Legal Docket - Flattening the curve or squashing religious liberty?

NICK EICHER, HOST: It’s Monday morning and we’re back at it for another week of  The World and Everything in It. Today is the 4th of May, 2020. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. I expect the Supreme Court will hand down opinions this morning and at 10-am Eastern, a first for the U.S. Supreme Court: oral argument via teleconference!

The court will make an audio feed available to the public through a media pool in real time. That’s also new.

First, the justices will hear a trademark dispute over the name “Booking.com.”  The word “booking” is rather generic, but the question is whether adding “dotcom” to it changes anything.

EICHER: Three other cases on this week’s argument docket, including a name we’ve seen before: Little Sisters of the Poor. 

And here we go again on that one, eight years on. Now this time, it’s a consolidated case, with the same dispute at its core: whether Obamacare requires religious employers to provide coverage for abortifacient drugs. Obviously, nuns are Catholic and have sincerely held religious beliefs about such things.

REICHARD: The quick story is the Trump administration expanded who could claim an exemption from the rule, and two states sued to stop that because they say the government didn’t hold a notice and comment period. They argue it’s required under a law called the Administrative Procedures Act.

In other news, bans on church services in light of coronavirus continue to rankle. These are edicts from public officials ostensibly to try to contain the spread. The problem comes when those officials fail to take into consideration First Amendment rights.

EICHER: We’ve told you about that sort of trouble from Louisville, Kentucky. The mayor there prohibited drive-in church services, even though the church did maintain CDC guidelines. 

As did officials in one county in New York who’d issued similar prohibitions on religious services. Now, those particular officials relented and either reached a settlement or backed off altogether.

REICHARD: And then there’s the state of Washington, whose governor Jay Inslee is not backing down. On March 23, he issued an executive order that prohibited people from leaving their homes or participating in social, spiritual, and recreational gatherings of any kind regardless of the number of participants. 

Social, spiritual, recreational. One of those is not like the others. Only one touches on First Amendment rights. 

And on April 21st, Governor Inslee updated reopening plans.

INSLEE: We have simply got to redouble our efforts to protect the most vulnerable amongst us. We need more behavioral health services for anxiety and depression and substance abuse. Because the effects of this pandemic have hit more than just our immune systems and our bank accounts. And obviously, we need to come together. And we know that only science and data and informed reasoning and  confidence in ourselves is going to lift us out of this crisis.

For believers, the disconnect there is that faith does help the vulnerable, the depressed, the anxious. 

Some officials do get it, though, and that caught my attention as well. 

Back in Kentucky last week, a battle between the governor and the state attorney general. 

Governor Andy Beshear banned religious services of all kinds, and said that “life sustaining” activities don’t include religious services, although law firms, accountants, and the media by his definition fit into that life sustaining category.

EICHER: The attorney general you mentioned who disagreed with his governor on the law is Attorney General Daniel Cameron. 

At a press conference on Wednesday, Cameron laid out the case for why “one of these is not like the others.” I think it’s worthwhile to consider this, perhaps especially during a pandemic when maybe it’s a bit easier to major on urgent things and lose track of first things.

What he said is really important and it’s worth more than a mere soundbite. It’s a long statement and we’ve cut it back a bit, to keep it under two minutes.

Kentucky AG Daniel Cameron:

CAMERON: Simply put, the current prohibition against in person church services is, in the view of this office, unconstitutional. I’m reminded of this every time I drive by a big box store and see dozens of cars. I’m also reminded of this every time I read that the governor has ordered law enforcement to record the license plates numbers of people who simply want to worship and practice their faith. 

My friends, churches deserve equal treatment commensurate with their First Amendment rights. Corporate worship is essential and central to many faiths and finds a special place in the Constitution, a place that we must defend. Even in the midst of a pandemic the Constitution must be given its proper meaning.

The Constitution is not suspended in times of crisis. I think that the orders that have been put in place by the governor have been singling out churches. I don’t believe they are narrowly tailored. So I find that the Constitution protects churches, that the Constitution allows for churches to be open, assuming that they’re able to abide by the CDC guidelines.

Let me analyze a bit of what General Cameron is saying here, because constitutionally, it’s crucial: If the government needs to interfere in any way with a right under the First Amendment, it must tread very carefully.

Americans have certain rights, and our government must jump through several hoops before it can burden those rights. That means the government has to show the law meets a compelling government interest, and that regulation to achieve that interest is using the least restrictive means. 

Here, the stated government interest is to flatten the coronavirus infection rate so as not to overwhelm hospitals. That’s a compelling government interest, and except for some hot spots like New York City, it’s been very successful.

EICHER: Then the next question the government must ask, is the rule to protect public health narrowly tailored to achieve the compelling goal? Narrowly tailored is another way to say, is it the least restrictive way to do it?

I think what General Cameron is saying, and many others, is when government decides what is “essential” and excludes religious services, that’s a problem.

REICHARD: Right. I’ve heard perhaps a better question for the government to be asking is “Is this activity reasonably safe?” Rather than “Is it essential?”  

Nothing is 100% safe, of course. But if “essential” doesn’t include Constitutional protections, then we’ve lost that measure of safety against government overreach.

On Saturday, the 6th U.S. Circuit Court of Appeals held that Governor Beshear of Kentucky cannot prevent drive-in church services. The judges wrote, quote,  “it’s not always easy to decide what is Caesar’s and what is God’s and that’s assuredly true in the context of a pandemic.” End quote.

Assuredly true, and always necessary under our system, crisis or no.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky) Clouds roll over the Supreme Court at dusk on Capitol Hill in Washington, Sunday, May 3, 2020. 

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