The Daily Signal - How a DC Court Sided With a Church That Wants to Meet, Not the Mayor

Episode Date: October 14, 2020

Churches in the nation's capitol either haven’t been able to meet in person or have had extremely limited ability to do so because of COVID-19 restrictions imposed by D.C. Mayor Muriel Bowser. Capitol Hill Baptist Church went to court against the mayor in September, and just achieved a big win for religious freedom. Joining the podcast to discuss is Hiram Sasser, executive general counsel for First Liberty Institute, which represented Capitol Hill Baptist. We also cover these stories: Senate Democrats and Republicans question Judge Amy Coney Barrett during the second day of her confirmation hearing before the Judiciary Committee. During the hearing, Barrett says she owns a gun but that fact wouldn't interfere with her judgment in deciding Second Amendment cases.  Sen. Dianne Feinstein, D-Calif., presses Barrett on how she would decide abortion cases.  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 Wednesday, October 14th. I'm Virginia Allen. And I'm Rachel Del Judas. Due to coronavirus restrictions from D.C. Mayor Memorial Bowser, churches in Washington, D.C. haven't been able to meet in person or have had extremely limited ability to meet. In September, Capitol Hill Baptist Church in D.C. filed a lawsuit in the U.S. District Court for the District of Columbia to seek relief from Mayor Bowser's current order regarding places of worship. Hiram Sasser, Executive General Counsel for First Liberty Institute, who oversees First Liberty's litigation and media efforts, joins me on the Daily Signal podcast to discuss. Don't forget. If you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now, onto our top news.

The second day of the Senate Judiciary hearing for Judge Amy Coney Barrett began Tuesday morning. Barrett was asked by Senator Patrick Leahy, Democrat of Vermont, if she would recuse herself from a vote on the election if she was confirmed and if the presidential election did ultimately end up before the Supreme Court. Leahy said to Barrett, per the hill, but the president expects you to decide with him in an election dispute and added the recusal statute requires recusal where impartiality might reasonably be questioned. Barrett responded saying, I commit to you to fully and faithfully applying the law of recusal. And part of that law is to consider any appearance questions, but I cannot offer a legal conclusion right now about an outcome of the decision I would reach, per the Hill.

During Tuesday's hearings, Barrett said she owns a gun, but said the fact that she has a firearm would not interfere with her judgment in deciding on Second Amendment cases. Here's the exchange between Senator Lindsay Graham, chairman of the Senate Judiciary Committee and Barrett, VSD Span. When it comes to your personal views about this topic, do you own a gun? We do own a gun. Okay.

All right. Do you think you could fairly decide a case even though you own a gun? Yes. All right. Senate Judiciary Committee ranking member Diane Feinstein, Democrat of California, pressed Judge Amy Coney-Barritt on Tuesday about how she would vote on abortion cases. Feinstein asked Barrett, do you agree with Justice Scalia's view that Roe was wrongly decided? Barrett responded per PBS Newshour. Senator, I completely understand why you are

asking the question, but again, I can't pre-commit or say yes, I'm going in with some agenda because I'm not. I don't have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come. Feinstein continued to press Barrett over the abortion issue, and Barrett once again articulated her position, per PBS news. I can't express views on cases or pre-commit to approaching a case any particular way. Barrett said the death of George Floyd on May 25th after Derek Chauvin, a Minneapolis police officer pressed his knee against Floyd's neck for over eight minutes, was very personal

for her and her family, as she has two black children adopted from Haiti. Here is her exchange about Floyd with Illinois Democrat Senator Dick Durbin via CNN. Have you seen the George Floyd video? I have. What impact did it have on you? Senator, as you might imagine, given that I have two black children. That was very, very personal for my family. Jesse was with the boys on a camping trip out in South Dakota,

so I was there, and my 17-year-old daughter, Vivian, who's adopted from Haiti, all of this was erupting. It was very difficult for her. We wept together in my room, and then it was also difficult for my daughter, Juliet, who's 10. I had to try to explain some of this to them. I mean, my children, to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence. And for Vivian, you know,

