In what could go down in history as among the most disastrous gubernatorial gaffes of the COVID-19 pandemic, New Jersey Gov. Phil Murphy, a Democrat, said Wednesday night on Tucker Carlson’s Fox News opinion broadcast that he “wasn’t thinking of the Bill of Rights” when he signed a series of broad-reaching executive orders which curtailed the freedoms of his loyal subjects — wait, sorry, we mean residents. The trainwreck is over; the railroad cars are scattered everywhere at this point. Let’s don our legal hardhats right now and try to put the cars back on the tracks. This is going to require some heavy gear and multiple cranes.
The first relevant New Jersey executive order, EO-104, shut down large gatherings of more than 50 people starting March 16th. The second such order, EO-107, ordered all residents to “remain home” starting March 21st unless they were leaving for a series of nine reasons, including work, education, and “religious” functions. EO-107 also banned gatherings in general, but with a caveat: “[g]atherings of individuals, such as parties, celebrations, or other social events, are cancelled, unless otherwise authorized.” The third relevant order, also dated March 21st, is EO-108. It prevented local governments from altering the governor’s orders by passing more or less restrictive measures. Murphy’s March 21st press release announcing EO-107 and EO-108 said nothing of religion. During a March 21st coronavirus briefing, Murphy said nothing of “religion,” but he did problematically say this (emphasis added by Law&Crime):
[U]nder this executive order, all gatherings are cancelled until further notice. This means no weddings, in-person services, or even parties. This decision is not an easy one and it pains me that important life moments will not be celebrated in the way we are accustomed to. And I know this will be disappointing to many residents, but my singular goal – our singular goal, not to mention frankly my job – is to make sure we get through this emergency so that you can safely gather with family and friends later and enjoy many more birthdays and weddings in the years to come.
To recap, the written orders allowed people to leave home for “religious” reasons while banning gatherings “unless otherwise authorized.” Arguably, then, EO-107 did allow religious services by “authorizing” people to leave home for “religious” reasons. However, because the governor said “in-person services” were “cancelled,” the governor’s orders were interpreted in some news reports to preclude religious services. In the wake of all of this, some local health officials reportedly issued mandatory health alerts aimed at religious centers and required them to be cleaned.
The takeaway here is that Murphy’s penned orders appear to have said one thing while his mouth said another. Murphy’s exchange with Tucker Carlson on Wednesday night did not help straighten out this mess. Instead, it made it worse.
CARLSON: By what authority did you nullify the Bill of Rights in issuing this order? How do you have the power to do that?
MURPHY: That’s above my pay grade, Tucker. So, I wasn’t — uh — I wasn’t thinking of the Bill of Rights when we did this. We went to all — First of all, we went to the data . . .
CARLSON: Well, I can tell.
MURPHY: . . . and the science and it says . . . people have to stay away from each another. Uh, that’s the best thing we can do to break the back of the curve of this virus that leads to lower hospitalizations and ultimately fatalities.
Carlson said he was “not contesting” the science and said there “was a debate,” a “rolling conversation” about how to best legally deal with the coronavirus. He did, however, contest Murphy’s knowledge of his own job description:
CARLSON: Since you are an elected official, a leader in the government, an executive, how do you have the authority to order something that so clearly contravenes the Bill of Rights of the United States, the U.S. Constitution. Where do you get the authority to do that?
Murphy fell back to the science for a second before spitting this out:
MURPHY: We know we need to stay away from each other, number one. Number two, we do have broad authority within the state. And, number three, we would never do that without coordinating, discussing, and hashing it out with the leaders — the variety of the leaders of the faiths in New Jersey.
After a bit of a back and forth, Carlson pressed in again:
CARLSON: I’m sure that you talked to every rabbi and priest, but there’s a deeper question here, and I’m just going to ask you one last time, because I think it’s important. I’m sure you thought of this. You can’t just, as the governor of the state, tell people who they can talk to, when and where, because the Constitution of the United States upon which all of this is based prohibits you from doing that. So you clearly decided that you could do it. Did you consult an attorney about this? Did you — I mean, because this is a legal question as well as a medical one, isn’t it?
MURPHY: I don’t go to the men’s room without consulting an attorney, so I guarantee you we did that.
Murphy still couldn’t explain the legal crux of his authority. We get it; he’s not a lawyer. He ascended to his state’s highest office after a background in business and finance. What’s more shocking, though, is that Murphy still couldn’t accurately explain what was in his own executive orders — which he (electronically) signed.
Murphy waxed poetic about a conversation with Cardinal Joseph William Tobin of Newark, New Jersey, about priests who had the virus and who passed it on to parishioners. Murphy said the cardinal assured him that the church wasn’t going to do drive-thru services because the risk was too high.
