Unconstitutional Limitations

We are truly living in strange times. Every day there is more news about COVID-19—and every day the news we receive continues to be conflicted. For every news report shouting how bad things are I can find one that says the opposite. For every report that says things are going to get worse, I can find one that says the worst is over. For every report that says COVID-19 is far worse than the flu and is going to take tens, if not hundreds, of thousands of lives, I can find one that says those estimates are vastly overblown and the mortality rate is about the same as the flu.  But I am not going to discuss all of that right now. What I am going to discuss is the ongoing, flagrant violation of the Constitution that is happening all over the United States.

One of my favorite movies is A Few Good Men. My friend Dave and I watched it many times in high school as we imagined our Mock Trial successes leading us to influential (and lucrative) law careers. In that film, Kevin Bacon’s character, the prosecutor, says, “These are the facts of the case. And they are undisputed.” My dreams of a career in law never came to fruition, but I am about to present the facts…and they are undisputed. When I get to the part where I share my opinion I will make that clear.

On Monday, March 23, Ralph Northam, the governor of Virginia, issued Executive Order Number 53 (2020). The very first part of the directive states this:

Effective 11:59 p.m., Tuesday, March 24, 2020 until 11:59 p.m., Thursday, April 23, 2020, all public and private in person gatherings of 10 or more individuals are prohibited.

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Gov. Ralph Northam (VA)

Northam, when asked if churches could meet, said, “Any time that there’s a gathering of more than 10 people, we would certainly discourage that.” Discourage? That is not what the executive order says. The wording above is explicit: if there are more than ten people present, the gathering is prohibited. There is nowhere in the order that exempts churches or says anything about church services being discouraged. In fact, the end of the executive order says:

Violation of paragraphs 1, 3, 4, and 6 of this Order shall be a Class 1 misdemeanor pursuant to § 44-146.17 of the Code of Virginia.

The ban of public and private gatherings of more than ten individuals is in paragraph one. The order is remain in effect until it is “amended or rescinded by further executive order.” Therefore, Ralph Northam has declared that attending church services, if there are more than ten people present, is a crime.

Northam’s order, by the way, lists “essential retail businesses” that are exempt from the order and are allowed to remain open. Among them are lawn and garden equipment retailers and beer, wine and liquor stores.

Two days later, on March 25, Northam signed another executive order, this one ordering the postponement of elective surgeries due to COVID-19. The order did not, however, apply to abortions; those can continue.

In short, Ralph Northam has made it a crime to attend church but declared that liquor stores are essential businesses and abortion is essential surgery. I lived in Virginia for ten years; I have never been so glad I do not live there now.

Roy Cooper, the governor of North Carolina, issued an executive order in mid-March restricting mass gatherings to less than one hundred people. On March 23 he issued a new order, Executive Order No. 120, restricting such gatherings to less than fifty people (after twenty paragraphs trying to justify his decision that all began with “Whereas”).  Four days later, on March 27, he issued Executive Order No. 121, ordering all individuals in the state to stay at home other than for exceptions granted in the order. Wisely, Cooper included travel to and from places of worship as permissible travel, but he later specified that religious gatherings, including funerals, are subject to the limitations on gatherings listed later in the order. What is that limit? Ten people in a single room or space at the same time. Oh, and the provisions of that limitation will be enforced by state and local law enforcement, with violations punishable as a Class 2 misdemeanor.

Eric Holcomb, the governor of Indiana, issued Executive Order 20-08, a Stay at Home order. It states, “All businesses and operations in the State of Indiana, except for Essential Businesses and Operations, are hereby required to cease all activities within the State” except for minimum operations. It bans all public and private gatherings of any number of people outside of a single family home, and any gathering of more than ten people is prohibited unless exempted. Religious gatherings were exempted “provided they adhere to the CDC’s guidance on social gatherings.” Of course, that doesn’t help a whole lot, because the CDC’s guideline says that if there is minimal-to-moderate community transmission, gatherings up to 250 people are okay, but “the cutoff threshold is at the discretion of community leadership.”  The CDC’s recommendation to cancel is only applicable if there is “a substantial level of community transmission.” This is the equivalent of a child asking mom for permission to go to a party, mom says, “My answer is no, but ask your father.” Dad then says, “I don’t see a problem with it, but you have to listen to your mom.” So, Eric Holcomb creatively made it a crime to attend church. He can point to the order to say that he didn’t, but in reality, he did. And the order is enforceable by state and local law enforcement.

Governor Tim Walz of Minnesota, issued Executive Order 20-20 in which he ordered that “all persons currently living within the State of Minnesota are ordered to stay at home or in their place of residence except to engage in the Activities and Critical Sector work set forth below.” The only allowance made for religious activities was for “officials, workers, and leaders in houses of worship and other places of religious expression or fellowship, wherever their services may be needed. This category also includes workers necessary to plan, record, and distribute online or broadcast content to community members.” In his order, Walz urged Minnesotans to “voluntarily comply” but added that “a person who willfully violates this Executive Order is guilty of a misdemeanor and upon conviction must be punished by a fine not to exceed $1,000 or by imprisonment for not more than 90 days.”

