I realize that some people considered my post about the unconstitutionality of government restrictions on gatherings to be alarmist. We are in the midst of an unusual situation that calls for unusual measures in order to save lives, after all. Before I go on, let me clarify that at no time did I intend to suggest that all recommendations and guidelines should be ignored or that COVID-19 is a farce. I understand that the virus is real, I understand that there may be need for precautions and even extraordinary steps to be taken. At the same time, please realize that there are real, informed and legitimate differences of opinion on what those steps should be. Even more importantly, please realize that someone—namely, at the moment, me—can simultaneously value life, acknowledge the threat that is COVID-19 and still believe that the Constitution should not be violated. I happen to believe that constitutional protections are there for a reason and need to be protected even when they are most inconvenient.
When I posted Unconstitutional Limitations I actually hoped that my concerns were a bit overwrought…that the restrictions on group gatherings, and thus on religious gatherings, was going to be the extreme end of end of government violations of the Constitution. I hoped that we would make it through COVID-19 and then, as cooler heads prevailed, people would look back and realize that the actions taken during the scare were not okay and could not be permitted to happen again. Sadly, I was wrong.
In the past week, there have been more, and more egregious, examples of government overreach and constitutional violation by state and local governments. President Trump still seems to realize the constitutional limitations on the federal government and has even expressed them in explaining why he is not issuing a national stay-at-home order. Just yesterday, at his White House briefing, CNN’s Jeremy Diamond asked President Trump why he is not following the recommendations of Dr. Fauci and others and issuing such an order. “We have a thing called the Constitution, which I cherish, number one,” was Trump’s response. He did not stop there, though. He continued, regarding the eight governors that have not issued state-wide stay-at-home orders, “Number two, those governors, I know every one of them, they’re doing a great job. They’re being very, very successful with what they’re doing. And, as you know, I want governors to be running things. In some cases, we’ll supersede.” That is called federalism, and that is exactly how the United States is supposed to operate.
My own state’s governor, Kristi Noem, is one of those that has not issued such an order. When asked why, she said, “South Dakota is not New York City. The calls to apply for a one-size-fits-all approach to this problem is herd mentality. It’s not leadership.” She expressed her respect for the Constitution, and then said, “The people themselves are primarily responsible for their safety. They are the ones that are entrusted with expansive freedoms. They’re free to exercise their rights to work, to worship, and to play. Or to even stay at home, or to conduct social distancing.” It is indeed a sad day when it is newsworthy and even controversial for a governor to say that the people have been entrusted with “expansive freedoms” and are responsible for the how the utilize those freedoms.
Last Monday, Rodney Howard-Browne, the pastor of The River at Tampa Bay church, was arrested for “‘intentionally and repeatedly’ defying emergency orders mandating that people maintain social distance and stay at home,” according to the New York Times. The Hillsborough County sheriff announced that he had the arrest warrant and Howard-Browne turned himself in. He was freed less than an hour later after posting bond. The sheriff, Chad Chronister, said this regarding the arrest:
His reckless disregard for human life put hundreds of people in his congregation at risk and thousands of residents who may interact with them this week in danger. Our goal here is not to stop anyone from worshiping, but the safety and well-being of our community must always come first.
As best I can tell from a very cursory exploration of The River at Tampa Bay’s web site, I do not agree with a lot of what they teach and practice. But that doesn’t matter. What matters is that a pastor was arrested for exercising his constitutionally-granted rights to religion and assembly.
The good news is that the Hillsborough County Council recognized the dangerous ground upon which their sheriff had tread and voted on April 2 to reverse its order and recognize churches as essential. The mayor wanted to impose ten-person limits and six-foot distancing requirements on churches by the Council overruled her recommendation. Also, on April 1, Florida governor Ron DeSantis issued Executive Order 20-92, amending 20-91, and declaring religious worship as an “essential activity.” DeSantis said, “I don’t think the government has the authority to close a church. I’m certainly not going to do that.” Governor Greg Abbott issued a similar executive order on March 31, GA 14, which includes “religious services conducted in churches, congregations, and houses of worship” as essential services. According to an article in The Guardian, Delaware, Louisiana, Michigan, Mississippi, New Hampshire, Tennessee and West Virginia have also issued exemptions for religious gatherings and, as mentioned in the previous post, Michigan has exempted them, as well.
Robin Fretwell Wilson, Brian Smith and Tanner Bean authored the essay “Defiant Congregations in a Pandemic: Public Safety Precedes Religious Rights,” which can be found on the web site of the Canopy Forum. “Now is not the time to stand on our rights. It is not the time to pursue contentious religious freedom claims in the courthouse. Instead, it is a time to lead by example, as so many congregations and people of faith have done,” they wrote. I have to disagree. Congregations need to prayerfully and carefully consider whether or not to meet in person, and I am by no means recommending that all churches decide to do so. But it is absolutely the time to stand on our rights. It may not be the best time to file “contentious religious freedom claims in the courthouse” but if it comes to that then yes, such action should be taken. Hopefully, that is not likely to happen. Hillsborough County was facing a lawsuit over its arrest of Howard-Browne, and it chose to back down.