to understand that there would be a risk to her brother or the sons she might have one day of that kind of brutality has been an ongoing conversation. It's a difficult one for us like it is for Americans all over the country. Special FBI agent Richard Trask said Tuesday during a hearing in Michigan that the same group of men who were arrested last week, for planning to kidnap Michigan's Democratic Governor Gretchen Whitmer, we're also discussing kidnapping Virginia's Democratic governor Ralph Northam. Trask explained that during an anti-government parliamentary group's June meeting in Ohio, the group discussed possible targets, taking a sitting governor,

specifically issues with the governor of Michigan and Virginia based on the lockdown orders. Northam spokesman Alina Yermoski said in a statement on Tuesday that at no time, was the governor or his family in imminent danger. Now stay tuned for my conversation with Hiram Sasser, Executive General Counsel for First Liberty Institute on Capitol Hill Baptist Church's Religious Liberty Win in the U.S. District Court for the District of Columbia. I want to tell you all about the latest daily signal documentary I produced. I recently sat down and spoke with former students and three former clerks of Supreme Court nominee Amy Coney Barrett. They shared about what it was like to work under Judge Barrett, thoughts on her judicial philosophy and perspective on how the media has covered the judge and mother of seven.

Head to DailySignal.com to watch. I'm joined today on the Daily Signal podcast by Hiram Sasser. He's the Executive General Counsel for First Liberty Institute where he oversees First Liberty's litigation and media efforts. Hiram, it's great to have you with us on the Daily Signal podcast. Hey, thanks for having me. Well, it's great to have you with us. So you all at First Liberty just experienced a really big win for religious freedom in

Washington, D.C., of all places, actually. Can you tell us a little bit about what happened? Well, sure. We represent Capitol Hill Baptist Church, and they've been meeting in Virginia in a field, an open air for quite some time. They have a socially distanced and wear masks and that sort of thing. But they feel called to do two things by the Lord. One is to meet in District of Columbia, where they were called to be. And secondly, that they must meet together all at once as one church, not to use multiple services or things of that nature. And so they tried to find some way to work with the District of Columbia to try to find a way

they could meet outdoors only, everyone to be properly distanced and masked, and they just weren't making any headway with the District of Columbia in terms of trying to find some sort of resolution to that problem. And so ultimately, after their application for permission to meet had been rejected, we had no choice but to file a lawsuit to get the court to enter an order to allow us to be able to start that process of meeting in District of Columbia. and that's what ended up ultimately happening. Well, as you mentioned, Capitol Hill Baptist Church did file a lawsuit against the D.C.

Mayor's order. And can you talk a little bit about what was in Mayor-Mill-Bauser's order and how it affected CHBC? Well, sure. The orders have a cap of 100 people to be able to meet. And unfortunately, that order was not just applied and did not just apply to, indoor gatherings, but also applied to outdoor gatherings. And so that was a significant problem. There's been some carve out and some exceptions that had been made. For example, for farmers markets, there was a nightclub and some other things. But that was the big obstacle for the church being able to

meet in District of Columbia. So before we get more into the case and what happened, how are other churches in D.C. similar to CHBC affected by the mayor's order? Well, I mean, every church that wants to meet is obviously affected or any kind of religious institution that wants to meet in person, whether indoors or outdoors, is affected by the order. Now, what we asked for for Capitol Hill Baptist Church was just for the exception for Capitol Hill Baptist Church itself. And the reason I think that's important is that all religious liberty cases, especially under the Religious Freedom Restoration Act, have to be adjudicated on a case-by-case basis. And so, you know, for Capitol Hill, their commitment to certain CDC recommended safe practices and the fact that they want to do it outdoors are facts that are pretty important to the case, I think, and also are, you know, unique. And so I think to the extent people might want to know how this opinion is going to