I could keep going, because it is certainly not just these four governors that have signed executive orders like these. If I go through every example, though, most readers will lose interest and miss the point I am endeavoring to make. To make that point, I am going to focus in particular on the orders signed by Tim Walz in Minnesota and Ralph Northam in Virginia. But before I do, it is necessary to look first at the United States Constitution.

The First Amendment reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I am sure you noticed that there is no exception given. There is no caveat. No asterisk. No escape clause. Congress cannot make a law that prohibits the free exercise of religion or the peaceable assembly of “the people.” You can read through Articles I and II of the Constitution if you would like, but you will find nothing there giving either the Congress or the President any authority to violate the First Amendment. There is, therefore, no constitutional authority for the federal government to restrict peaceable assemblies or to prohibit the free exercise of religion.

More than any of the other executive orders cited here, Tim Walz relies heavily on the recommendations and actions of the federal government to justify his order. “This Executive Order is consistent with a growing nationwide effort to contain the spread of COVID-19,” the first full paragraph on page two begins. He cites President Donald Trump’s March 16 guidelines to limit gatherings to not more than ten people and points out that as of March 24, “twenty-four states representing almost 200 million Americans have issued orders or public health directives closing non-essential businesses or limiting residents from participating in non-essential activities.”  You have to give Walz credit for his efforts to legitimize his order, but there is a significant problem. Neither President Trump nor any of those twenty-two states have the authority to do what Walz is claiming validates his actions. To say that because twenty-two states have issued similar orders is about as valuable as telling a police officer who has pulled you over for speeding that everyone else is doing it. Neither popularity nor commonality equal legality.

Walz references President Trump and he even correctly states that the president issued guidelines. It is true that those guidelines say “avoid social gatherings in groups of more than 10 people. But a guideline is not a law. A guideline cannot carry a legal penalty. A guideline is, by definition, “a general rule, principle, or piece of advice.” Synonyms for “guideline” include recommendation, suggestion and advice. Regardless of what you think of President Trump, he has, thus far, recognized that he cannot violate the Constitution—even for what some might claim is the best interest of the country.

Walz’s order says that “practicing social distancing at all times” is “required to mitigate the community spread of COVID-19 in Minnesota and nationwide.” The italics are mine, but those are important words, because they leave no wiggle room. There is no exception to “all times” and no exception to “required.”

Walz also cites the Department of Homeland Security’s Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response, issued on March 23. That’s all well and good, but if you check that guidance you will find that it says, in bold print, “This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard.” Why is it only advisory in nature? Because the Department of Homeland Security is a federal agency and no federal agency can violate constitutional rights. Furthermore, this guidance is designed to prevent state and local governments from shutting down work that is absolutely essential for national security and other necessary infrastructure.

Walz’s order cites Minnesota Statutes 2019, section 12.21, subdivision 1, as giving him the authority to “control the state’s emergency management as well as carry out the provisions of Minnesota’s Emergency Management Act.” Here’s the rub, though: that statute only gives the governor such authority when there is “a national security emergency,” when there is “an energy supply emergency,” or “during the existence of an emergency resulting from an incident at a nuclear power plant that poses a radiological or other health hazard.” None of those apply to the COVID-19 situation.

Minnesota Statutes 2019, section 12.21, subdivision 2 allows the governor to declare a peacetime emergency. The only allowance for such a declaration that fits with COVID-19 is if the virus is considered an “act of nature.” That could be debated, but let’s give him the benefit of the doubt. The emergency also has to be one that “endangers life and property and local government resources are inadequate to handle the situation.” Well, the virus does endanger life, but are the local resources inadequate? That could be debated too, since the actual numbers are no where near the projections, but again, let’s given him the benefit of the doubt.

This is where it becomes necessary to look at the Minnesota Constitution. It includes a right to free exercise of religion but, interestingly, it also includes a caveat. Here is how Section 16 reads:

The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.

Here is why it is interesting. First, it contradicts itself. Notice that it says that the right to worship God “shall never be infringed” but then later says the this right “shall not be so construed as to excuse acts… inconsistent with the peace or safety of the state.” So, in Minnesota, your freedom of religion cannot never be violated…except when it can. Second, it violates the First Amendment of the Constitution of the United States. Or does it? The Tenth Amendment is an important one, especially for those who favor a limited federal government. It says,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

We have already seen that the Congress does not have the power to infringe upon the free practice of religion; the First Amendment says that in no uncertain terms. But unless the Constitution prohibits states from doing so, does the Tenth Amendment mean that states can infringe upon that right? Yes, that is what it would mean…but for the fact that Constitution does prohibit states from doing so. Specifically, in the Fourteenth Amendment. It reads, in part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Legal scholars call this the incorporation doctrine, and acknowledge that prior to its ratification in July 1868, the Bill of Rights only applied to the federal government. In the 1934 case Hamilton v. Regents of the University of California, the Supreme Court’s decision states, in part, “There need be no attempt to enumerate or comprehensively to define what is included in the ‘liberty’ protected by the due process clause.” In his concurring opinion for that case, Justice Cardozo said, “I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states.”

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United States Supreme Court

In the 1940 case Cantwell v. Connecticut, the Supreme Court’s ruling stated, “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.” The decision also states,

The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.