Some leaders, though, may choose to push the matter, and if they do, laying down and allowing our constitutional rights to be trampled is not what anyone should do. On
March 27, New York City mayor Bill de Blasio said of churches and synagogues, “[Law enforcement] will inform them they need to stop the services and disperse. If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently.” Permanently. Jeremy Dys of First Liberty Institute said, “The American people will tolerate a lot during a time of a national pandemic. They will not tolerate government threats to permanently close Houses of Worship.” Ken Ham, founder and president of Answers in Genesis, tweeted, “It’s a warning for the future when one person claims they have the power to close churches permanently. That’s what we’ve seen in China & Cuba.”
Thankfully, the backlash against de Blasio was swift. Kristen Waggoner, of Alliance Defending Freedom, wrote an editorial for the New York Daily News entitled “Sorry, mayor, you can’t close churches permanently: De Blasio’s wild overreaction to houses of worship that buck social distancing.” News outlets all over the country reported on the threat and most of the stories included the remarks in opposition and even explanation as to why de Blasio could do no such thing.
There are other examples of government overreach this past week, too. They do not relate to religious freedom specifically, but they should be as alarming to anyone who loves the Constitution. Governor Andrew Cuomo of New York said in his April 3 briefing,
I’m going to sign an executive order that says the state can take ventilators and PPE from institutions that don’t need them now and redeploy them to other parts of the state and other hospitals that do need them. Those institutions will either get their ventilator back or they will be reimbursed and paid for their ventilator so they can buy a new ventilator.
The Wall Street Journal was incredibly kind to Cuomo in its report on his briefing, headlining its story, “New York State to Shift Ventilators to Hospitals in Need.” Thankfully, the sub-heading was more accurate, reading, “Gov. Cuomo to sign order allowing state to take unused ventilators, masks from institutions.” Bob Lonsberry, of Syracuse’s 570 WSYR radio station ripped Cuomo’s announcement; his post started this way:
You’ve been triaged, upstate New York.
The governor put the black tag around your neck.
Some will live and some will die and, well, you don’t get to live.
That’s what Andy Cuomo’s decree of Friday means. Your ventilators go to his voters and when you get the COVID, well, good luck to you. If all goes well, your family can have a memorial service in a year or two, after the Chinese sell us the vaccine.
Maybe you think that’s an overreaction, but I imagine that if someone was promising to confiscate the ventilators from your local hospital you would be upset too.
And in Los Angeles, Mayor Eric Garcetti encouraged Angelenos to snitch on anyone violating his Safer at Home order. At his March 31 briefing he said,
If any non-essential businesses continue to operate in violation of the stay at home order, we’re going to act to enforce the safer at home order and ensure their compliance. You know the old expression about snitches. Well, in this case, snitches get rewards.
He later said, “We want to thank you for turning folks in and making sure we are all safe.”
I don’t know what the rewards are, and I don’t want to know. What I do know is, encouraging people to spy on and report their neighbors sounds an awful lot like the U.S.S.R. I simply cannot imagine that that is the United States of America that anyone really wants to live in.
Shredded Constitution photo credit: Shutterstock.
Kristi Noem photo credit: U.S. Department of Agriculture/Public Domain .
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.
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.”
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
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.
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.
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.
You have likely heard about, read about, and even watched or read the exchange that took place on June 7 between Senator Bernie Sanders and Russell Vought, President Trump’s nominee for deputy director of the Office of Management and Budget, during Vought’s confirmation hearing. There has been much said and written about the ridiculousness of Sanders’ questioning–not to mention the unconstitutionality of it–from all ends of the political spectrum, and I will link a few examples here if you would like to read them for yourself. Aaron Earls blogged about it on The Wardrobe Door, clearly making the point that “all roads lead to exclusion,” and that the opinions of Senator Sanders (and Senator Chris Van Hollen, who expressed an inclusivist view of Christianity during the hearing) are perhaps even more intolerant than Vought’s view that led to the questioning. Others on the conservative end of the political (and religious) spectrum made equally eloquent and passionate arguments against Sanders’ questioning.
