Wilmerhale's Matthew Martens on Religious Liberty, More Hours and 'Drowning in Email' During COVID-19

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Wilmerhale's Matthew Martens on Religious Liberty, More Hours and 'Drowning in Email' During COVID-19 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.
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