Incompetent here does not mean that the state legislatures do not know how to; it means what that word literally means—that they are not able to. And they are not able to because the Constitution prohibits it. The decision goes to say,

Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. … it safeguards the free exercise of the chosen form of religion.

The Cantwell decision also states that while the freedom to believe is absolute, the freedom to act is not. “Conduct remains subject to regulation for the protection of society,” the decision says. If there is any justification for the government—state or federal—to infringe upon the free exercise of religion, this is where such exceptions would be found. The decision, then, is vital to understanding this entire situation.

Before looking at what the decision says, it is worth noting the details of the case. Newton Cantwell and his two sons, who were Jehovah’s Witnesses, were arrested and charged with violating Connecticut law. The three men had been going house to house, peddling books and tracts and soliciting financial donations. One of the books, entitled Enemies, attacked the Catholic faith—and 90% of the residents in the neighborhood where the Cantwells were arrested were Catholic. The statute the Cantwells were accused of violating read,

No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council.

The Cantwells claimed that their actions were not within the statute because they were only distributing printed material. However, the trial court found that,

in addition to the sale of the books and the distribution of the pamphlets, the defendants were also soliciting contributions or donations of money for an alleged religious cause, and thereby came within the purview of the statute.

That court claimed that it was not the free exercise of their religion that prompted the charges against the Cantwells, but their solicitation of funds. The court also held that the statute was legal, since it was “an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes.”

Now, with that understanding, what the Supreme Court say were justifiable exemptions to the absolute right of religious freedom?

The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee.

If this were the extent of the ruling, it would leave orders banning religious gatherings on tenuous ground. Protecting the health of the public may be a “permissible end,” and since livestreaming and other means of preaching or disseminating religious views are still available, one could argue that banning in-person church gatherings is permitted per the Cantwell decision. That ignores the caveat, though, that such regulations must not “unduly…infringe upon the protected freedom.” One could argue that prohibiting the in-person gathering of religious groups does unduly infringe—especially for adherents to the Bible, which includes the instruction not to give up meeting together (Hebrews 10:25).

This was not, however, the extent of the ruling. It continued,

It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment.

Most of this is not applicable to the current situation, because I am not discussing solicitation or meeting occurring on public streets. The permission given here for “other respects” is confined to safeguarding the “peace, good order, and comfort of the community.” It would have to be successfully argued, then, that prohibiting religious gatherings is a justifiable prohibition for the government to enact and enforce in order to safeguard those things. Church gatherings ted to prompt peace, so that’s out. Good order and comfort could, arguably, apply to the COVID-19 situation, but again, the successful argument that violating the First Amendment is justified has not been made by anyone that I have seen.

The decision later asserts,

Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury.

But the “injury” here is not physical injury or physical health. It refers to the injury of fraud. That is made clear in the decision. And later, the decision states that part of Cantwell’s conviction is to be set aside because the state’s interests did not outweigh Cantwell’s. Specifically,

The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State’s interest … has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.

So, here’s the conclusion of the matter:

When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.

What does all that mean? For the purposes of this discussion, it means that states can only ban religious gatherings of more than ten people if they can prove that allowing such gatherings poses an immediate threat to public safety. To ban them only “under the guise of conserving desirable conditions” is not permissible. It is, in short, unconstitutional. To wit, the Cantwell decision continues,

[T]he people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.

I realize that this is getting quite lengthy, but I want to also point out DeJonge v. Oregon, a 1937 case in which the Supreme Court ruled that the state cannot violate the freedom of assembly even if the what is said at such a meeting violates the freedom of speech by inciting violence.

If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

The decision was, then, that abuses themselves could be dealt with by the state, but the freedom of assembly could not be curtailed. For COVID-19, then, this means that if a church were to engage in activity that would knowingly cause or contribute to the spread of the virus, there may be consequences for that—but that fact that a religious gathering might contribute to the spread of the virus cannot be used to violate the freedom of assembly. Government, put simply, cannot punish people, or curtail their rights, for something that they might do.

Now, what about Ralph Northam’s executive order?

Well, Northam, too, tries to manipulate the CDC recommendations to serve his own ends. His order reads, in part,

Guidance on School Closures from the Centers for Disease Control and Prevention indicates that medium term closures (8-20 weeks) have greater impact on minimizing the spread of COVID-19 than shorter term closures (2-8 weeks).

That is true, but only partially true. First of all, the CDC defines medium-term closure as 4 weeks. A closure of 8-20 weeks is classified as long-term. The CDC’s guidelines for school closure say that closures of 8-20 weeks have a greater impact on stemming spread based on “[m]odeling data for other respiratory infections where children have higher disease impacts….” No doctor anywhere has suggested that children have a high disease impact with COVID-19. Just the opposite, in fact.

Furthermore, the CDC’s guidelines say that long-term closure is likely to increase the amount of student congregating outside of school, which is also problematic, since such gatherings…

Will increase risk to older adults or those with co-morbidities, as almost 40% of US grandparents provide childcare for grandchildren. School closures will likely increase this percentage.

