Churches in the nation’s capital 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 hearings 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. 

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Rachel del Guidice: 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.”

Hiram Sasser: Hey. Thanks for having me.

Del Guidice: 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?

Sasser: Well, sure. We represent Capitol Hill Baptist Church and they’ve been meeting in Virginia in a field, in open air, for quite some time. They have 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 the 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.

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.

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.

Del Guidice: As you mentioned, Capitol Hill Baptist Church did file a lawsuit against the D.C. mayor’s order. Can you talk a little bit about what was in Mayor Muriel Bowser’s order and how it affected CHBC?

Sasser: Well, sure. The orders had a cap of a hundred 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 farmer’s markets, there was a nightclub, and some other things. But that was the big obstacle for the church being able to meet in the District of Columbia.

Del Guidice: 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?

Sasser: 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, for Capitol Hill, their commitment to certain [Centers for Disease Control and Prevention] 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 unique.

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.

Del Guidice: Well, Hiram, you mentioned the Religious Freedom Restoration Act, and then Judge Trevor McFadden had mentioned how this violated the Religious Freedom Restoration Act. So can you talk about a little bit more how it did violate that and then also what RFRA is to begin with?

Sasser: 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 the freedom of speech and freedom of press and other 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.

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. And of course the District of Columbia is part of the federal government.

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 a religious activity like here, where 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 that the affidavit they had submitted just fell really short of that standard.

Then what ended up happening was you could go to the next prong. You don’t have to, but whether or not they’re advancing this, 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.

Del Guidice: 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?

Sasser: Strangely, the most difficult part of the case was the church did not want to have to sue the District of Columbia. 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.

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.

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 a 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.

Del Guidice: 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?

Sasser: No. That’s pretty well-settled law. … You can go to Thomas v. Review Board, that was back in, what was it? Early ’80s, at least before ’85, I think. But there’s plenty of case law that it’s 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’s pretty well-settled law.

What was scary, … and 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 is well read into the existing constitutional jurisprudence on that issue.

Del Guidice: Hiram, you were 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 has a compelling interest in preventing the church from meeting outdoors, with appropriate precautions.

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?

Sasser: Are you asking why she had been successful so far in—

Del Guidice: Yeah. So far.

Sasser: … in imposing those things? I think a lot of it is there’s a time factor involved, but there’s an individualized assessment.

One of the most important observations about the Religious Freedom Restoration Act was made by Chief Justice [John] Roberts in the UDV v. Gonzales decision.

It was a unanimous decision, although I don’t believe Justice [Samuel] 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 in 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 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 Americans is we sort of want to just kind of enjoy our freedom and 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.

Del Guidice: 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?

Sasser: Yeah, I think that one of the things that Judge McFadden points out in his opinion is that at some point 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 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 along, 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 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.

Del Guidice: As we wrap up here, two last things: Do you think we’ll see more churches follow suit? And then lastly, is the legal battle over for CHBC or what’s next?

Sasser: 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 [citing] this case going forward.

In fact, the 5th Circuit, … the ink’s barely dry on the opinion, and they’ve already cited it in an opinion that just came out of the 5th 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 a final solution to this problem and resolution that can work for everybody.

Del Guidice: Well, Hiram, thank you so much for joining us on “The Daily Signal Podcast” and unpacking this case for us. It’s been great having you.

Sasser: Thanks for having me.