Can Pastors Defy Stay-at-Home Orders?

In this country, churches are trying online services. I want you to think about your future, drive through communions, pray that you will discover Her with and even outdoor services with pastors preaching from flatbed trucks and church members parked in cars with their radio's tuned to a low power FM transmitter to hear this and a God's people and said amen. But some pastors are defying governor's day at home orders, saying it violates religious freedoms and their constitutional rights.

Louisiana pastor Tony Spell was arrested last month for holding services in violation of the governor's stay at home order, but he still held services for hundreds at his church on Palm Sunday. People's hope is in the House of God. If they do contract the virus, if they have fears of the virus. The church is more essential now than

ever to pray with people. Kentucky Governor Andy Basher had dire words for another pastor, Jack Roberts, after he opened his church doors for services spread the virus, and at Christmas he's going to have fewer people in his congregation. Journing me is Richard Garnett, professor at the University of Notre Dame Law School. So, rick, can governors order churches

not to hold services? Yes, they do have the power to issue day at home type regulations, and they can limit large in person gatherings even if those limits are applied to religious gathers. Now, what they couldn't do is it would be infamous able to target churches for special regulations. If you are a governor, you couldn't say, you know, it's fine to keep open the baseball games and the bowling leagues, but the churches they've got all shut down,

So you can't target them. You can't discriminate against them. But if you have a general neutral rule against public gatherings, you're allowed to apply that to churches as well. And that's true even in states that have religious freedom laws

like the Religious Freed Administration Act. Because any court I can imagine is going to say that the burden on this religious exercise, which is it is a serious burden, especially this time of year, that that burden satisfies the so called strict scrutiny requirement that a lot of these laws have. More than forty state governors have issued stay at home orders, but about fourteen of them have exempted religious gatherings. The Florida governor said he didn't think he

could tell a church not to hold services. Yeah, I think he's probably wrong about that. Governors do have the power again to limit large gatherings of people in order to serve this public health emergency against so long as they're not targeting churches. But at the same time, it's true that governors have the authority if they want to provide limited exemptions in order to take account of how

serious and important religious services are too many people. I'm not a public health expert, so I wouldn't purport to say whether those exemptions are good policy or not. But I don't believe they're legally required. And there's been a lot of variation from state to state in terms of how these orders have been crafted. Some governors have left open parks, others have closed them, some have set the thresholds on the gathering at different levels. That's to be

expected in the federal system. I think the key point for churches is that governments are not allowed to discriminate against religious services, but they are allowed to include religious gatherings under the heading of these larger gatherings. That what would be problematic is if a governor said, I'm going to exempt all kinds of other gatherings and clubs from the state at home order, but going to really stick it to the churches. You can't have that kind of

singling out or discrimination against religious services. In the state of Texas, three pastors are suing. They're challenging the constitutionality of us stay at home order, and they cite the fact that gun stores are open for business as essential in Texas, so why shouldn't churches. Well, right, And basically what these pastors are trying to do is to make the argument that I was just describing that these stay at home orders are not neutral, they're not generally applicable,

that they're kind of picking and choosing and targeting even churches. Now, you know, what's what's essential is going to be somewhat in the eye of the beholder. But it is true that if a particular order is exempting all kinds of gatherings and really only cracking down on religious ones, that

is going to raise some judicial eyebrows. In my own state of Indiana, you know, we don't have an exemption for religious gatherings, so they're they're shut down if there are over ten people, I believe, but that's been applied broadly in a neutral way. I suspect that's going to be what happens in Texas as well. For what it's worth, that these challenges will be unsuccessful because courts are not going to want to second guests, especially in a time

of a public health emergency. They're not They're not going to want to second guess the politically accountable decision makers who have to make these judgment calls about what needs to be open and what needs to be shut. In fact, a judge in Florida recently refused to order the beaches closed against the governor's order, saying that it really wasn't up to him to make that kind of a decision when there's a public health emergency. Yeah, I mean, the

