WATCH: Eyewitness News speaks with legal expert about religion and the government

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EVANSVILLE, Ind. (WEHT)- Eyewitness News’ Brandon Bartlett talks with legal expert Quentin Brogdon about what legal authority governments have over religious organizations.


Brandon: Quentin, thanks for joining us tonight. Let’s get right to it. Does the government have any legal power to control religious organizations?

Quentin: Well, not per se, but the First Amendment, the United States Constitution has a test as it’s been applied in the United States Supreme Court and other courts interpreting the amendment. And essentially, the test is this, the government cannot unduly burden a religion unless there’s a compelling reason to do so. And then the second prong of the test is that the burden placed on the religion has to be the same kind of burden, the same type of burden placed on secular that is non religious institutions. And so for instance, if the government says that all buildings that have people in them have to have, you know, meet the fire code, as long as that’s applied equally to religions and non religious buildings, then that presumably would pass muster and would not be unduly burdening a religion even though it would require a church to To make the fire code, for example.

Brandon: Now, some cases have gone to the Supreme Court over the years. What has the United States Supreme Court said when interpreting the First Amendment as it relates to freedom of religion?

Quentin: Well, as long as the burden is applied equally, as long as it’s not an undue burden, and as long as the state has a compelling interest, and that’s where we get into the nub of the whole Coronavirus thing is that’s being litigated, you know, really across the country. Some churches are maintaining and legal filings and also, you know, in the press, that this is an undue burden when you’re shutting down a church service and the governments that are doing this are saying, but we have a compelling interest and we’re applying this equally. We’re saying any gathering over a certain size we’re prohibiting based on health reasons, those types of gatherings are going forward and therefore we’re not unduly singling out religions.

Brandon: I wanted to ask you in our area, a lawsuit has been filed against Kentucky Governor Andy Beshear by a church that held in person Easter services. State troopers were there and recorded the license plate numbers of those attending. Now the governor says that service was a violation of his order. The Church says it was targeted, singled out and punished for having a faith based gathering. Does this lawsuit in your opinion have any merit?

Quentin: Well, these types of lawsuits are looked on a case by case analysis. If there was some evidence, and I’m not familiar with all the evidence, but if there was indeed some evidence that this church was targeted specifically, then the church might have an argument. On the other hand, if this church is just getting swept up in the general order that applies to churches and non churches across the board, and is strictly based on the health of the citizens, then the church is going to have a tougher road to hoe in showing it was singled out and that the governor’s order violates the First Amendment and the United States Constitution.

Brandon: The perception by some is that they were targeted the order that the governor signs said mass gatherings, though

Quentin: Well, and again, if there’s a lawsuit going forward, and it sounds like there is, then those are the kinds of documents, emails and records that will be gathered and a judge or and or ultimately a jury, probably a judge first, would be looking at those documents to see whether they met the test of the church being singled out, or whether it’s compliant with the First Amendment, namely applied across the board to churches and non churches, and not the singling out of a specific church. And that’s going to be a case by case determination based on the specific evidence

Brandon: Now moving forward with more churches opening and some staying close. Could we see more lawsuits like that one in Kentucky?

Quentin: Absolutely. I mean, you can file a lawsuit, anybody can file a lawsuit for any reason. Churches in particular, there’s been, you know, a raw nerve over hundreds of years about the government regulating them. And so courts look very strictly at any regulation that touches upon a church to be sure that the government is not intruding where it doesn’t belong, namely establishing a government religion and or unduly burdening a religion, you know, for no good purpose and there has to be a substantial basis for it. And if there isn’t, then the courts are very skeptical of any attempt to regulate.”

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(This story was originally published on April 25, 2020)

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