Interestingly, those calling out Sanders’ intolerance were not confined to the usual ranks though. Emma Green, writing for The Atlantic, wrote, “It was a remarkable moment: a Democratic senator lecturing a nominee for public office on the correct interpretation of Christianity in a confirmation hearing putatively about the Office of Management and Budget.” She went on to state, “It’s one thing to take issue with bigotry. It’s another to try to exclude people from office based on their theological convictions. … This is the danger of relying on religion as a threshold test for public service, the kind of test America’s founders were guarding against when they drafted Article VI.” She concluded her piece by articulating exactly what so many on the other end of the spectrum have been saying about “tolerance” for years: “As the demands for tolerance in America become greater, the bounds of acceptance can also become tighter. Ironically, that pits acceptance of religious diversity against the freedom of individual conscience.”
Even Camila Domonoske, writing for NPR, addressed Sanders’ line of questioning. She provided a reasonable and balanced look at the issue from both sides, citing spokespeople for Sanders, legal experts, Muslim leaders and Russell Moore , president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. She correctly reported that views on hell differ, even among Christians: “Different Christian sects, and individuals, have varying interpretations of damnation. The traditionalist view is that eternal suffering awaits all who do not accept Christ; on the other end of the spectrum is the universalist belief that everyone will be saved. And then there are disagreements about what hell actually is.” But the very title of Domonoske’s piece asks the question that ultimately needs to be addressed in light of the Sanders-Vought exchange: “Is it hateful to believe in hell?” (And even if one feels that it is, is such a belief a legitimate subject of questioning in a political confirmation hearing and/or a legitimate reason to oppose or restrict someone from political office?)
I have linked only three examples here and there are many, many more, from all sides, so feel free to find and read those to your heart’s content. It will not surprise anyone who has read the blog with any regularity to know that I found Sanders’ questioning to be out of line and unconstitutional. But I actually want to take a different perspective on the entire exchange, looking instead at Vought’s responses to Sanders. I do not want to throw Vought under the proverbial bus, as he was no doubt surprised by the vehemence of Sanders’ questioning, but he seemed to be uncertain in his responses, unwilling to double down on what he had written and take a firm and unequivocal stance on biblical Christianity. In short, he seemed caught off guard, unprepared to give a defense for his faith.
The apostle Peter addresses the importance of enduring suffering for righteousness sake and being prepared to offer a defense for faith in 1 Peter 3:13-17:
Now who is there to harm you if you are zealous for what is good? But even if you should suffer for righteousness’ sake, you will be blessed. Have no fear of them, nor be troubled, but in your hearts honor Christ the Lord as holy, always being prepared to make a defense to anyone who asks you for a reason for the hope that is in you; yet do it with gentleness and respect,having a good conscience, so that, when you are slandered, those who revile your good behavior in Christ may be put to shame.For it is better to suffer for doing good, if that should be God’s will, than for doing evil.
Vought was certainly put in a position by Sanders to suffer for righteousness’ sake. He was, quite literally, asked for the reason for the hope that is within him, and he was indeed slandered and reviled during the exchange. Matthew Poole, in his commentary, said of verse 15, “either that hath authority to examine you, and take an account of your religion; or, that asks with modesty, and a desire to be satisfied, and learn of you.” Sanders certainly fell into the first category.
Again, it is impossible for me or anyone else to say what we might have done were we in Vought’s seat, so I do not wish for this to be seen as an attack on him. But I do wish it to be seen as an encouragement for all of us who claim the name of Christ and seek to be faithful to biblical Christianity. Should we ever find ourselves in a similar situation, will we be prepared to respond? Will we have a defense for our faith, for the hope that is within us, when we are literally in the spotlight? Russell Vought had an opportunity that very few people ever have had or will have, I suspect. He was seated before United States senators, with the opportunity to speak God’s Truth into the congressional record, not to mention to the ears of elected officials and to millions of people across the country and around the world.
Using the transcription of the exchange between Sanders and Vought provided by David French of National Review, I want to imagine what Vought’s answers could have looked like. I am giving Sanders’ questions/comments in blue, Vought’s real answers italicized in brackets and what I would like to imagine could have been said instead in more faithful adherence to Peter’s exhortation thereafter in orange.
Sanders: Let me get to this issue that has bothered me and bothered many other people. And that is in the piece that I referred to that you wrote for the publication called Resurgent. You wrote, “Muslims do not simply have a deficient theology. They do not know God because they have rejected Jesus Christ, His Son, and they stand condemned.” Do you believe that that statement is Islamophobic?
[Vought: Absolutely not, Senator. I’m a Christian, and I believe in a Christian set of principles based on my faith. That post, as I stated in the questionnaire to this committee, was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation, and . . .]
Absolutely not, Senator. Islamophobia is a fear or hatred of Muslims and I neither fear nor hate Muslims. I am a Christian and I believe the Bible–both Old and New Testaments–which clearly states that the only way to know God is through acceptance of His Son Jesus Christ as Savior.
Sanders: I apologize. Forgive me, we just don’t have a lot of time. Do you believe people in the Muslim religion stand condemned? Is that your view?
