'Why Did You Conclude That Religious People Can Be Singled Out?': Hawley Grills Biden Judicial Nom

i'm brittany lewis with forbes breaking news in the senate judiciary committee hearing on wednesday senator josh hawley questioned john c lee nominee to be united states circuit judge for the 7th circuit at the center of holly's questioning was a decision by lee a united states district judge on a stay-at-home order during the covet 19 pandemic this order applied to religious institutions but not some retail and other essential public spaces hawley objected to what he called the quote singling out of religious spaces which had a 10 person or less requirement versus non-religious essential spaces let's watch the missouri senator's questioning of judge lee paul is that fair to say yes senator the constitution doesn't contain an emergency is exception doesn't an emergency exception can it be suspended in the case of an emergency there is nothing explicitly in the constitution that provides any sort of suspension during cases of emergency can a bill of rights be suspended during an emergency uh there's nothing in the constitution that provides for that what about the equal protection clause can it be suspended during an emergency government does favor a certain group of people because it's convenient for the government again senator there's nothing in the constitution that provides for that okay help me then understand your opinion in the casel case this is about governor pritzker in your state his orders or in your in uh within your jurisdiction his stay-at-home order during the covet 19 pandemic he issued an order that allowed essential businesses and operations to operate at 50 capacity but it applied only to secular institutions and services he explicitly said religious activity was subject to a different rule religious activity churches synagogues could only have 10 people in them everybody else all other essential services could have 50 percent so hundreds of people go shopping whatever but religious activity oh no only only 10 people or fewer for for those folks different rule explicitly different rule you upheld that in the casel case this differing standard that singled out religious people for disfavor and you said that the supreme court of the united states has said that different rules apply during pandemics the strange thing is as i'm reading the case on which you relied and it says nothing of the sort you cite jacobson versus commonwealth of massachusetts that's a 1905 case you say that the jacobson court explained that the traditional tiers of constitutional scrutiny do not apply that phrase doesn't appear anywhere in that opinion tears of scrutiny weren't invented by the supreme court for another 40 years so help me understand where you're coming from in this case why did you conclude that religious people could be singled out for disfavor thank you senator holly for that question as i stated previously when i decided that the casell case which was later affirmed by the 7th circuit it was early on in the pandemic and um we did not have the benefit of the various other rulings by the supreme court that came down after my ruling on cassell that held just the opposite that the i guess i'm referring to uh roman catholic as well and right in which the supreme court held that you could not single out religious people for disfavor state of new york tried to do precisely the same thing and the supreme court said actually plaintiffs have a strong likelihood of success on the merits you said they have no likelihood of success on the merit so just help me explain the supreme court took a totally different view help me explain how you looked at the same constitution it came to a totally different conclusion why is it okay to single out religious people for disfavor i don't understand it what i looked at was whether or not the uh governor pritzker's order was neutral and generally applicable to decide whether at that time to decide whether secular activities were generally applicable i looked at the type of activities as well as kind of the sort of risk varying degree of risks that were present in those instances so for example well can i just stop you right there i'm sorry i've only got one minute left i'm sorry but you've raised i think a really important point because the standard is when it comes to first amendment violations is the law neutral and generally applicable this regulation wasn't neutral and generally applicable it had one set of rules for shops businesses and a completely different set of rules for churches which of course what the us supreme court ruled i don't understand you can look at that and say it's neutral and generally applicable the rule order as i recall also closed for example movie houses and auditoriums as well as schools and so when i considered the activities at movie houses and schools compared to activities carried on at churches i found those to be at the time using the time pretending test to be generally comparable or comparable i agree and i found that the but the order said that religious houses of worship were essential so it said that essential businesses could be open essential services but at 50 percent initially it didn't include any any carve out for religious any acknowledgement that religious services might be essential he amended that said no they are essential but i'm going to cap them so two completely different rules let me just my times have about expired so let me just read you something from the jacobson case which you cite which i'm surprised you didn't heed here's what the jacobs case says no rule prescribed by a state nor any regulation adopted by a local governmental agency shall contravene the constitution of the united states or infringe any right granted or secured by that instrument a local enactment or regulation even if it's based on the police powers of a state must always yield in a case of conflict with the exercise by the government of any power possesses under the constitution or to any right which that instrument meaning the constitution gives or secures i i'm baffled that you would cite this case in support of a decision that treated religious believers differently indeed disfavored them compared to other people and i think the fact the supreme court reversed on precisely this case later doesn't say much for the analysis that you employed which frankly i find pretty alarming thank you mr chairman senator blumenthal thanks mr chairman welcome to you both and thank you for your service on

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Keywords: Sen. Josh Hawley, President Biden, Senate

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Length: 6min 45sec (405 seconds)

Published: Wed May 11 2022