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 Donald 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.

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Rachel del Guidice: I’m joined today on “The Daily Signal Podcast” by Zack Smith. He’s a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Zack, it’s great to have you with us on “The Daily Signal Podcast.”

Zack Smith: Thanks so much for having me on, Rachel. I really appreciate it.

Del Guidice: Well, it’s great to have you with us. To start off, we’re going to unpack, in a moment, the ruling from the Supreme Court last week, which blocked New York Gov. 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?

Smith: Sure, happy to do it. 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, churches’ abilities to gather.

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 California involving the South Bay Pentecostal Church. In the South Bay Pentecostal case, five of the justices sided with California’s governor against the South Bay Pentecostal Church.

[They] 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 [John] Roberts took it upon himself to write his own concurrence, kind of laying out his view of these emergency restrictions and the role that judges should play when reviewing them.

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 any way, 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.

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 had placed on houses of worship and churches and other religious institutions, 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 5-to-4 decision where the justices declined to intervene and ultimately sided with Nevada’s governor. In that case, Justice [Samuel] Alito authored a dissent, Justice [Neil] Gorsuch authored a dissent, and Justice [Brett] Kavanaugh also authored a dissent.

This leads us to the decision from last week, … November 25th, the day before Thanksgiving, where the court issued a ruling where this time five of the justices sided with a Jewish synagogue and also the Roman Catholic Diocese of Brooklyn against Gov. Andrew Cuomo and his very restrictive lockdown orders.

And so it was very encouraging to see that. 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 courts’ attitudes to these types of cases.

Del Guidice: Well, Zack, 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 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 reopened liquor stores and bike shops, but shut our churches, synagogues, and mosques.

So, Zack, what was your perspective on this opinion from Neil Gorsuch?

Smith: 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 Justice Gorsuch, he really has some memorable lines, certainly had memorable lines in this opinion as well. He also said, “Even if the Constitution has been on a vacation to this point, it can’t become a sabbatical.”

And I think one of the interesting things, it’s always tough to tell 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, Gov. 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.

Del Guidice: Well, not surprisingly, Justice Sonia Sotomayor, she had a different perspective other 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, Zack, 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?

Smith: 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, or 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, Fulton 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.

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 see is that the five justices, in this Roman Catholic Diocese case out of New York, [say] that yes, they are being treated less favorably.

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 as 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.

Del Guidice: After the Supreme Court’s decision, Cuomo came out and called it irrelevant. Zack, is it irrelevant?

Smith: 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, my personal view is, a little bit of posturing by Gov. Cuomo.

Del Guidice: 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?

Smith: 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 very, very restrictive measures for extended periods of time to be put on churches and their parishioners and their ability to gather 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.

Del Guidice: And another church situation in California, at 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 striptease before taking off his tie and congregants reportedly held up these $1 bills.

Zack, can you tell us what you know about the situation and what went on here, why this pastor chose to do this?

Zack Smith: 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 Gov. [Gavin] Newsom’s COVID restrictions, strip clubs were treated more favorably than churches and synagogues and other religious institutions.

So to be treated more favorably, he had engaged in his clean striptease, which I believe involved him taking off his necktie at the pulpit. And again, so that he and his congregates 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.

Del Guidice: In Kentucky, there’s a fight going on over religious schools, where Kentucky Attorney General Daniel Cameron has asked the Supreme Court to stymie Gov. Andy Beshear’s ban on in-person classes. Can you tell us a little bit about what’s going on here?

Smith: Sure. So, the Kentucky governor, who is a Democrat, he issued 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.

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.

So they filed a lawsuit and, … I think it was 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, unfortunately, the governor appealed that order to the 6th Circuit Court of Appeals and the 6th 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 with appropriate restrictions and safe practices, can still go about their business.

And so after the adverse ruling in the 6th Circuit Court of Appeals, Daniel Cameron, the Republican 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 to gather and fulfill their free exercise rights.

Del Guidice: Zack, 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?

Smith: 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 … 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 acupuncturists and strip clubs.

Del Guidice: Well, Zack, thank you so much for joining us on “The Daily Signal Podcast.” It’s been great having you with us.

Smith: Thanks so much for having me on. I really enjoyed it.