affect other religious institutions, I think that it gives them a leg up, but obviously they're going to have to still seek their own individual relief based upon their individual circumstances. Well, Harvey mentioned the Religious Freedom Restoration Act, and then Judge, Judge Sherry, McFadden had mentioned how this violated the Religious Freedom Restoration Act. you talk about a little bit more how it did violate that and then also what RFRA is to begin with. Well, sure. The Religious Freedom Restoration Act was a federal law that was passed in 1993. In order to, in essence, restore religious freedom to the same equal playing field as like freedom of speech and freedom of press and another First Amendment rights. the Supreme Court had an unfortunate decision in 1990 that ended up causing some problems for religious liberty being able to stand on equal footing with the other rights that are enumerated in the Bill of Rights.

And so the Religious Freedom Restoration Act was designed to fix that. And that applies, and I won't get into all the case history as to why this is so, but it only applies as to the federal government. government. And of course, District of Columbia is part of the federal government. And how the Religious Freedom Restoration Act works is that it doesn't guarantee a particular outcome. It just guarantees a process. And that is that if there's a government regulation that substantially burdens of religious activity, like here, where you're not being the government's rule is prohibiting you from fulfilling your religious mission and religious calling, then what ends up happening is the government has to show up with evidence to demonstrate both a compelling governmental interest

and that they are advancing that compelling governmental interest with the least restrictive means possible, so the least intrusive to religious liberty. What ended up happening here is that for whatever reason, the District of Columbia did not offer any kind of real medical evidence as to why an outdoor religious assembly was any different than some of the other outdoor activities that they had already allowed. And so as a result, they weren't able to demonstrate that they have this compelling interest. I think the affidavit they had submitted just fell really short of that standard. And so then what ended up happening was they, they,

You could go to the next prong. You don't have to, but whether or not they're advancing this is the least restrictive means. And when there are other ways such as socially distancing and masking and those sorts of things that the church was committed to, when those other means are available that still allow the church to meet, then the government cannot restrict the church's ability to meet. So that's what ended up happening in the case. And that's how the Religious Freedom Restoration Act works. Well, taking a step back from the opinion for just a second, we're going to go right back to it. But just looking at this case as a whole, what would you say was the most difficult part of the case? I think the most, actually, strangely, the most difficult part of the case was the church did not want to have to sue the District of Columbia. they, you know, I think they take it very important.

It's a very important part of their faith outreach to get along with their neighbors and be a good neighbor. I think they've tried really, really hard to do that and to go through the process that the District of Columbia had offered them by seeking a waiver. And so I think it was just very painful for them to have to sue the district. of Columbia because it was sort of a situation of a last resort. And I even think even to this day, I think there are ways that the church would gladly want to partner with the district in order to try to bring this all to a resolution that would allow them to fulfill their religious mission in the way that the Lord has called them to do.

But I think that's the hardest part. The hardest part was just deciding that there is no. other choice. I think a lot of religious institutions face that dilemma, which is they want to be good neighbors. They don't want to litigate against their city, their hometown, if they don't have to. And so I think making that decision is many times very, very difficult. Well, in the opinion, the judge said, it is for the church, not the district, or this court, to define for itself the meaning of not forsaking the assembling of ourselves together. Were you surprised by this perspective? No, that's pretty well-settled law.

And, I mean, that's, you know, you can go to Thomas Review Board. You know, that was back in, you know, what was 80, early 80s, at least before 85, I think. But, you know, there's plenty of case law that it is not for courts to determine, for example, the centrality of a religious belief of a particular religious adherent. And so as a result, I don't think that that was a remarkable observation. I think that that's pretty well-settled law. What was scary was that it has been scary is that there's been a lot of judges that have, for some reason, missed that in recent years.

