Will Supreme Court Expand Religious Rights?

religious rights? Joining me as Rick Garnett, a professor at Notre Dame Law School. Rick described the decision of the majority here, Yeah, so at the tricky question right out of the gate, because of course these decisions didn't come in the context of a case that the Court has agreed to hear and has held oral arguments and all that.

This is Sizurally. What's happening is that the church claimants are asking the Court to review a lower court decision which had upheld a bunch of these restrictions on gatherings and so on. And what the Court did was to basically enter and order for the time being. That left some of the California restrictions in place, but also lifted some of them while the case is playing out, so the situation is still very much fluid. This isn't you know, a Merit's decision like the kind you get in June

at the end of the court's term. This is basically the Court trying to sort of freeze the status quo until they can decide whether or not to take the full case. And I think it's tricky because on the one hand, you know, they want to provide guidance to the lower courts, but on the other hand, these aren't full opinions. And so one way to think about what these different opinions are is the justices are trying to

tell the lower courts what they're thinking right now. So the lower courts, when they get some more of these church closure cases, and they probably will, that they have a sense of what the Supreme Court wants them to do. Would you say that the way they came out is sort of a middle ground between the restrictions that California has and no restrictions all right, So the Court is

leaving in place some of California's restrictions. They said, we don't have enough information to get rid of California's limits on indoor singing. For example, California had some of the strictest limits on in person religious gatherings the country, like essentially in some parts of the state, all religious gatherings, you know, forget about a hundred people where there are zero people, as Chief says, as Roberts pointed out, we're

not permitted. And so I think it was that kind of outlier nature of that part of California's order that the Court said, you know, we're we're enjoining that that can't be enforced. That's too strict. But there's still plenty of time for more information to be gathered and presented. I'm sure the state will want to show why it's various restrictions limits on gathering, its limits on how many people can be in a place are necessary. And the Court made it pretty clear that it wants the state

to demonstrate that it's treating religious gatherings fairly. That is, that it's not treating religious gatherings worse than other kinds of gathering. So you know, the court's concerned as well if you're you're allowing people to go to big box retail stores, but you're not even allowing you know, five people to worship in a cathedral. They worry about that disparate treatment, that perhaps discriminatory treatment. So that's going to

be the real issue, I think going forward. And that was the concern that especially just as Gorset spelled out in his opinion that as he saw it, California was acting in too sweeping of a manner and it wasn't fairly comparing religious gatherings indoors to things like grocery shopping or what I do. So on one side of the spectrum of opinions, Justices Neil Gorst, Clarence Thomas, and Samuel Alito would have lifted all the restrictions on church services.

Let's discuss the four separate opinion. So the most supportive of religion, the most to the right, perhaps would be the opinion by Justice score such joined by Clarence Thomas and Samuel Lecho. So what just highlight what that opinion was about. Yeah, it's interesting that in today's categories, I suppose we're calling those opinions the ones that are on

the right. But the method of analysis that those justices are applying, it's one that we can trace to kind of the Court's liberals in the sixties, you know, and people like Justice William Brennan, where you know, Justice Brennan insisted that, um, when the government is regulating religious conduct, yeah, we're not just going to defer to regulator statements that these regulations are a good idea. We want evidence, We want actual demonstration that these regulations are nest to promote

a compelling interest. And that was the case that Justice, course it's joined by some others, as you said, wanted to lay out. He concluded on the basis of the record that we have that California was asking for too much deference, that it was asking just for a rubber stamp, and that when you're talking about fundamental rights, romans have

to provide more evidence. And his view, although obviously he's not an epidemiologist and he conceded as much, of course, his view was that California appears to be much more strict with gatherings of a religious nature and much less flexible with gatherings of a religious nature than it is with other times. So he points out, for example, look if what the experts are worried about is singing, which

can spread the droplets and put people at risk for COVID. Well, you could have a restriction that said, well, okay, you can't have singing and indoor worship, but they didn't do that. They just prohibited all indoor worship. You could imagine, just as course it said a restriction that said, you know, no more than x number of people, or there has to be social distancing or masking or plexi glass shields