Plenty of other health care organizations and officials have echoed the probability that students are safer going to school than staying home. But I am getting sidetracked, as my primary focus here is the lack of governmental authority to prohibit religious gatherings.

Northam cites Article V, Section 7 of the Constitution of Virginia as the authority for his order, but if you read Article V, Section 7 you will find absolutely nothing even remotely related to Northam’s order. Even a creative reading of the section would leave you stumped trying make a connection. But Northam also cites § 44-146.17 of the Code of Virginia as authority, so what about that?

Well, at least this one has some semblance of relevance, as it deals with emergencies and disasters. And it does seem, at first, to allow Northam to do what he has done, as it reads, in part,

Executive orders, to include those declaring a state of emergency and directing evacuation, shall have the force and effect of law and the violation thereof shall be punishable as a Class 1 misdemeanor in every case where the executive order declares that its violation shall have such force and effect.

Such executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth.

But what else does Virginia law say? The Code of Virginia, in § 32.1-48.05, says,

Upon a determination by the State Health Commissioner that exceptional circumstances exist relating to one or more persons in the Commonwealth who are known to have been exposed to or infected with or reasonably suspected to have been exposed to or infected with a communicable disease of public health threat…the State Health Commissioner may invoke the provisions of this article relating to quarantine and isolation.

But how are quarantine and isolation defined? One need only look to § 32.1-48.06 to find out:

“Isolation” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are infected with or are reasonably suspected to be infected with a communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other uninfected and unexposed individuals.

“Quarantine” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are present within an affected area, as defined herein, or who are known to have been exposed or may reasonably be suspected to have been exposed to a communicable disease of public health threat and who do not yet show signs or symptoms of infection with the communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other unexposed and uninfected individuals.

Notice that isolation requires infection, or reasonable suspicion of infection, and quarantine requires known or reasonably suspected exposure to the communicable disease or location within an affected area. Northam, like so many others, is declaring his entire state to be an affected area. The code, however, clearly indicates the existence of unexposed and uninfected individuals. The next part of the code says, “Any quarantined persons shall be confined separately from any isolated persons, to the maximum extent practicable.” That does not seem to allow for state-wide quarantining. Furthermore, it says, “Any quarantined or isolated persons shall be immediately released from quarantine or isolation upon a determination by the State Health Commissioner that such quarantined or isolated persons pose no risk of transmitting the communicable disease of public health threat to other persons.” That would mean that even if state-wide quarantining is permissible, the state would be required to test every person in the state in order to determine whether or not they pose a risk of transmitting the disease.

The code goes further. Specifically,

In the case of any person who has been quarantined or isolated in a location other than a medical care facility, the State Health Commissioner shall authorize health care professionals to enter the premises of quarantine or isolation. No person, other than such authorized health care professionals, shall enter the premises of quarantine or isolation, unless authorized by the State Health Commissioner.

If you this section is applied literally, if the entire state is quarantined, no one other than a health care professional is allowed to enter the state, or any area of the state, unless the State Health Commissioner gives authorization for them to do so. I am guessing that the commissioner has not issued 8.5 million such authorizations.

The code also says that anyone in Virginia subject to a quarantine order can appeal it by filing a petition for an appeal and serving it to the State Health Commissioner or his legal representative. Any such appeal is to be heard within 48 hours. Of course, precisely because he does not have the authority to order a state-wide quarantine or isolation, and he no doubt is not interested in dealing with appeals, Northam has not used the words “isolation” or “quarantine” in his executive order.

The Virginia Code includes a great deal about isolation and quarantine. It even includes, in § 32.1-48.017, the authority for the State Health Commissioner to require the use of a public or private building to implement orders of quarantine or isolation. What it does not anywhere include is the authority of the governor or the State Health Commissioner to prohibit the use of public or private buildings for any reason, and certainly not for religious gatherings.

Virginia’s constitution includes a Bill of Rights, and Section 16 deals with religion. That section includes this glorious run-on sentence:

That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion , according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.

By prohibiting public and private gatherings of more than ten people, and not making an exception for religious gatherings, Ralph Northam is violating the Constitution of the Commonwealth of Virginia.

I am by no means the first person to address the questionable constitutionality of so many executive orders stemming from COVID-19, specifically when it comes to banning religious gatherings. But many of the others dealing with this issue are concluding that the states do have the right to ban them. Damon Root, writing for Reason, for example, says that “the Supreme Court has also said that religious liberty does not trump all forms of government regulation, even when the regulation clearly impacts a specific religious practice.” In support of that assertion he cites Justice Scalia’s decision in Employment Division v. Smith (1990). In that decision, Scalia said the use of peyote as part of a Native American church ceremony was not protected in so far as that when its use resulted in a failed drug test the state could still withhold public benefits from the individuals who failed the tests. In his decision, Scalia wrote, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” That is exactly the point, though; the state is not free to regulate religion or the free exercise of religion. Root suggests that because the bans on mass gatherings apply across the board and not only to religious gatherings, “they would therefore likely pass muster under Employment Division v. Smith.” I disagree wholeheartedly, and I feel rather confident that Justice Scalia would too if he were still here for us to ask him.

