Legal Docket – Constitutional coronavirus clashes

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 29th of June, 2020. 

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Two more days to go for our June Giving Drive, today and tomorrow. Still enough time for you to get involved in it if you haven’t already. Now, I’m not saying you need to get on your bike and ride across the country to deliver it in person! Wasn’t that great?

REICHARD: That must’ve been a surprise for you on Friday! To have David and Sharon Lucas drop in on you like that. They did the preroll today. Impressive dedication there! And very muscular.

EICHER: It was so great to meet them, so unexpected. I was chatting with them outside and Sharon told me she wanted to do a preroll, and of course I did show her how to do that on her phone and then thought, hey, if you’ve got a minute, hop on into the studio with me and you and your husband can just use my microphone. So that’s what we did!

REICHARD: We’ve got such wonderful listeners and readers, both magazine and online. And as you said, Nick, you don’t have to pedal all the way to Asheville. You can donate online. We’re modern and up-to-date around here! Just go to We’re so close, but not quite there yet.

EICHER: And so close to the end of another term of the U.S. Supreme Court. How’s that for a transition?

We expect U.S. Supreme Court opinions this morning as well as tomorrow. Thirteen decisions remain and I’ve heard rumors that the decision making term may extend into July. That’s unusual, but not unprecedented. 

We will report on today’s rulings tomorrow.

REICHARD: Also, a quick note on vacant seats in the federal courts. Last week, the Senate confirmed two more of President Trump’s nominees to the federal bench. And that means the federal appeals court is 100 percent filled! These are lifetime appointments, so these judges have lasting influence.

Several dozen vacancies do still exist in the federal district courts. Nominees there are waiting for approval from the Senate.

EICHER: At this point, overall, nearly 1 in 4 judges seated in the federal system is a Trump appointee. He’s successfully placed 200 federal judges on the courts and that’s not been done at this point in any presidency in 40 years.

REICHARD: Well, now that oral arguments are all complete and analyzed, we begin summertime Legal Docket. 

That’s when I report on goings-on in lower courts and look for trends in the law. And hear from people I don’t have time to talk to when the Supreme Court’s in session.

EICHER: Let’s kick that off with a story out of New York, where officials have clamped down on First Amendment freedoms.

Mary, you mentioned early on when public officials announced coronavirus rules that you expected to encounter some constitutional clashes.

REICHARD: I did, because our Constitution is unique in the restraint, theoretically, that it places on the power of the federal government, and on state governments.

The first 10 constitutional amendments really hem in government power and serve to protect the most important freedoms we enjoy. We call those the Bill of Rights. And right there at the very top are freedoms of religion, speech, press, assembly, and petition. Our First Amendment, the freedoms it guarantees, are special, and as a result special legal analysis applies when the government wants to curtail any of them.

EICHER: You’re talking about how public officials are ordering the manner in which normal life can return. Such as in New York, where phased reopening with physical distancing and masking requirements haven’t been consistently applied.

REICHARD: Yes, and it led two Catholic priests and three Orthodox Jewish petitioners in New York to seek counsel. They brought a lawsuit asking a court for a preliminary injunction to stop officials from singling out for restrictions worship gatherings not placed on other similar gatherings. The named defendants are Governor Andrew Cuomo, Attorney General Lititia James, and New York City Mayor Bill de Blasio. 

On Friday, U.S. District Judge Gary Sharpe issued that injunction.

Their lawyer, Christopher Ferrara, is special counsel to Thomas More Society. That’s a religious freedom law firm.

Here are portions of what he told me, edited for time. I started by asking him about the law involved.

FERRARA: The case law is clear that if it’s not even handed, if the regime has exceptions for favorite activities, and discriminates against religion, then it’s subjected to what the courts call strict scrutiny. Strict scrutiny is the highest level of scrutiny a court can give a law or regulation. And in order to survive strict scrutiny, which laws or regulations rarely do, the state must adopt the narrowest possible remedy for whatever interest it says it’s advancing.