or what have you. But what I think attracted Justice Course is just concerned was that the regulations on these indoor religious gatherings seemed so sweeping and absolute, and he says that that can't be justified on this record. This is just as any Coney Barrett's first separate opinions since she's been on the bench. So why did she write

a separate opinion? Yeah, I've heard some of that. I guess I would just urge people to think critically about these labels and how they apply to cases involving fundamental rights. It's not obvious to me that it's conservative rather than liberal to want to protect religious exercise rights. And then the other point, we just be that the disagreement that Justice Sperrit and Justice Kavanaugh had with Justice Scores such

as opinion is not a particularly big one. I mean, all nine justices, including Justice Kagan, they all agree that religious exercise is important, and they all agree that governments can't target religious activities for burdensome regulations. The disagreement really has to do with the amount of deference that courts should give to government officials when government officials claim that regulations are necessary, and the disagreement is just about which

activities are really comparable to others. Is the church service more like a concert or is it more like going to home depot that kind of thing. These disagreements are, they're significant, but I don't believe they're dramatic ideological differences. They reflect more, I think, just the difference of opinion about how to interpret the factual record. You know. I think what I see in Justice Parrett's opinion is not

an attack on what Justice Course such is saying. But it's just coming to a different conclusion, a different inference about some disputed facts. And now what about Justice Robert's opinion, Well, I take him to be pretty much on the same page as Justices Um, Barrett, and Kavanaugh. That is, some of these California He goes out of his way to say yes, of course, it's true the deference to public officials,

especially when you're dealing with an emergency, is important. And of course it's true that you know, in in good judicial conservative style, that judges shouldn't be in the business of thinking that they can second guess all policy decisions. So he wants to he wants to make that very clear.

But then he just he points to the kind of extreme outlier nature of California's restriction that that you know, even in the the huge Los Angeles Catholic Cathedral, which could set you know, thousands of people, you still can't have any in person worship. He just does he doesn't think that the record reflects that California is actually exercising epidemiological epidemiological judgment. That it's instead it's just kind of again doing a rubber stamp and taking the easy way

out and imposing a blanket restriction. So that's why um uh, he does what he does. He he wants to make it very clear that he doesn't think judges can or should micromanage local government's responses to diseases. Um But again he's being down a marker that at some point judicial scrutiny is crucial when you have regulations that appear to

be disregarding fundamental rights. Justice Elena Kagan wrote an opinion for the Liberals, and it was really impassioned and seemed to be critical of her colleagues are conservative colleagues in a way she doesn't usually do so. Justice Kagan is a great writer, has always and I do think there's a certain amount of passion and kind of urgency that comes through in her descent. But I don't think it crossed any lines in terms of not being respectful. I mean,

I think she tends to always observe that line. But basically her disagreement is not on the importance of religious exercise. You know, she opens her opinion by saying, yeah, of course, you can't treat religious exercise worse than you treat comparable psycular activities. But her two main teams are, first, we

should be more deferential to California state officials. And again, this is a disagreement with cors who's saying, look, yes, some difference is important, but we're talking about fundamental rights. We don't just defer to the cops when it comes to, you know, whether or not they have to respect Force fifth and six of moment rights, and so he wants to insist that we can't defer to the government when it says that these regulations are necessary. So the first

disagreement is on the theme of deference. She thinks the course not being deferential enough, and she has several lines and paragraphs where she kind of challenges, she kind of pokes the justices that they're being activists. And the second disagreement have to do with these comparison points. She thinks church services, indoor religious gatherings are not comparable to things like going to the home depot, going shopping, going to

a grocery store, and so on. So she thinks that religious gatherings are not being treated worse than comparable secular gatherings, whereas the justices who are in the majority did think that religious gatherings are being treated worse. In my own view, I don't think Justice Kagan took enough account of Justice Gorsuges point that California doesn't seem to have been very flexible.

That again, if you're worried about singing indoors, and it seems to be that that is something to worry about, you can simply say no singing during religious gatherings, or if you're worried about people in close proximity, you can require distancing. Again, Justice Courses concern was California had kind of taken the easy way out, just the blanket no gatherings proposal, and he doesn't want to defer to that.