David French, writing for The Dispatch, says that the “underlying statutory structure is complex and varied at the federal, state, and local levels, but the relevant constitutional principles are relatively simple, they make sense, and they’ve been understood and applied since the nation’s founding to safeguard public health.” States, French says,

possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.

Ahem. I believe we have clearly established that there is a specific limitation. It is in the First Amendment, extended to the states in the Fourteenth Amendment, and it exists in state constitutions.

French also asserts that “the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact ‘quarantine laws’ and ‘health laws of every description.’” That is true, but is taken out of context. That 1824 case dealt with the regulation of navigation and commerce and the differentiation of state and federal powers when it comes to such regulation. “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress,” the decision says. The entire focus of the case deals with competing steamboat licenses possessed by Ogden and

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John Marshall

Gibbons, one granted by New York and the other granted by Congress. The case is important both for confirming congressional authority over interstate commerce and for confirming that federal law trumps state law. But if we could get Chief Justice John Marshall’s opinion I am quite confident that he would say that nothing in his opinion was intended to relate in any way to the COVID-19 fiasco.

French also quotes Jay Cost of the American Enterprise Institute, who tweeted that “a state legislature has ‘the sovereign power to make you go home if you are a menace to “public health.”’” I agree with that, but it would necessitate confirming that someone is indeed a menace to public health. French, too, quotes Employment Division v. Smith and says that the executive orders would not violate the neutral law of general applicability since they limit gatherings not only in churches but also in restaurants, bars, theaters, etc. In fact, French goes so far as to state that

Even laws that directly curtail First Amendment freedoms will be upheld if they can pass a legal test called “strict scrutiny,” which requires the government to demonstrate that its actions advance a compelling governmental interest and are enacted through the least restrictive legal means.

This is where differences of opinion and legal interpretation come into play. French says churches get no special treatment or consideration because the ban on gatherings is neutral. I say the ban on gatherings is itself a violation, but that churches are entitled to special consideration because the freedom of religion is so sacrosanct. French says the orders would pass any test questioning whether or not the least restrictive means were utilized. I disagree. According to French,

At present, that test would be easy to pass. There is unquestionably a compelling governmental interest in protecting the public from COVID-19, a communicable disease far deadlier than the flu. Because it is so easily transmitted through person-to-person contact, it’s easy to argue that even broad bans on public gatherings are among the least restrictive means of advancing the government’s interest.

Again, I disagree. To say that such an argument could be made so easily is to ignore the fact that some states, and other countries, have not implemented such draconian measures, to say nothing of the fact that they are not even consistent with the recommendations of the CDC.

John Inazu, a professor of law and religion at Washington University, wrote an article on this subject in The Atlantic. In it, he writes,

Let’s assume for the sake of argument that a church challenging a shutdown order would receive the highest level of legal protection, a test referred to by courts as “strict scrutiny.” Under this test, the government would need to articulate a compelling interest, and its directive would need to be narrowly tailored and executed in the least restrictive means toward accomplishing its interest. That’s a very high standard, and one that is not usually satisfied. But the government is likely to meet it here. The widespread protection of human life is clearly a compelling government interest, and in the specific circumstances of this crisis, given what we know now of the virus, a shutdown order, especially one aimed at gatherings over a certain size, is both narrowly tailored and the least restrictive means.

You will not be surprised to learn that I disagree. First, a shutdown order prohibiting gatherings over ten people is not narrowly tailored. Second, if the protection of human life is a “clearly a compelling government interest” that justifies shut down orders, then any and every state government should be allowed to shut down abortion providers permanently. Instead, we have Ralph Northam calling them essential. The Atlantic tends to be incredibly liberal, but Inazu’s article is thoughtful and reasonable. I just do not agree with his conclusion.

I do not think that the ban on religious gatherings is the only unconstitutional thing happening right now, but I have chosen to keep that my focus here. Churches should absolutely consider not having in-person services during this time, and churches should consider guidelines from government and health professionals. But the government cannot force churches not to meet. If we make exceptions now, for this crisis, we will putting ourselves into a precarious position from which we may never recover.

1024px-Michigan_National_Guard_members_participate_in_inauguration,_Adjutant_General_swearing-in_190101-F-VX133-049
Gov. Gretchen Whitmer (MI)

Gretchen Whitmer, the governor of Michigan, issued Executive Order 2020-21, instituting a “Temporary requirement to suspend activities that are not necessary to sustain or protect life.” Part of that order stated that, outside of exceptions given, “all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.” It is effective from March 24 to April 13 and “a willful violation of this order is a misdemeanor.” However, her order includes an exception:

Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 14.

In an appearance today on FOX News Sunday, Gov. Whitmer said, “That’s an area we don’t have the ability to directly enforce or control.” Michigan’s Speaker of the House, Lee Chatfield, said on Facebook,

People have a God-given right to assemble and worship, and that right is secured by both the United States and Michigan Constitution. While I do not think that that right can be taken away by an Executive Order, I believe that as Christians we also have a duty to love our fellow man and play our role within society. My recommendation is to find ways that you can abide within the order to the best of your ability.

