The Daily Signal - Here's How COVID-19 Restrictions Curb Religious Freedom

Episode Date: December 4, 2020

Exactly how have COVID-19 restrictions on churches and other places of worship affected First Amendment freedoms? What happened when the Supreme Court last week blocked New York Gov. Andrew Cuomo's limits on religious gatherings? What about the situation in California, where Godspeak Calvary Chapel's pastor, Rob McCoy, reportedly turned his church into a "strip club" so it could stay open? Zack Smith, a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation, joins "The Daily Signal Podcast" to discuss these angles and more. We also cover these stories: President Trump criticizes Attorney General William Barr for saying he hasn't seen evidence of widespread voter fraud in the presidential election.  The president still wants to repeal a legal provision that protects Facebook and Twitter from liability, although other Republicans aren’t keen on doing so.  The COVID-19 vaccine gets promotional star power as former Presidents Bill Clinton, George W. Bush, and Barack Obama say they're willing to get the shot to help build Americans' trust in it. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Friday, December 4th. I'm Virginia Allen. And I'm Rachel D. Judas. How have COVID-19 restrictions on churches specifically affected First Amendment freedoms? Have churches been treated differently and more unfairly than businesses and other institutions? Zach Smith, a legal fellow in the Me Center for Legal and Judicial Studies at the Heritage Foundation, joins me today on the Daily Signal podcast to discuss. And don't forget, if you're enjoying this podcast, please be sure to leave a review. or a five-star reading on Apple Podcasts and encourage others to subscribe.

Now onto our top news. President Trump criticized Attorney General Bill Barr for saying that he has not uncovered evidence of widespread voter fraud in the 2020 presidential election. On Tuesday, Barr told the Associated Press, to date, we have not seen fraud on a scale that could have affected a different outcome in the election. Trump told reporters in the Oval Office Thursday

that Barr hadn't done anything, so he hadn't looked. When he looks, he'll see the kind of evidence that right now you are seeing in the Georgia Senate. They are going through hearings right now in Georgia, and they are finding tremendous volumes. So they haven't looked very hard, which is a disappointment, to be honest with you, because it's massive fraud. Following Barr's remarks to the Associated Press, the president's lawyers Rudy Giuliani and Jenna Ellis issued a statement saying, with the greatest respect to the Attorney General, his opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud. President Trump still wants to repeal Section 230, even though some Republicans aren't keen on doing so.

On Thursday, Trump tweeted, looks like certain Republican senators are getting cold feet with respect to the termination of Big Tech Section 230, a national security and election integrity must. For years, all talk, no action. Termination must be put in defense bill. Section 230, which is part of the Communications Decency Act, says that providers or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. While Trump wants Section 230 to be repealed as part of the Annual National Defense Authorization Act, Senate Armed Services Community Chairman

James Inhoff says it's unrelated. 230 has nothing to do with the military in Hofstead via the Hill. I agree with his sentiments, but you can't do it in this bill. That's not part of the bill. The COVID-19 vaccine is getting some promotional star power. Former President's Barack Obama, George W. Bush, and Bill Clinton say that they're willing to be vaccinated in order to build America's trust in the coronavirus vaccine. During an interview release Wednesday on Sirius XM's The Joe Madison Show, President

Obama said he would even take the vaccine on camera. If you are elderly, if you've got a preexisting condition, if you're a frontline worker, if you're a medical worker, if you are in a grocery store, you know, if you're a first responder, you should take that vaccine. And I promise you that when it's then made for people who are less at risk, I will be taking it and, you know, I may end up taking it on TV or having it filmed just so that people know that, you know, I trust this science. After Obama's remarks, Freddie Ford, Bush's chief of staff, told CNN that Bush would also be willing to be vaccinated on camera.