The Justice Cagan does. The case seems to be following the New York case last November, after Justice Barrett joined the Court, in which the Court barred capacity limits on houses of worship, a change of direction from prior cases on that issue and more expansive of religious rights. So do you see this case as being a step further I don't think it's so much a step further from

the Brooklyn case. But I do think that these COVID restriction cases as a general matter have been fascinating because they do suggest, I think that the Court's free exercise doctrine is moving from where it was, you know, thirty years ago in the famous Smith case. It does suggest, and this is relevant to the upcoming Philadelphia adoption case,

the Fulting case, that then that you've been falling. It appears that you know, there's a majority of justices who are willing to apply more scrutiny to regulations, even well meaning regulations that burden religious exercise, and depending on where the justices land, depending on how much scrutiny they end up being willing to apply, we could see this year a doctrinal change in the tests that the Court uses in the free exercise of religion context. What kind of

change exactly? A change expanding religious rights. So the change would be in the direction of providing more protection to religious exercise than the Court's Smith decision thirty years ago, provided with four different opinions, Does this case give any guidance to the lower courts about what to do in

these cases? Or is it just too scattered? Yeah? So, as I think you pointed out, some critics have been frustrated that, you know, since it's well we have here are four opinions that are added to an order, we don't really have a full like merit decision. That lower courts and regulators are not totally sure what they're supposed to be doing, and this is true of the Brooklyn case too. Instead, they have to kind of read these

separate opinions and infer what the justices views are. And I think there's something to that criticism I mean, on the one hand, the court have to decide these interim cases all the time, and they can't always right full opinions and have you know, full or arguments before them. I think what we're seeing in a sense is little previews of the opinions that will get in a few months. In the Philadelphia adoption case, thanks for being on the show, Rick,

that's Rick Garnett, a professor nore Dame Law School. And in that Philadelphia case, a Catholic religious charity refused to place foster children with same sex couples, presenting a conflict

between religious rights and gay rights. House prosecutors concluded their case for victing Donald Trump and he sent an impeachment trial, saying they've proven that the former president is guilty of inciting an insurrection when a mob of his supporters stormed the US capital on January six to stop the peaceful transfer of power. The House managers spent three days highlighting Trump's own tweets, speeches, and comments to argue that it was a month's long campaign to stoke anger about the

November third election he lost to Democrat Joe Biden. Trump's lawyers are expected to present their defense tomorrow and may only need one day for their arguments, which will include video presentations after house managers played gripping footage of the assault on the capitol and violent attacks on police officers. Joining me is Jimmy Garoula, a professor at Notre Dame Law School. What is the big picture strategy of the house managers and how well are they carrying it out? Well?

I think that the house managers, so the impecial managers, have done a very good job in a methodical way, presenting their theory of the case. And it's interesting to note that their theory of the case isn't limited to what occurred on January six. They've gone back several months making the case that this is something that President Trump had a plan that he had concocted that was initiated

going back to before the actual election in November. He had stated prior to the election date that if he lost the only reason for him to lose would be that the election was stolen. So he planted the seed regarding the big lie well before the actual election and the election results themselves, and over several months again leading up to January six, he continued to repeat that false statement that the election was going to be stolen. The election was going to be stolen. The only way he

could lose as if the election was stolen. And as a result, I mean, he convinced a significant number of his followers that that lie was true. And so when the election results were finally tallied in favor of President elect Joe Biden, then he was able to say, see, I told you so, it was stolen. I'm the victim of this terrible wrong and it needs to be redressed.

And the only way it can be redressed as you've got to go to the capital on January six, the day that the election results were being certified and stop it. You know, you've got to stop the steal and take back the country. And so I thought that was very effective. This wasn't a spontaneous event that occurred on January six, but again there were several months and it was being

directed and orchestrated. Events were being directed and orchestrated by the president behind the scenes for several months leading up to up to January six. Now, having said having said that, I would just add, you know, one one additional point isn't going to make a difference in terms of convincing

