. As I've been saying all along, I think that's a little too quick and that at least in most contexts, it's still within the ability of the state.
And again, that's separate apart from the enforcement question where I can appreciate that there are optics involved of the police breaking up worship services that would look ugly and unpleasant. But notwithstanding that, I do think that it's within the power of the state to do this subject to certain kinds of limitations.
Dean Reuter: Well, Kim, this is Dean. It sounds like you might be getting a copy of that from our caller. If you want to forward that with a sentence, we can -- just a sentence description, we can put that on our blog as a blog post from you.
We've got one question remaining, so this seems to be our final question of the teleforum. Go ahead, caller.
Emily Mimnaugh (sp): Hi. Yes, talk to me here a bit more on the string -- sorry, this is Emily Mimnaugh from Nevada with a Christian nonprofit. And I'm getting some conflicting advice about how enthusiastic we should be. And so I was looking over the guidance, the FAQ guidance, and it says that we can -- we will incur certain legal obligations whilst we have the funds and before they're paid back. And what just -- can you say a bit more on what those legal obligations in relation to nondiscrimination could be in the specific context with hiring?
Kim Colby: Sure. Look at 13 CFR 113.3(a). It's basically imposing a nondiscrimination requirement as to goods. services, or accommodations. And I can't go into -- that's the big questions is whether that poses a problem for your particular religious nonprofit. It may not. But that is the one you have to look at and be aware of. And you're reading the FAQ, so you then know pretty much as much as I know.
Dean Reuter: Kim, if you have that again at your fingertips, could you give us that site again?
Kim Colby: For the regulation?
Dean Reuter: Yes.
Kim Colby: It's 13 Code of Federal Regulations 113.3(a). And the "a" is in parentheses.
Dean Reuter: Very good. I think we've had our final question for the call. We've got a couple minutes left, so let me give you each a chance to express a final thought if you've got one. And we'll go in the order we began. Professor Moreland?
Prof. Michael P. Moreland: Well, thanks again to Dean and The Federalist Society and to Kim Colby for this interesting discussion. I do think that we live amidst a lot of turmoil right now, and I think that it's raising a lot of interesting legal issues for us to think about.
Again, I, in general, I think that the states' shutdown orders subject to certain kinds of limitations are within the police powers of the states. But I think at the same time, it's also incumbent on institutions of civil society to cooperate with these kinds of things but also to vigilant that there isn't a targeting of religious institutions in this kind of context and that we all hope and pray that before long, we can get back to normal.
Dean Reuter: Kim Colby, a final thought?
Kim Colby: Just that I think it is good that people are chasing at these restrictions. I'd hate to see us just blindly going along with what the government tells us to do. But I do think this is a situation where legal challenges to these restrictions are very likely to end up in making bad precedent that can be used against us down the road. So I think it's just a time to be prudent.
And my own church, I think, is all online, and it's getting a lot of hits from people who don't normally go to church. So that's the good news during Holy Week.
Dean Reuter: Very good. And very good to hear from both of you. Thanks for joining our conversation -- leading our conversation today. Kim Colby and Professor Mike Moreland, great to have you with us. I want to thank our audience as well for dialing in and for your questions.
A reminder to our audience to monitor our website and monitor your emails for what is a quickly changing landscape of upcoming teleforum conference calls. I think our next one is tomorrow. But until that next call, we are adjourned. Thank you very much everyone.
Operator: 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.