and Bill Clinton's press secretary, Angela Urina, told CNN that the former president will definitely take a vaccine as soon as available to him, based on the priorities determined by public health officials. And he will do it in a public setting if it will help urge all Americans to do the same. Facebook says it will remove posts about COVID-19 vaccines that it believes are false. We will remove false claims that COVID-19 vaccines contain microchips or anything else that isn't on the same. the official vaccine ingredient list, Facebook said in a statement via USA Today. We will also remove conspiracy theories about COVID-19 vaccines that we know today are false, like specific populations are being used without their consent to test the vaccine's safety. It won't, however, begin removing these posts immediately because the social media giant says that, since its

early in facts about COVID-19 vaccines will continue to evolve, we will regularly update the claims we remove based on guidance from public health authorities as they learn more. The city of Los Angeles is under new lockdown restrictions announced Wednesday by Mayor Eric Gersetti, per Where's the Buzz TV. My message couldn't be simpler. It's time to hunker down. It's time to cancel everything. And if it isn't essential, don't do it. Don't meet up with others outside your household. Don't host a gathering. Don't attend a gathering. and following our targeted safer at home order. If you're able to stay home, stay home. The new orders require citizens to stay home amid rising COVID-19 infection numbers.

Non-essential businesses are required to close, and gatherings are prohibited with the exception of outdoor religious services and protests. Now stay tuned for my conversation with Zach Smith on threats to religious freedom in the time of the coronavirus pandemic. Are you looking for quick conservative policy solutions to current issues? Sign up for Heritage's weekly newsletter, The Agenda. In the Agenda, you will learn what issues Heritage Scholars on Capitol Hill are working on, what position conservatives are taking, and links to our in-depth research.

The agenda also provides information on important events happening here at Heritage that you can watch online, as well as media interviews from our experts. Sign up for the agenda on heritage.org today. I'm joined today on the Daily Signal podcast by Zach Smith. He's a legal fellow in the Meese Center for Legal and Judicial Studies at the Heritage Foundation. Zach, it's great to have you with us on the Daily Signal podcast. Thanks so much for having me on, Rachel. I really appreciate it.

Well, it's great to have you with us. To start off, we're going to impact in a moment the ruling from the Supreme Court last week, which blocked New York, Governor Andrew Cuomo's limits on religious gatherings. But before we get to that, we were talking and you wanted to highlight two previous cases, which preceded this one. Can you talk about those two cases and what happened there? Sure, happy to do it. You know, this has really been a tension we've seen since the beginning of the COVID pandemic. Executive orders by governors and local officials restricting businesses, houses of worship, church's abilities together. And so these cases almost immediately started being filed in the lower federal courts and eventually made their way up to the Supreme Court.

So in May of this year, there was a case out of the case out of the court. of California involving the South Bay Pentecostal Church. In the South Bay Pentecostal case, five of the justices cited with California's governor against the South Bay Pentecostal Church and basically said that the California COVID-related shutdowns and restrictions were not infringing on their First Amendment free exercise rights, and they weren't going to issue an emergency injunction that would allow the church to meet. And in that case, Chief Justice Roberts took it upon himself to ride his own concurrence, kind of laying out his view of these emergency restrictions and the role that judges should play when reviewing them. And he basically laid out a vision where he said

judges should be very deferential to elected leaders who are having to make very difficult decisions in a time of crisis. Well, unfortunately, a lot of lower federal courts took the Chief Justice's language from his concurrence, which wasn't binding in a anyway, and really ran with it. And so we saw a lot of, in my view, very bad opinions coming out of lower federal courts after that who were just kind of using that language as a rubber stamp without really thinking through the issues in their own cases. And so eventually another case out of Nevada made its way back up to the Supreme Court in July of this year, Calvary Chapel, and they were challenging also the Nevada governor's restrictions that he placed on houses

of worship and churches and other religious institutions, especially. especially compared to secular institutions in Nevada. The capacity restrictions on churches, houses of worship, were much more onerous than they were on casinos, gambling parlors, and a whole host of other types of secular businesses. And we saw some sharper divisions in that case, but again, it was a five to four decision where the justices declined to intervene and ultimately sided with Nevada's governor. And in that case, Justice Alito authored a dissent, Justice Gorsuch authored a dissent, and Justice Kavanaugh also authored a dissent. And so this leads us to the decision from last week in November 25th, the day before Thanksgiving, where the court issued a ruling where this time five of the justices cited with a Jewish synagogue and also the Roman Catholic Dioces of Brooklyn against Governor Andrew Cuomo and his, very restrictive lockdown orders. And so it is very encouraging to see that. You know, this is the first one of these types of decisions that the court has ruled on since Justice Barrett took the

