Legal Docket - First Amendment pandemic protections

NICK EICHER, HOST: It’s Monday morning and a new week for The World and Everything in It. Today is the 20th of April, 2020. Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Well, we’re taking a break from the Supreme Court, but to be fair, they took a break from us first. The court did agree to hold arguments in the remaining cases remotely and we’ll have the audio for you as I get it.

EICHER: That’s news. The high court’s never taken that kind of step before.

REICHARD: Right, it has not. Desperate times, desperate measures. 

But these are not exactly uncharted waters. The lower federal courts have been doing remote arguments already.

EICHER: So one of those cases in a federal trial court is on our docket for today, because, again, we’re waiting on the Supreme Court and because the case is a critical First Amendment case.

REICHARD: Yes, before I get to that, I should mention that last Thursday, churches in Kansas, Mississippi, and Tennessee filed lawsuits in federal court because public officials singled out churches in their shelter-in-place orders. Some of which excluded places like malls, restaurants, and libraries.

EICHER: We should note that those churches have the backing of the U.S. Department of Justice. Because Attorney General William Barr took a strong position against the actions of these local officials.

REICHARD: He did, and that led the mayors of Greenville, Mississippi, and Chattanooga, Tennessee, to reverse course to allow drive-in church services.

And then on Saturday, a federal judge in Kansas issued a temporary restraining order against Governor Laura Kelly’s restrictions. 

Today, the case I’m going to walk through is a similar dispute still going on in Louisville, Kentucky.

EICHER: Yes, Kentucky Governor Andy Beshear in mid-March banned all “mass gatherings” in the state. Nothing necessarily controversial about that, because at first he said it didn’t apply to drive-in church services, so long as they complied with CDC guidelines on social distancing. 

But then the week before Easter Sunday, Louisville mayor Greg Fischer took the governor’s order to mean drive-in services are banned, and he warned those churches to stop.

The church’s lawyers sent a letter to the mayor pointing out he couldn’t do that.

REICHARD: Nobody responded, so the church requested a temporary restraining order against the mayor. Judge Justin Walker granted it. 

Now, that brings us up to last Tuesday. 

And I was able to listen in on the telephonic hearing last week. 

Judge Walker started out with this:

WALKER: On Fire Christian Church et al v Greg Fischer et al 320-CD-264. Even though we’re doing this over the phone, this is a courtroom, so the rules of our federal courtroom are in place. That means no recordings.

I did press the stop button! 

What Judge Walker is trying to decide is whether to make his temporary restraining order into a preliminary injunction. 

That’s a court order made early on in a lawsuit that would keep the city from banning the drive-in services, while the ultimate outcome of the case is pending.

To be clear, I reached out to the mayor’s office for comment. Didn’t hear back.

I did speak to the church’s lawyers at First Liberty Institute. One is Kentucky lawyer Roger Byron.

Here’s a portion of our conversation. 

Roger, I think the judge here was very careful in his questioning. He kept asking over and over to the other side, the mayor’s defense counsel and the city’s defense counsel, was it illegal for the mayor to tell the church not to have a drive-in service? Roger, talk about that aspect. 

BYRON: Well, the mayor, like all government officials is doubtless doing the best he can, but he needs to understand that the Constitution provides a limit to what he can do. It provides a limit to government power. And he cannot disfavor religious groups or churches or religious people, cannot target them, for disfavored treatment, even in a pandemic. When religious activities, when the religious people are complying with social distancing guidelines and the CDC’s guidelines, their activities cannot be prohibited.

Judge Walker asked whether what the mayor said could be heard as a threat. Why is that so important?

BYRON: Well, there is no evidence that this virus or any other virus is somehow more contagious in a church parking lot than in a restaurant’s parking lot. And anytime that a government wants to prohibit or restrict religious exercise, particularly in a way that targets religious exercise but does not restrict other activities, non-religious activities that are essentially the same thing, the government has to overcome a very, very difficult hurdle to do that. Under federal law, under the First Amendment, the government has to meet what is called “strict scrutiny.” And it has to provide a compelling reason that allowing that particular church or that particular group to continue to do its religious activity somehow works against a compelling interest the government may have in keeping the church from doing that. And the government also has to show that its restriction is specifically and narrowly tailored to achieve the government’s interests. 

So the threat is in singling out one group over all other groups doing the same activity as far as gathering and still keeping to social distancing guidelines. OK.

One of the things both sides agreed on: this is a fluid situation, the CDC guidelines change everyday, and  people have to understand them and adjust their behavior. No such thing as 100 percent compliance. The human factor. So Judge Walker kept coming back to what is the limiting principle here, to keep government from running over basic rights. 

For example, a parade was allowed to go on in nearby Butchertown, east of downtown Louisville. How are we to understand that?

BYRON: Well, as I think we’ve said, the First Amendment requires that religious activities and religious people be treated the same way and have no additional restrictions placed on them than non-religious activities. And so if the city can allow a parade  to run through town with, you know, with people out on the sidewalks or people interacting with one another watching a parade, certainly there’s not a problem with people sitting in their cars in a parking lot outside a building, listening to one man speak to them and pray with them.

One thing I think people wonder about: the government says these are essential services, and these over here are not. Is Easter service essential?

BYRON: The convictions of many people of faith are that they must gather together corporately, as well as they can under the circumstances in order to worship God. And, uh, the First Amendment protects their ability to do that. So if, if people are allowed to gather together in a parking lot for secular reasons or any other reason, then folks are allowed to gather for religious reasons. If that gathering is just as safe or even safer as, as is the case here, than gathering in a parking lot for non-religious reasons. 

Judge Walker ordered supplemental briefings, due tomorrow. I could hear the other side making side huddles to answer the judge’s questions, and it didn’t seem to be going as well for them as for the church. 

The judge no doubt wants to resolve this Kentucky dispute sooner rather than later. And if  you want to read his strong words in the temporary restraining order, we’ll put a link in this transcript. 

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky, File) In this March 16, 2020, file photo the Supreme Court is seen past bare tree branches in Washington. 

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