Ferrara going on to say that here, the narrowest possible remedy is social distancing of the same kind observed by businesses and outdoor gatherings. Those don’t involve arbitrary 25 percent occupancy limits. 

Now we’ve had gatherings of another kind. He goes on to explain.

FERRARA: Especially now when throughout the state, we have massive protests against the death of George Floyd. Fine. That’s the First Amendment protected activity. We also have a Black Lives Matter protests in the thousands. We have Juneteenth celebrations, including marching bands. We have a total free for all on outdoor gatherings of people packed closely together. They may or may not wear masks. They’re certainly not socially distancing. So that development has also affected our case. And now we’re saying to the federal judge involved look, the whole thing has been revealed as essentially a sham.

I ask Ferrara to elaborate on the sham idea.

FERRARA: The political leaders, in particular Mayor de Blasio in New York and Governor Cuomo in Albany, completely caved in and allowed the protest. Why? Because they favor those causes. And they said so. Mayor de Blasio, in fact, specifically declared that this cause as protest over the death of George Floyd represents an emerging movement against 400 years of racism in America, which is more important. He says, I’m sorry, it’s not the same issue as devout believers who want to go to religious services. You could not ask for a more blatant, double standard in violation of the First Amendment than Mayor de Blasio saying these protests about George Floyd are more important than religion.

But there are people who will say you can’t stop a protest, that racism is more important to address at this moment than other things. He continues:

FERRARA: Well, let’s assume that were true. Let’s just say we could come up with some justification that makes these protests more important than other kinds of First Amendment protected activity. Okay. Then what are you doing? You’re making individualized exceptions from your regulatory scheme. You’re saying, well, this protest is more important than that protest because of X, whatever factor it is. Once you do that and introduce exceptions into your scheme, strict scrutiny is triggered. It’s no longer a generally applicable and neutral set of regulations. It’s a set of exemptions and prohibitions. And so strict scrutiny requires that if you’re pursuing what you claim to be a compelling state interest, and you’ve created exceptions to your pursuit of that interest, you have to adopt the narrowest possible tailoring, to your regulations. 

And so someone comes along and says, Hey, you’ve given a political exemption to 25,000 people on the Brooklyn Bridge. Why can’t we have full occupancy of a synagogue? You need to show that the narrowest possible tailoring forbids that. Well, it doesn’t. They created the exceptions. Therefore they have to undergo strict scrutiny and they can’t survive it because the system doesn’t make any sense anymore. It’s just a hodgepodge of value judgments, really. A governor makes a value judgment that this protest is important because in his opinion it will save lives.

That was Christopher Ferrara, special counsel to Thomas More Society, and represented the religious people who challenged New York’s unevenly applied restrictions. 

As I mentioned, after I spoke to Ferrara, District Judge Gary Sharpe issued the preliminary injunction he’d sought. That stops state and city officials from ordering or enforcing restrictions in this discriminatory way. 

Judge Sharpe found the limits on houses of worship were not justified, because nonessential businesses allowed a certain capacity limit aren’t justifiably different from them. The different treatment is partly what triggers the courts to apply the strictest scrutiny.

The judge specifically pointed to Governor Cuomo’s special exemption of outdoor graduation ceremonies from the 10 or 25 person limit on other outdoor situations.

The judge also found that Mayor de Blasio’s messages encouraging protests clearly undermined the legitimacy of his rules.

This matter isn’t over and more proceedings will follow. But these kinds of skirmishes are happening around the country. People in several other states have also successfully challenged governors’ restrictions on similar grounds.

And that’s this week’s Legal Docket.

(AP Photo/Kathy Willens) People inspired by a speaker raise their hands during a Caribbean-led Black Lives Matter rally at Brooklyn’s Grand Army Plaza, Sunday, June 14, 2020, in New York. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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