Whitmer and Chatfield have it right. Michigan is not the only state that has it right, but there are far more that do not than there are that do. If you live in the United States, check carefully the orders being issued by your governor. I am no fan of Andrew Cuomo, governor of New York, but I do admire him for saying, on March 26, regarding the shut down in New York,

If you rethought that or had time to analyze that public health strategy, I don’t know that you would say quarantine everyone. I don’t even know that that was the best public health policy. Young people then quarantined with older people was probably not the best public health strategy because the younger people could have been exposing the older people to an infection.

That’s an admission we seldom hear from elected officials. The COVID-19 virus is real. Common sense, appropriate precautions should be taken.

Andrew Napolitano, writing in The Washington Times, eviscerated all of the executive orders that are sprouting up and urged Americans to push back.

These decrees — issued by those who have no legal authority to issue them, enforced by cops who hate what they are being made to do, destructive of the freedoms that our forbearers shed oceans of blood to preserve and crushing economic prosperity by violating the laws of supply and demand — should all be rejected by an outraged populace, and challenged in court.

I couldn’t agree more.

 

Ralph Northam photo credit: Mark Warner / CC BY (https://creativecommons.org/licenses/by/2.0)

Supreme Court photo credit: Mr. Kjetil Ree. / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0)

John Marshall photo credit: U.S. Department of State from United States / Public domain

Gretchen Whitmer photo credit: 1st Lt. Andrew Layton, U.S. Air National Guard / Public domain

 

 

 

 

 

 

5 thoughts on “Unconstitutional Limitations

  1. Mr. Watson,

    Let me preface this series of reflections and questions by saying that they come from a place of good intention. Good intentions definitely aren’t the test of a thing’s veracity, but know that I am simply trying to gain more understanding as a distant observer about the larger societal situation and the more specific situation at Sunshine (and other schools across the country).

    In a recent sermon you delivered on 1 Chronicles 20 at St. Lawrence, you spoke about our culture’s tendency to respond to societal issues and ills with paralyzing fear and outrage instead of first seeking the Lord through a prayerful disposition. I wholeheartedly believe that this should be our response as Christians to all situations, even though that isn’t always the way it plays out in our functional practices. And certainly this disposition applies to all situations, not just the ones that feature more apocalyptic settings. I appreciate your timely words here. In the words of Marilynne Robinson, “fear is not a Christian habit of mind.” And to that end, I say “amen.”

    However, as someone who has just considered this post, your call to action from Andrew Napolitano, speaking about governments sanctions related to COVID-19, states, “these decrees–should all be rejected by an outraged populace, and challenged in court.” Frankly, this type of response seems to diverge from the prayerful disposition put forth in the sermon. From my perspective, it seems that an application of the sermon is only good insofar that it doesn’t infringe upon constitutional rights. If these rights are infringed upon, then “outrage” is certainly a proper response, given the tone of this post. I think this line of reasoning can tend towards conflating Constitutional rights with biblical mandates.

    So the questions I have are: to what extent are Christians to have a prayerful disposition in regards to cultural issues? Is it okay to be “outraged” when certain governmental rights are infringed upon? When is it right, in the name of justice, to argue strongly against how the government exercises its power? Right now, I would venture to say that you would argue it is one of those times, which is fair to how you see this current situation. I don’t want to read you uncharitably and put words in your mouth that aren’t yours.

    I am convicted by the story of when the Israelites are in exile in Babylon and the prophet Jeremiah commands them to “seek the welfare of the city” (Jeremiah 29:7) as they are being severely mistreated from a human rights standpoint. Certainly the contemporary church is not ancient Israel under the hand of the dictatorial and oppressive rule of Babylon, but I believe the principle still applies. How are we to “seek the welfare of the city” as it applies to our direct contexts? What does it look like to care for the people that are under our leadership or are in our own community? Could it be that times like these actually expose our personal and communal idols more than divide those that are right from those that are wrong?

    Your argument from a nuanced, originalist interpretation of the Constitution here is not one that I necessarily disagree with as a historian in training. You are probably right, given how you interpret the Constitution, that Constitutional rights are being infringed upon at this moment. But I don’t necessarily think the sky is falling. Yet, to see this as anything but an unprecedented time is to misread the reality of what is going on, in my view. Prudent decision-making is the way forward. In the reality of what is happening now with school closures and the like, our local communities need our best.

    Frankly, I wonder if this is the best time to be arguing in a couple thousand words over Constitutional rights. If you think that it is, which I suspect that you do, then I can respect that at face value. With schools closed for the foreseeable future, our communities deserve the best we have to offer, by the guidance of the Spirit, in a posture of prayer–to which you wisely spoke to in your sermon. My prayer is that we as Christians continue in a posture of prayer to become the non-anxious presence our communities need us to be.

    Best regards,
    Cole

    1. Hi Cole,

      I appreciate your response, and I thank you for reading that incredibly long post all the way to the end! I do also appreciate your good intentions and you respectfully pushing back on some of what I said. Let me insert here that I actually did not have SBA in mind when writing that post. Some of it may have applied, but my focus was strictly on churches and the actions being taken in our country right now by some state and local leaders that are restricting the freedom of assembly and the freedom of religion. I do not think that anyone could argue that those freedoms are being curtailed; I think the argument comes in as to whether or not such curtailing is permissible in times of crisis or emergency.