Republicans to impeach President Trump. I don't think so. I think that Republicans had their mind made up before the impeachment hearing began, and I don't think that there's anything the impeachment managers could present to the Senate to cost seventeen members of the Republican Senate to vote in favor of impeachment. You know what you were talking about them bringing out this month long strategy, is that to try to get over the hurdle of what I would consider

the biggest turtle. I don't know if you do showing that President Trump actually caused the insurrection, that the reason they went to the capital was because of President Oh yeah, yeah, exactly because it it certainly the President's involvement or or the causal relationship between President Trump's conduct and the violence that that that the world witnessed on January six wasn't limited to the President's participation in the rally on January six,

the morning before the assault on the Capitol. That wasn't the summon substance of his involvement in the insurrection, The role that he played in causing his followers to march up to the Capitol and an assault and engage in this uh act of insurrection that resulted in violence and

the death of five of five people. His his participation, his involvement, his role well exceeded and began well before January six, and there trying to to highlight his culpability and the extent of his culpability, the extent of his participation, the extent of his responsibility for the violence that occurred on January six. And it's not limited simply to the rally itself that morning and then his tweets that followed later in the afternoon. How effective were the use of

the clips of the rioters themselves. So for at least two months, two months prior, the president had been repeating this light and it's been repeating it daily and repeatedly, you know, to his followers. In the process, again, there was this kind of rage that began to build within his followers again that erupted on January six. And you know that because the video recordings of the attack, you hear the demonstrators saying Trump has told us this, Trump

said this. You know, we're doing this for Trump. You know, Trump's the boss, and we're you know, we're responding that they were following the directions of their leader, President Trump, and they admit it. Caught on video, you know, we can hear them saying it, and then even tweets by the President after the assault on the capital began. Those tweets are actually being communicated on on a bullhorn to the writers live, I mean, in real time, and they're

responding to the President said that. The President said that the Mike Bence didn't have the courage and it's his fault and because he didn't stand up and do the right thing and overturn the election results. And so it's very clear that they're following his lead throughout and then that ultimately culminates when they decide to to leave the Capital buildings. Why, because we just heard this recorded statement by the President that he wants us to return in peace.

So it's clear that they're reacting and responding to the President's directives, you know, from the beginning all the way through into the evening of January six one. Eventually they deciders why did they decide to return because Trump told

him it was time for them to go home. After the first day's presentation, Senator Ted Cruz said it was powerful and emotional reliving a terrorist attack on our nation's capital, but very little was said about how specific conduct of the president satisfies the legal standard of convicting him of high crimes and misdemeanors. Is there a legal standard, I mean a criminal trial, you know, beyond a reasonable doubt and the civil triality, the conderance of the evidence. What

is it? I think, I think it's an important distinction to make. Impeachment is a political process, it's not a criminal justice process. The Constitute should authorizes Congress authorize as a house to impeach for high crimes and misdemeanors. And that term is a term of art, and it's been interpreted to not necessarily mean or be restricted or limited

to a specific federal statute, a specific federal crime. It hasn't been limited that way, but instead has been interpreted more broadly to mean abuse of power by the president. The president abused his power and in the process, you know, he's threatened our government. You know he's threatened the democracy

as a result. And so it shouldn't be equated with you or the standards shouldn't be well, does the president's conduct on January six and before Constitute a crime under federal law and meet those elements, each and every one of the elements of the alleged offense beyond a reasonable doubt. That's a criminal legal standard, and that's a wrong standard

to apply instead the standard here. This is a political process, not a not a criminal law process, and that distinction is an important distinction, and it shouldn't be blurred because they're not one and the same. And so Congress is free to determine whether or not the president is engaged in abuse of power that is so severe, so serious that it justifies is removal from office or his disqualification

from holding office in the future. The indication is that the house managers are not going to call witnesses, but it seems as if on a few points you almost need witnesses, which is President Trump's reaction to the riot and his failure to move quicker to stop things. Well, I think that that the most important, the most critical witness in this case and the impeachment trial is the president himself. Now, now, could there be other witnesses that

could be helpful to the UH and piecement managers. Certainly there are some, But I think that the most critical witnesses the President himself, and I think that the piece of managers have been a masterful job of using the president's on his own words on January six, and before and later that afternoon and evening on January six as

well against the president. And not only that, it's not only what the president said and what the president did on January six, it's important, but also what he didn't do, and his inaction and his failure to to stop the insurrection, his failure to communicate to his followers that he condemned their conduct and he wanted them to stop. His statement about stopping and going home, and I love you and your great people and and all of your special people.

