April 23, 2020

WilmerHale’s Matthew Martens on Religious Liberty, More Hours and 'Drowning in Email' During COVID-19 The former SEC litigator discusses Judge Justin Walker’s ruling for a Kentucky church’s Easter services and what happens when your dog interrupts your Zoom client call.

By Jacqueline Thomsen Wilmer Cutler Pickering Hale and The WilmerHale team also Dorr partner Matthew Martens is no helped file acomplaint against stranger to quick turnarounds for Greenville, Mississippi, Mayor Err- religious liberty cases: He once got ick Simmons over an apparent ban a call at 9 p.m. asking for his help on drive-in services there. First Lib- filing a brief by 10 a.m. the next day erty Institute later said in a state- on behalf of a Jewish Chabad orga- ment that officials clarified those nization ahead of Yom Kippur and services are allowed. managed to meet the deadline. Martens spoke from his home in That experience in religious lib- Vienna, Virginia, where he’s stay- erty litigation came to Marten’s ing with his family, about his expe- advantage in recent weeks as he, rience. This has been edited for joined by WilmerHale senior asso- length and clarity. ciate Kevin Gallager and associates Q: You’ve now worked on a cou- Hyun-Soo Lim and Andrew Miller, ple of cases with the First Liberty worked with the First Liberty Insti- Institute, challenging local restric- Matthew Martens of WilmerHale. tute and others to challenge restric- tions on religious services. How did tions to church services during the you get involved in these cases and I’ve worked with First Liberty COVID-19 pandemic. why do you think it’s important to in representing several Jewish In Kentucky, U.S. District Judge protect these kinds of liberties dur- Chabads in Southern California in Justin Walker—recently nomi- ing a time of crisis? litigation over a Yom Kippur cer- nated for the U.S. Court of Appeals A: I’ve been working with First emony called Kapparot, which for the D.C. Circuit—this week Liberty for probably five or six years involves a ritual slaughter of a approved a settled order between now, I got introduced to them when chicken. On this matter in Louis- the On Fire Christian Center and I joined the firm. I always appreci- ville, the general counsel Hiram Louisville officials that allows the ate that they have vetted the cases Sasser called me out of the blue church to hold drive-in church they’ve come to me with, so they and asked me if I would help on services, in line with CDC guidelines. don’t come with problematic plain- this the Wednesday before Easter. Walker granted a temporary tiffs or fringe theories. We’re really Q: So things came together pretty restraining order to the church in trying to hit it down the center of quickly on that case then? favor of holding drive-in services on the fairway on religious liberty, A: When I got involved in the Easter Sunday, but his fiery opinion both in terms of who we represent chicken cases, Hiram called me on in the case drew some criticism. and arguments we make. a Monday night—I was watching the national law journal April 23, 2020

“Monday Night Football,” so I remember it—and he said, ‘We need to file a brief by 10 a.m. tomor- row, for a TRO before sundown on Yom Kippur which is on Wednes- day. Can you do it?’ I was like, ‘OK, it’s like 9 o’clock at night. I’ve got to run conflicts check, I’ve got to get pro bono committee clearance, I’ve got to find some associates who want to stay up all night for this.’ We pulled it together, filed a brief at 10 a.m. This Kentucky case was not any different. We wrote a letter to the Diego M. Radzinschi/ALM)(Photo: mayor and sent it out Thursday We were left with a record that concerned that it’s not good for the morning. We didn’t hear anything. posed a real threat to whether my folks spiritually, it’s not good for the We started writing the brief on client would be violating criminal church financially. There comes a Thursday night, worked all night— law if they held service on Sunday. point you have to say, “We’ve got mainly the team worked all night, We really didn’t have any other to look for a solution everyone can I was up till 1 a.m. reviewing drafts option at that point but to file for live with.” and getting edits, I was back up a TRO. Our client was genuinely look- first thing in the morning to review In terms of the judge’s opinion, ing for a solution that would keep the next turn to the brief they had we’re happy to win. Far be it for people safe, but would allow the done. me to comment on judges’ opin- church to function with some sem- ions. At the end of the day we won blance of what a church looks like. Q: In that case in Kentucky, Judge and he ruled in our favor, and we We were looking for some middle Justin Walker granted the order in were happy for that. And we felt ground. I don’t want to still be liti- your favor but also drew some criti- he got it right. gating this six months from now on cism over the opinion. The mayor if we’re still in this extreme social later said he wasn’t planning on Q: It’s unclear exactly how long distancing scenario. I hope that enforcing the order. What was your this pandemic is going to last, or at people can look at this as a model reaction, both to Walker’s opinion least how long the social distanc- for how the government and the and the mayor later saying they ing measures will be in place. Do churches can work together on weren’t necessarily planning on you anticipate more of these reli- this. enforcing the order? gious liberty cases coming forward, A: There was no reason to read if we continue to see these kinds of Q: Speaking of government and the mayor’s comments previ- restrictions in place in the coming churches working together, the ously to say that. He said drive-in months? How do you think Amer- Department of Justice has indi- church was not allowed. He said icans should strike the balance cated it’s also going to go forward you’d be violating the governor’s between exercising their religious and defend religious liberty rights. order, which carries misdemeanor freedoms and public health and You were in the Justice Depart- criminal penalties. I can’t read a safety concerns? ment, what role do you see the subjective intent; all I can tell you A: The judge said in his opinion department playing in these kinds is what my client heard and what that the Constitution is not a sui- of cases? How can they also toe I heard from what he said was it cide pact. I certainly believe that, the line between the public health wasn’t going to be allowed and my clients agreed with that, my regulations from their own admin- there was a risk of enforcement. clients were very concerned about istration and also these individual If he wanted to clarify, we would making sure people stayed safe. rights that they’re trying to protect? have been happy to hear that. We But to say you can’t meet poses a A: This time we’re facing now didn’t get a response to the letter. real problem. I think our client is is not a time with easy answers. the national law journal April 23, 2020