      It is quite possible that we may disagree in part on this issue, and it is also possible that we may be misunderstanding each other in part. Either way, I welcome the opportunity to engage in discussion. The primary motivation for my blogging is to prompt readers to think. If I have given them something to think about, then I have been successful. If they decide to agree with me, that’s great, too!

      I think we may have different readings of Andrew Napolitano’s “outraged citizens.” I read it more as that citizens should be outraged–offended, shocked, affronted–that these constitutional liberties are being violated and that such outrage should lead to considered but appropriate response. I do not read it as encouraging citizens to act out in outrageous ways, to violently disregard the government, etc.

      It was not my intention to suggest that constitutional rights and biblical mandates carry the same weight or that Christians should be just as upset over one as they are over the other. Having said that, though, the biblical instruction for Christians to obey the government is limited when that government acts contrary to Scripture. I do not think that I have ever heard anyone argue that Christians that meet secretly in opposition of government edicts in countries that restrict and even persecute Christianity are violating Scripture. Why would it be different now in the United States? Does a public health scare provide a legitimate reason to allow a government to do that which we would never, in other circumstances, allow it to do? That’s worth a discussion, and I am open to the other side, but my inclination is no.

      I do not think you would be putting words in my mouth to say that I am suggesting that this is a time “to argue strongly against how the government exercises its power.” The key word there, again, is argue. I’m not looking to lead a 21st century version of Shays’ Rebellion, I assure you. But I do not think that a “prayerful disposition” and outrage over government actions are mutually exclusive, either.

      I do not disagree with you about the importance of seeking the welfare of the city, so to speak, or caring for those in our community. I am not even arguing–here or in the blog post–that churches should not temporarily stop meeting in person. What I am arguing is that that is a decision that should be made by the leaders of that church, not by the government (at any level).

      I do not think that the sky is falling, either… Nor, however, do I think that this is an unprecedented situation. In my lifetime it is, certainly, but not historically. But again, yes, prudent decision making is necessary.

      I can respect your assertion that this is not the best time to argue constitutional rights because I think what you are saying is that that argument should take a back seat to doing whatever can be done to minimize the spread of this virus. However, if opposing a violation of rights at the time they are occurring is not the time to do it, when is? If one were to suggest that we wait until things settle down and get back normal before having this discussion, I would have to ask, how do we know that will happen? While I do not have a specific example I could point to, I suspect that there have been innumerable people throughout history who thought that a government overreach was temporary, who thought that once a crisis was over that it would be a good time to reflect and see whether or not such steps should have been taken then or should be taken again in the future. There would also be many examples, I am afraid, of such individuals who did not ever find such a time came to be.

      I might be misunderstanding your comments on my sermon, and if I am please let me know, but I did not intend anything in that message to imply that we should passively accept whatever guidance and direction the government sends our way. Quite the opposite, in fact, as I made the point that doing so usually stems from fear.

      I have to confess that when I posted this I thought that it was unlikely that we would actually see law enforcement prevent church gatherings or charging those who did gather, but I was wrong. A pastor was arrested in Florida for having services this past Sunday. From what I have seen I don’t think I would be in agreement with much of his theology, but for a pastor, leading a church service, to be charged with a crime for doing so should make us all quite nervous.

      1. I appreciate you taking the time to carefully construct a response to the issues I brought up. In fairness, your counter to my assertion about this not being the best time to discuss Constitutional issues by essentially asking “when is the right time if they are being violated now?” is actually how I would have responded to myself, if I were defending this post. I appreciate you calling that question to attention. It has made me think deeper about this issue.

        It should be noted that my assertion here comes from a larger political question around how Christians bear witness to the Kingdom of God as both exiles in this world and citizens of the Kingdom who are called to “seek the welfare of the city.” That’s a question that carries the weight of both deeply theological and political concerns.

        I think that a long post dedicated to an originalist interpretation of the Constitution in the unprecedented times in which we live reflects a tendency within American evangelicalism to conflate partisan political engagement with Christian witness. Put another way, the type of political rhetoric in your post in times of distress exposes partisan predispositions. We live in the political environment of either left or right, with little room for healthy dialogue in the middle. Most political engagement in the public sphere is shaded either red or blue. The Democratic party’s absolute reluctance and ultimate disdain over the inclusion of persons that hold to pro-life views provides an example here. The majority of the Republican party’s initial reluctance and ultimate (staunchly unwavering) acceptance of President Trump provides an example from the other side of the political aisle.

        I believe Christian political engagement should rise above the partisan entrenchment, engaging both political parties in healthy dialogue. Sometimes Christian engagement may look Republican. Sometimes it may look Democrat. And sometimes Christian political engagement looks like exposing our own political hypocrisies individually and within parties. (As an aside, I think the American partisan game will someday run its course as with all worldly political systems up to this point. For why I think this, consult Why Liberalism Failed by Patrick Deneen. Great reflections combining history and political science in that book).