“That’s not denying someone their right to worship in any way; we have to find a different way to worship; that’s the point,” Murphy told Carlson. It was Murphy’s answer which most closely resembled a legal argument but which failed utterly because it conflated a church’s decision to curb its services with a hypothetical government decision to curb services. Murphy attempted to throw in a “God Bless America” reference before Carlson snapped back.
“Government’s not allowed to tell people how to worship,” Carlson said.
Murphy should have (1) immediately thought of the First Amendment when issuing his orders; (2) known what was in his own executive orders and properly defended them; and (3) mustered at least a basic constitutional defense of any order which did arguably infringe on the First Amendment.
The rough outline of such a defense might have looked something like this. These are Law&Crime’s words, not anyone else’s:
New Jersey’s executive orders do not infringe on religious freedoms or liberties because they explicitly allow people to leave home for religious services. If churches voluntarily close, that is not the fault of government; the government cannot force a church to remain open if it chooses to voluntarily close itself.
State government has a valid interest in public health matters. Under New Jersey law, the governor has the power to take actions to preserve public health. Specific laws are cited within the executive orders. Anyone can look those laws up.
Even if the executive orders did in part order the shutdown of religious services, such an action was legal under the First Amendment.
The First Amendment contains several religious freedoms. The first is the establishment clause. It prevents the government from establishing an official state religion. That is not at issue here.
The second is the free exercise clause. It means the government cannot single out and punish specific religious conduct. Per the U.S. Supreme Court in a case striking down a law a law which banned a very specific type of animal sacrifice: “[a] law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” The operative legal test — “strict scrutiny” — is how courts look at cases where laws infringe on fundamental rights (e.g., free exercise) and suspect classifications (e.g., racial segregation). “[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited,” several cases, including the animal sacrifice case, have said (internal punctuation omitted). Laws must uphold a “compelling governmental interest” and must be “narrowly tailored” to pass strict scrutiny.
The government can pass laws which regulate general conduct, even if those laws just so happen to interfere with religious beliefs. Such general laws are deemed constitutional so long as they are not motivated by a desire to target religion. The Supreme Court has held that Americans cannot use religion as a get-out-of-jail free card; the freedom of religion is not a general defense tactic and cannot usually be used to challenge criminal laws. “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities,” the Supreme Court ruled in a case upholding laws which banned the drug peyote despite its use in some Native American religious ceremonies. Under this legal reasoning, the court has held that the free exercise of religion cannot be used to skirt minimum wage laws, to get someone out of paying Social Security taxes, or to erase tax laws which also happened to apply to religious literature. Tax laws and criminal laws are examples of laws the Supreme Court has constitutionally upheld where their aim is not to directly punish specific religious conduct. Any effects those laws have on religion is ancillary. Or, as the animal sacrifice case summarizes: “In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”
An emergency order which — arguendo — attaches criminal penalties to gatherings during a pandemic is constitutional if it bans all gatherings (sporting events, dramatic productions, religious services, amusement park crowds, etc., etc., etc.). An emergency order which solely bans religious gatherings is unconstitutional because laws cannot target specific religious functions. New Jersey’s executive orders, to the extent they might tackle religion, are the former, not the latter. New Jersey’s order should pass strict scrutiny because it applies generally, advances a compelling governmental interest, and is narrowly tailored in that it is only applicable for a short time.
Finally, there’s the Freedom of Assembly, which is not tied directly to religion but which is applicable here. The strict scrutiny analysis would be virtually identical to that as above.
That’s the long-winded version of what Murphy should have known. Surely, he could have whittled it down into a few telegenic sound bites. Admittedly, the weak point of the argument for Murphy is the required narrow tailoring of any government action which is subject to strict scrutiny. Actions taken to contain a highly contagious virus are traditional law school examples of things that would probably survive strict scrutiny. The more viral the contagion, the more the government can do to contain it. Even Texas infectious disease law, which carefully carves out religious freedoms, allows the government to quarantine the faithful.
George Washington University law professor Jonathan Turley argued additional First Amendment matters related to pandemic responses in The Hill.
Law&Crime reported just before Easter how Vice President Mike Pence, whose Christian faith is no secret, attempted from the White House podium to ward off a clash between the coronavirus measures of various governments and religious freedom advocates. However, he failed to avert clashes in Kansas, in several places in Kentucky, and probably elsewhere.
Gov. Murphy of New Jersey botched this one quite badly. This is the bread and butter of his pay grade. Because we can, we checked: according to a database of government salaries in New Jersey, Murphy’s annual salary is $175,000. Attorney General Gurbir Singh Grewal also earns $175,000 a year. Matt Platkin, Governor Murphy’s Chief Counsel, earns — you guessed it — $175,000 a year. The answers Tucker Carlson was seeking weren’t for people above Murphy’s pay grade. They were for people in his pay grade.
[Image via Fox News screengrab]
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