bench. And again, it was very encouraging. And I hope that this will certainly signal a shift in the court's attitudes to these types of cases. Well, Zach, you mentioned this ruling being encouraging. And I wanted to just briefly read one of my favorite parts of the opinion, which was this line from Justice Neil Gorsuch, and he said, it is past time, past time to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops, but shut our churches, synagogues, and mosques. So, Zach, what was your perspective on this opinion from Neil Gorsuch? Well, Justice Gorsuch, he wrote a concurrence. So it wasn't the opinion of the court. It's just

kind of expressing his own views. But, you know, Justice Gorsuch, he really, has some memorable lines, certainly had memorable lines in this opinion as well. You know, he also said, even if the Constitution has been on a vacation to this point, it can't become a sabbatical. And, you know, I think one of the interesting things is always tough to tell, you know, the inner dynamics or kind of the inner workings of the court or how the justices are viewing certain issues, especially as a group. But we really saw some sharply and very direct criticism from Justice Gorsuch of the chief Justice's South Bay concurrence that kind of got this whole ball rolling in terms of courts being very deferential to elected officials, even in very extreme cases. And so we saw Justice Gorsuch

criticizing the Chief Justice over that issue. Justice Roberts also, he was in dissent in this case, and he would have decided the case on a very technical, very narrow procedural issue. Basically, after the Catholic Diocese and the synagogue filed their lawsuits, Governor Cuomo changed the restrictions in place. But there was nothing preventing him from reimposing them again. But the Chief Justice said because the restrictions were technically not applicable at this time to those churches and other religious groups, he would have not decided this case essentially right now. But again, Justice Gorsuch was very direct, very critical of the Chief Justice, and certainly takes a more robust view of First Amendment freedoms during the pandemic. Well, not surprisingly, Justice Sonia Sonoma or she had a different perspective than Justice

Gorsuch, and she wrote that bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. So, Zach, what is your perspective on what she wrote about and where she sees this? Is there something that you'd like to point out about what she had to say that you think could be misled in this area? Well, I think we have to take a step back and kind of take the 10,000 foot perspective and see where this fits in with the court's larger jurisprudence, the larger issues it's grappling with right now. There's a case, Employment Division v. Smith, that talks about the standards a court has to use when reviewing restrictions that governments place on free exercise, an individual or groups free exercise. of their own religious beliefs. What Employment Division v. Smith said is that at a minimum, as long as courts are treating religious institutions, religious practices as favorable,

as long as they're not treating religious institutions worse than comparable secular institutions, that generally those laws will be upheld. They receive the lowest level of review, something called rational basis review. And actually, the Supreme Court heard a case this term, Bolton v. City of Philadelphia, where they're being asked to overrule that decision and basically require the government any time they restrict someone's free exercise of their religion to have a really compelling reason for doing so and really do it in the least restrictive way possible. And so a lot of the disputes we've seen in these cases is whether, in fact, religious institutions are being treated less favorably than secular institutions.

And so I think what we'd see is that the five justices in this Roman Catholic Diocese case out of New York says that, yes, they are being treated less favorably. You know, you can go to the grocery store, you can go to a bicycle repair shop, you can go get acupuncture, but you're going to be treated far more restrictively if you seek to go to church and sing or gather with your fellow congregants. And so I think that's really where the split is right now. the five justices view religious institutions and individuals being treated less favorably than secular institutions, and the four justices in dissent, it seems, don't see it that way.

They see that religious individuals are being treated the same as secular institutions, and that there are differences between going to church and going to the bicycle repair shop. Well, after the Supreme Court's decision, Cuomo came out and called it irrelevant, Zach, isn't irrelevant? Well, I certainly wouldn't think so. He had rescinded the restrictions after this case was filed. But again, before the Supreme Court's decisions, there was nothing preventing him from reimposing those restrictions again. So I think that was really just, you know, my personal view is a little bit of posturing by Governor Cuomo.