        That said, this type of defense of the Constitution seems to fall on the right side of the political aisle, which is fine, given how you view the Constitution. I don’t necessarily think that the pastor that was arrested in Florida is a foreshadowing in how the government will proceed after this pandemic. Even though it is troubling, it is an outlier example that I don’t believe will be the norm. I can’t predict the future, though. Frankly, if constitutional representative democracy runs its course in America, Christians should not fear. The Christian church throughout the ages has survived much worse, even potentially thriving more so in the context of intense persecution both past and present.

        In short, I think times like these require a patient, prayerful, and hopeful posture by Christian leaders, marked by an understanding that “the kingdom is not of this world.” Know that I am not arguing for a mushy political quietism, as that is certainly not a Christian response either. The crux of my critique of this post centers on the question of where our ultimate hope is pointed. The eschatological implications of a new heaven and new earth breathes into how we engage publicly in the present.

        The inherent silliness of the partisan political game points to a broken political system, whose repair will only come in the quiet, realistic places of local communities, like Sunshine Bible Academy and Denver Christian School and many other localized units. I don’t think healthy public engagement exists in fighting the “culture war” at the national level, and if our pronouncements on social issues continually exist in the echo chambers of national politics and national concerns, I believe we are simply playing the game of partisan politics and giving into the rhetoric that so easily entangles and divides. I could be deeply wrong on this point, but my reading from whom I believe to be wise, Christian cultural commentators point me to this type of conclusion.

        To provide a sampling of how I arrive at this sort of opinion, see the articles below. In terms of a longer treatment on this question, see James K. A. Smith’s cultural liturgies series, particularly his treatment of political (public) theology in Awaiting the King, wherein he provides helpful commentary and analysis on the important work done by British theologian Oliver O’Donovan in The Desire of the Nations.

        To end and summarize my critique, Matthew Anderson, in his article “Communicating the Gospel in a Partisan World,” provides a better way to put it than I can:

        “…there may be times when the most pointed democratic action imaginable is simply to decline to participate. The responsibilities of caring for our neighbor doubtlessly include the use of government to secure justice for them—but they also include the responsibility of reminding the principalities and powers that the kingdom to which we owe our fealty is “not of this world.”

        Such a stance will be intolerable to those whose vision can extend no further than realities of injustice that seize us: abstention is betrayal, for it is (we are told) to be nothing more than sanctioning the evils the other side endorses. Yet abstention also untethers our affections from the machinations of our political parties, freeing us from the need to rejoice at the triumph of our candidate (and in our neighbor’s loss). The freedom of our hearts from such political winds, though, can only be responsible if we concurrently turn our energy toward an alternate form of politics, one which has the worship of God at its center and which seeks to enact Christ’s kingdom within the local communities we live within.”

        Thank you for thoughtfully and charitably engaging me in this dialogue. Christian charity in these types of discussions is needed, so I do sincerely apologize if you feel that I have misread or misrepresented your opinions in some way. If so, please feel free to correct me.

        Article links:
        https://mereorthodoxy.com/communicating-gospel-partisan-world/
        https://mereorthodoxy.com/public-reasoning-in-a-pandemic/
        https://www.cardus.ca/comment/article/the-political-captivity-of-the-faithful/

        Book references:
        – Awaiting the King: Reforming Public Theology by James K. A. Smith
        – Why Liberalism Failed by Patrick Deneen

      2. Thank you for your reply. I do not think that you are misrepresenting my opinions in any way. I do not agree with all of the conclusions that you draw. Specifically, when you say “the type of political rhetoric in your post in times of distress exposes partisan predisposition,” I would disagree with you. I agree that my interpretation and defense of the Constitution falls more on the right side of the political spectrum, but I don’t know that I would necessarily say the political aisle. I have been plenty critical of Trump and other Republicans when I feel it appropriate. I have also defended those who I disagree with politically. See recent posts on Mitt Romney and Tulsi Gabbard, for example. And in this particular post, the governor I commend for taking the right approach–Gretchen Whitmer of Michigan–is a Democrat.

        You said, “I don’t necessarily think that the pastor that was arrested in Florida is a foreshadowing in how the government will proceed after this pandemic.” I don’t either, really. But I do not think that makes it okay for the government to proceed that way during this pandemic, either. And while I agree with you when you say, “if constitutional representative democracy runs its course in America, Christians should not fear,” I do not think that means that Christians should just sit back and let that happen, either. While it is true that government cannot save us and human government is not where we are to put our trust or our confidence, I see nothing in the Bible that would suggest that we should be passive about what is going on in our government, either.

        While I can appreciate some of the points that Anderson is making in the quote you conclude with, if taken to their logical end it would mean that there are times when it would be better for a Christian not to vote. I disagree with that. I agree that we need not rejoice in the triumph of our candidate or in our neighbor’s loss, but I do not agree that Christians should absent themselves from politics or the political process. I also disagree that we can justify such abstention by “concurrently turning our energy toward an alternate form of politics,” because as Anderson finishes that sentence is a description of something I do not consider political at all. Worshiping God and seeking to enact Christ’s kingdom within our local communities is both not the role of the political process and should be the concurrent focus of Christians who are attentive to, and involved in, what is happening politically.

        I will take a look at the articles that you have linked when I have time and will add the books to my “to read” list. I do enjoy reading other perspectives and opinions and I appreciate the recommendations.

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