All of that I mean that occurred some four hours or so after the assault on the Capitol was initiated, and so for four hours there was no communication by the President of his followers that he condemned their conduct. In fact, he seemed to acquiesce, and through his inaction and through his lack of condemnation, I think that is acquiescence in their conduct and demonstrated his approval of their conduct. Trump's impeachment team intends to lean heavily on his use

of the words peacefully and patriotically. In the speech, he said, I know that everyone here will soon be marching over to the Capitol Building to peacefully and patriotically make your voices heard. Does that mixed message help the defense, Well,

I think you've got to take that statement. You need to examine that statement in its totality, and so you can't examine it in isolation to say, well, look, we know that the president at the rally before the assault on the Capitol, he spoke for approximately seventy minutes, and during that seventy minute presentation, the word peaceful was used once one time by the president. But at the same time, during that seventy minute speech by the president, he used attack,

He used you got to be strong. I mean, he used language that conveyed to his followers that he wanted them to act in a very aggressive, forceful way to stop the certification of the election. So I think it's a relatively weak argument to point to one word in a seventy minutes speech and say, oh, that vindicates the president therefore he never intended for his followers to act

in a violent or aggressive way. When the other evidence, which I think is white overwhelming, is to the contrary that he was telling him, you've got to fight, you've got to fight hard, you've got to be strong, you can't be weak. These are all terms that are certainly inconsistent with a peaceful protest, and so I think the president's lawyers are going to do the best they can. Of course, they're gonna seize on that one term or

that one sentence in the seventy minute speech. They're going to try to make a big deal out of it. But I think that the kind of reverence imploring his followers to act in this violent way really offsets this claim that his intent was was only for a peaceful demonstration. They're going to use clips of Democrats using words like fight and calling for protests of Trump's actions to argue

that he's being held to a double standard for his rhetoric. Yeah, I think it's a false equivalency, and I think it's kind of a common defense tactic. You know, when when the facts are in your favor, when the law isn't in your favor, were then you try to direct the jury's attention away from the defendant's conduct, away from the defendant's actions to someone else. And so you'll see this,

you know, the defense lawyers will blame the police. You know, wasn't my client that committed the crown look at what the police officers did, and look what they did or they didn't do. And so I think this falls along those lines. It's a diversion tactic. It's an attempt to divert the jury's attention away from the facts and the issue and where what really matters in this case, and

for obvious reasons. I mean, the last thing they want the senators to do is to focus on what actually happened on January six and President Trump's role in causing that that insurrection. They really don't have to do anything because you know, it's baked in already. As you mentioned before, it doesn't seem like they're going to be in the

seventeen Republican senators to vote for impeachment. Right. Well, I think what's happening here again is that Trump's lawyers are trying to give the Republican senators some reason to not convict, some reason to not hold him accountable. And they're they're throwing out there any number of legal reasons and justification for voting to acquit the president. There's arguments that, oh, what the president said was protected under the First Amendment.

It's freedom of speech. So if you buy that argument, yeah, you can hang your head on that argument to acquit. Oh, the Senate can't try a former president. That's unconstitutional. Oh how about that argument. You know, if you don't like the First Amendment argument, here's another argument you can you

can hang your head on that. Oh. And if if neither one of those arguments appeal to you, what about this argument of hypocrisy that the Democrats are being hypocritical because look what they said, look what they've done in the past, and therefore that maybe to give you a reason or justification to vote to equip and so so I think that they're trying to give the Republican senators some legal cover, some legal reason or some reason hope could be legal, some reason to justify their action so

that they can say, well, yeah, this is all terrible what happened, and I condemn it, and I condemned the protesters. But the president is not responsible or the president shouldn't be convicted, shouldn't be impeached because of these reasons. That's Professor Jimmy Grule of Notre Dame Law School, And that's it for this edition of the Bloomberg Lawn Podcast, I'm June Grosso. Thanks so much for listening, and remember you can always get the latest legal news on our Bloomberg

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