Well, looking at everything from more of a wide-angle lens, how would you say in general COVID-19 restrictions on churches specifically, have affected First Amendment freedoms? Well, I think until this decision last week came out, we'd seen some really troubling trends, again, with courts being very deferential to elected leaders and allowing even, you know, very, very restrictive measures for extended periods of time to be put on churches and their parishioners and their ability together and really freely exercise their religious beliefs. But again, hopefully this decision last week,

kind of signals a turning point where now the court will really strictly scrutinize those impositions on religious practices and be less deferential to them, frankly. In another church situation in California, Godspeak, Calvary Chapel, Pastor Rob McCoy reportedly turned his church into a strip club so that it could stay open, and he reportedly engaged in a clean version of a strip tease before taking off his tie and congregants report reportedly held up these $1 bills. So, Zach, can you tell us what you know about the situation? and what went on here, why this pastor chose to do this?

Well, it really speaks to the sad state of affairs with a lot of these COVID restrictions right now. And I believe from what I've read and what I've seen, the pastor did this because under Governor Newsom's COVID restrictions, strip clubs were treated more favorably than churches and synagogues and other religious institutions. And so to be treated more favorably, he had engaged in his clean strip teas, which I believe involved him taking off his necktie at the pulpit, and again, so that he and his congregants could come together and freely exercise their religious beliefs. But it's really absurd that it had to come to that.

And again, I'm hopeful after the Supreme Court's decision last week, that those types of things will be increasingly less necessary. Well, in Kentucky, there's a fight going on over religious schools where Kentucky Attorney General Daniel Cameron has asked the Supreme Court to stymie Governor Andy Beshear's ban on in-person classes. Can you tell us a little bit about what's going on here? Sure. So the Kentucky governor, who is a Democrat, he issued a very restrictive stay-at-home orders, basically shuttering all elementary schools and secondary schools in the state for an extended period of time, and that included public schools as well as private schools, especially private religious

schools. And so one of these schools in particular, the Danville Christian Academy, said that, look, this order imposes on our ability to freely exercise our religious beliefs. And they talked about why that was so, students going to chapel, communal times of prayer, and other aspects that really just couldn't be done remotely. And so they filed a lawsuit, and shortly before, I think it's the same day or shortly before, the Supreme Court issued its decision in the New York case, a federal district judge in Kentucky reached essentially the same conclusion that the Supreme Court did, that this unduly restricted the Danville Christian Academy's ability to freely exercise their religious beliefs.

Now, fortunately, the governor appealed that order to the Sixth Circuit Court of Appeals, and the Sixth Circuit disagreed and said that the COVID restrictions could stay in place. And the reason they said that is they said that the order didn't discriminate between secular schools and religious schools. It treated all of the schools the same, whereas the district court had said, well, he's looking at it from a slightly different angle and said that the religious schools are being treated less favorably than other types of gatherings where large groups of people gather and can be together and still, you know, with appropriate restrictions and safe practices, can still go about their business. And so after the adverse ruling in the Sixth Circuit Court of Appeals, Daniel Cameron, the Republic, Attorney General of Kentucky, basically filed a motion with the Supreme Court asking them to, again, issue an emergency injunction that would prevent the governor's orders from staying in effect and restricting the ability of religious schools in Kentucky together and fulfill their free exercise rights.

Well, Zach, lastly, how would you encourage, and I guess what would you say to people in states across this country, given the situations we talked about in D.C., California, Kentucky, and other states who are concerned about the attacks that we've seen on religious liberty, what would you say to them? Well, I think it's important to remember that the Constitution and its protections of our fundamental rights were really made for times of distress, times of emergency, and that's when a lot of these protections really are the most important. And I think we all should be encouraged by the Supreme Court's New York ruling. A lot of these issues are still working their way through the lower federal courts, so it's something worth keeping an eye on.

But really, as a first step, I think it's important to let our elected leaders know that we expect them, too, to follow the Constitution, to respect our fundamental rights, and at a minimum, treat churches, synagogues, and other religious institutions at least as favorably as things like acupuncturist and strip clubs. Well, Zach, thank you so much for joining us on the Daily Signal podcast. It's been great having you with us. Thanks so much for having me on. I really enjoyed it.

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