way are kind of separation of powers ideas work. Whether it's the state level or the federal level, is courts are going to be pretty reluctant to engage in this kind of judgment call policy making, and they should be the role of a court, like in the religious freedom context, would be to say, okay, if let's imagine it's the state that has a of just freedom law, if these stay at home orders are imposing a substantial burden on

religious exercise, and again especially during Holy Wee can pass over, it seems like they are. Is that burden serving a compelling state interests? That's the kind of legal buzzword we used. And almost any court I can imagine is going to defer to the decisions of the relevant administrators or political officials. So it doesn't matter if it's a governor or it's a local official, let's say a mayor. Well, it gets kind of in the weeds because state law controls how

much power mayors have. But I think for our purposes as a general matter, it doesn't really matter. The local executive again I'm speaking generally, is going to have the authority, at least as a preliminary matter, to make the kind of cost benefit analysis that is behind these orders. How far up the chain of command a local officials decision can be appealed. That really varies from state to state

depending on how state government's structured. But certainly the governor, and this is you know, an ancient idea of the police power and so on, State legislators and governors are going to have a pretty broad power to respond to public health issues and order stay at home orders and other similar regulations. Let me ask you this rick, because let's just take the example of a pastor in Louisiana who health services on Palm Sunday despite being charged multiple

times with violating that state band. In some states and cities, they're charging these pastors, they're serving them with summons. Is I don't think anyone has been hauled off to jail yet. But that's a bad look, isn't it. I would think that for a lot of political officials, that would be a bad look, and they would very much want to

avoid that. At the same time, I suppose you could say that for a lot of religious believers, it's a bad look to see pastors and other religious leaders kind of deliberately flouting rules that public health officials are telling us are important in order to stop the spread of the virus. I think that kind of cuts both ways.

You know, in my in my own religious community, the Catholic bishops have been pretty united in saying like, look, we really Missmass this week, but these orders are legal and their temporary measures, and they're justified, and so you know, we have to find ways to be together spiritually that don't violate the rules. But you're certainly right. The last thing a political official wants is, you know, video of pastors getting hauled off to jail for holding church services.

But be that as it may. Officials are allowed to regulate large gatherings, and whether or not there are exemptions to those gatherings is going to be a political question that courts are probably going to defer to legislators on and to and to officials on. Has a Supreme Court ever ruled in a situation similar to this? Is there any case you can extrapolate from Well, it's it's tricky

to say similar. I mean, at one level, you could just say the famous Employment Division versus Smith stands for the general proposition that governments are allowed to issue neutral regulations even if they affect religious practice. Is but you can go back to earlier cases having to do with regulations in the interests of the public health, even when they burden religious practice. I think there's a famous one

called Prince versus Massachusetts from back in the forties. So let's you thank god that doesn't come up all that often. But I think the precedents that we have do support the ability of governments to issue orders like this and to apply them to gatherings, even if those gatherings are religious in nature. I just question whether this is going to be more fodder for the culture wars, more divisions science versus religion, and you know, some pastors even saying

that it's it's political persecution. Yeah, that's a risk, and I'm keeping an eye on that as well. I do think that it's important little perspective that is, at the vast majority of religious leaders in religious communities are, even though it's painful this time of year in particular, are complying with these orders. It's a very small subset of groups and leaders who have kind of some their nose

or you know, called into question. The scientific basis, my sentence, is a pretty broad consensus that at least for now, at the temporary measure, these limits on gathering are appropriate, So my hope is that it won't create this kind of bad feeling and skepticism, and also that religious believers who do have plenty of reasons to complain sometimes about burdens and government regulations, that someone who cares a lot

about religious freedom one doesn't want to cry wolf. There are threats to religious freedom out there, but this probably at least in my personal judgment, is not the most glaring one. This strikes me as being an occasion of where the regulations are reasonable and sensitive to the burdens that are being put on religious believers. Thanks Rick, that's Richard Garnett, professor at the University of Notre Dame Law School.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Broso. This is Bloomberg h