Maybe in the short term there was and small businesses on how to it from home and you’ve got kids an easy answer of everybody just think about the assistance avail- and family. How many times have hunker down, but if this is a long- able to them, including thinking I been in my office on a Zoom or term problem, there’s going to be about religious liberty issues there. Webex call, sometimes with the complex solutions that have to be We were involved in working with government or the client, and the worked out—solutions that bal- the administration on some of the door in my office opens and then ance physical safety and health, guidelines they ultimately put out my dog jumps up on the couch and religious and civil liberties gen- on that. behind me. You’re trying to have erally, and business and people’s I don’t love not seeing people. professional interactions with livelihoods. These are all complex I don’t know if everyone else has everybody having strange noises issues that require a balancing of a experienced this, but I feel like in the background of their calls. I lot of different factors. email has exploded exponentially. was on a call the other day where I think what the Justice Depart- Maybe because people can’t just there was this deep snoring, and ment was saying is, as people walk down the hall and stick their finally somebody fessed up that sworn to uphold the law and U.S. head in. I feel like I’m drowning in it was their bulldog. I think we’re Constitution, they want to make email. As somebody who likes the all dealing right now with strange sure other governmental entities social interaction at work, I feel background noises and learning to are thinking about the religious very disconnected. As much as you be flexible and understanding in liberty aspect and looking for ways try to stay connected, it’s hard. the process because we’re all going to balance it with all the competing Q: Going back to what you men- through it. interests. I think you see Attorney tioned about working with the Q: Once social distancing restric- General William Barr made state- administration on guidelines, was tions are lifted, do you have one ments more generally about civil that on what kind of nonprofits can place in mind where you’d really liberties of other types, and some of receive certain loans or funding? like to go first? these lockdowns. I think that this A: There’s religious liberty issues A: We were hoping to go to Swit- is just one aspect of it, making sure bound up in what are the strings zerland for vacation this summer that religion isn’t being pushed attached with the taking of funds. before my daughter, my second aside as something nonessential, Various religious groups have con- child, went to college. I think that because that’s not how the people cerns about how their beliefs might is out of the question. We’re sup- practicing view it. mesh with those. And so ulti- posed to go to Hawaii to see the Q: What has work from home mately the administration put out Maui Invitational basketball tour- life been like for you during the some guidance on that, but I was nament over Thanksgiving. I’m pandemic? Have you picked up any involved in a lot of counseling of not holding out any hope that I’m new hobbies or activities to pass the organizations, religious organiza- going to get anywhere before that, time with your family? tions in the run-up to that, before but given that my alma mater UNC A: What’s weird is I’ve been bill- there was guidance on the eve of is in the tournament this year— ing more time in the last month the loan program opening. It was fingers crossed, I’m holding my than before. Maybe because there’s an endless stream of requests and breath that I can make it for the not clear beginnings and endings friends of friends looking for guid- Maui Invitational in November. I’ll to the day, and I think everybody’s ance and help on this. be happy even if I make nothing experiencing that—you kind of Q: Has the firm done anything between here and there. just keep working on to the night. in particular to try to keep people That’s not even counting all the connected, trying to set up virtual Jacqueline Thomsen, based in other pro bono work I’ve been happy hours or anything like that? Washington, is a reporter covering D.C. doing in addition to this religious A: The firm and different groups courts and the legal side of politics. Con- liberty litigation. I’ve also been have been doing a lot. But all of tact her at [email protected]. On counseling a number of nonprofits it’s hard when you’re trying to do Twitter: @jacq_thomsen

Reprinted with permission from the April 23, 2020 edition of THE NATIONAL LAW JOURNAL © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or visit www.almreprints.com. # NLJ-04242020-446708