And so it was good to see that Judge McFadden, as well, well read into the existing constitutional jurisprudence on that issue. Well, Harvey, we're talking about using the least restrictive means necessary in working with these regulations from Mayor Bowser. And the opinion pointed out that the district has failed to offer evidence at this stage showing that it has a compelling interest in preventing the church from meeting outdoors with appropriate precautions. And so given the perspective that was in the opinion, why do you think Mayor Bowser has

been so successful in mandating these regulations on D.C. churches? I think a lot of it is there's a time factor involved, but there's also, there's an individualized assessment. One of the most important observations about the Religious Freedom Restoration Act was made by Chief Justice Roberts in the UDV versus Gonzalez decision. It was a unanimous decision, although I don't believe Justice Alito participated because I don't think he was present for oral argument because he was just coming onto the bench at that time. But Chief Justice Roberts said that the correct question that has to be asked and answered about whether or not the government has a compelling interest in restricting religious liberty

is not what's the government's generalized interest in its overall situation. So in that case, it was preventing the use of illegal drugs. But rather, the real question is, what is the government's compelling interest and not providing an exception to this particular religious adherent that is before the court at that time? And I think that that's a very difficult question for the government to answer usually. And they're going to have to have really strong evidence. But I do think that even though most religious institutions have always been in a very strong position versus the district, I just don't think that most

most people just don't want to have to sue the government in order to have their freedom. I mean, it's one of those sort of weird things that we have as an American, which is that we Americans is we sort of want to just kind of enjoy our freedom and not have to not have to fight about it. And I think most people are that way. And I just think that there's a lot of religious institutions that have just not wanted to step up and challenge the district. And certainly Capitol Hill Baptist Church did not want to have to do that either. It's a very difficult decision for any religious institution. Well, what do you think this decision has to say about the state of religious freedom? While the opinion does affirm religious freedom, what does it say about the threats to

religious freedom given the fact that CHBC had to sue in the first place? Yeah, I think that you know, one of the things that Judge McFadden points out in his opinion is that at some point that the, you know, you have to let up the slack that's in the line. That's kind of his phrase that he's got there in his opinion, meaning that as the, as any kind of pandemic or crisis or whatever carries on over time, the normal constitutional rules sort of reemerge and apply. So the government sort of has a freer hand in a very short-term sense. But as things go long, that free hand starts wavering, and the government has to start adhering to traditional constitutional principles much more closely.

So I think that this opinion helps sort of herald in what I would call the new phase of constitutional scrutiny, which is that we can't have rules that deviate from constitutional norms carry on indefinitely. They have to be measured against our traditional constitutional measuring sticks. And I think that that doesn't always mean everyone's going to win if they challenge a regulation, even if applying normal constitutional rules. but it does mean that the normal rules need to reemerge and start governing how we interact with the government. Well, as we wrap up here, two last things. Do you think we'll see more churches fellow suit? And then lastly, is the legal battle over for CHBC or what's next? Well, I don't know what other religious institutions are going to do.

We have received word from many, many religious institutions, not in the District of Columbia, but all across the country talking about how they look forward to a siding to this case going forward. And in fact, the Fifth Circuit is already three days, you know, the inks barely dry on the opinion, and they've already cited it in an opinion that just came out of the Fifth Circuit last night. So I think that there's a lot of progress being made on that front. But as to Capitol Hill Baptist Church, I think that really the ball is, in the court of the District of Columbia, our client has been very, very committed to a peaceful resolution. And I think they're still committed to that. And hopefully, in light of this decision,

we can reach some sort of final solution to this problem and resolution that can work for everybody. Well, Haram, thank you so much for joining us on the Daily Signal podcast and unpacking this case for us. It's been great having you. And thanks for having me. And that'll do it for today's episode. Thanks for listening to The Daily Signal Podcast. You can find the Daily Signal podcast on Google Play, Apple Podcasts, Spotify, and IHeartRadio. Please be sure to leave us a review and a five-star rating on Apple Podcasts and encourage others to subscribe.

Thanks again for listening and we'll be back with you all tomorrow. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Kate Trinko and Rachel Del Judas, sound designed by Lauren Evans, Mark Geinney, and John Pop. For more information, visit DailySignal.com.