[Vought: Again, Senator, I’m a Christian, and I wrote that piece in accordance with the statement of faith at Wheaton College.]
The context of my statement in Resurgent was dealing with the Muslim religion because it dealt with a position taken by a professor at Wheaton College regarding the Muslim religion. But in reality I believe that all people who have not accepted Jesus Christ as Savior, regardless of their religion or their rejection of all religion, stand condemned. I believe that because that is what the Bible says. while there are others, John 3:18 would be perhaps the best example. It says, “Whoever believes in him is not condemned, but whoever does not believe is condemned already, because he has not believed in the name of the only Son of God.” So, in keeping with my Christian faith, I believe that many people stand condemned.
Sanders: I understand that. I don’t know how many Muslims there are in America. Maybe a couple million. Are you suggesting that all those people stand condemned? What about Jews? Do they stand condemned too?
[Vought: Senator, I’m a Christian . . .]
Sanders (shouting): I understand you are a Christian, but this country are made of people who are not just — I understand that Christianity is the majority religion, but there are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?
[Vought: Thank you for probing on that question. As a Christian, I believe that all individuals are made in the image of God and are worthy of dignity and respect regardless of their religious beliefs. I believe that as a Christian that’s how I should treat all individuals . . .]
Yes, Senator, I do believe that people who are not Christians are going to be condemned because that is what the Bible says.
Sanders: You think your statement that you put into that publication, they do not know God because they rejected Jesus Christ, His Son, and they stand condemned, do you think that’s respectful of other religions?
[Vought: Senator, I wrote a post based on being a Christian and attending a Christian school that has a statement of faith that speaks clearly in regard to the centrality of Jesus Christ in salvation.]
I am not sure if that statement is respectful of other religions or not, Senator. To be honest I am not certain it was designed or intended to be respectful of other religions. That statement was made specifically to highlight the very clear, very important differences that exist between biblical Christianity and Islam. The Christian faith is, necessarily, narrow-minded and exclusive. Jesus said, “I am the way, the truth, and the life. No one comes to the Father except through Me.” I was articulating and defending that element of my faith, that portion of what the Bible says.
I think, however, that you are missing an important point, sir. I absolutely respect the right of every person to choose his or religion, or to choose no religion. I believe the Constitution of the United States explicitly grants a freedom of religion to everyone in this country. That means that I accept, respect–and would defend–the right of Muslims or Hindus or Jews or Jehovah’s Witnesses or Mormons or Catholics or anyone else to believe, or not believe, as they so choose whether or not I agree with their religion. So in that regard I have complete and total respect for other religions.
But if by respecting other religions you mean that I have to agree with what they believe or keep quiet about areas in which my faith differs from theirs then I guess I would have to say no, I do not respect–by that definition–other religions. But given the incredible freedom of religion that we hold so dear in this country, Senator Sanders, I cannot imagine that is possibly what you meant.
Sanders: I would simply say, Mr. Chairman, that this nominee is really not someone who this country is supposed to be about.
To which I would say, if I might Mr. Chairman, that the freedom to believe as we see fit and to speak as we wish–even about those differing and contradictory beliefs–is precisely what this country is supposed to be about.
Though it may be hard for some of you to believe I actually do not seek out opportunities to blast President Obama. Regardless of how seldom I may agree with his political agenda I believe that it is my responsibility as a follower of Christ to respect and pray for the president. I also believe, however, that the citizens of the United States have a responsibility to hold our elected officials responsible for their actions and to expect that they follow the law.
Unless you live under a rock you know that the United States recently traded five al-Qaida and Taliban operatives for U.S. Army soldier Bowe Bergdahl, who had been held captive in Afghanistan. This trade is troubling on many levels in my mind and in the minds of many others. Senator Lindsey Graham reportedly commented on the trade by saying, “The five terrorists released were the hardest of the hard-core.”
Other concerns include the fact that Bergdahl allegedly walked away from his unit in Afghanistan and sought out the Taliban, who gladly took him prisoner when their paths crossed. Bergdahl was held captive for five years and I certainly am not going to suggest that that is insignificant or was in any way deserved. However, there are allegations that he taught bomb-making techniques to the Taliban while he was being held. All the way back in 2010 the Daily Mail reported that Bergdahl was ” training Taliban fighters bomb-making and ambush skills” and, according to one of his captors, had converted to Islam and had taken a Muslim name.
Several of Bergdahl’s platoon mates have publicly stated that Bergdahl should absolutely not be called or considered a hero because he voluntarily left his unit and six U.S. soldiers died looking for him. “We all served together and we were all in it together over there and he broke that bond by leaving us,” Army Sgt. Josh Korder said on NBC’s TODAY show. Interestingly, the TODAY web site has a survey allowing readers to vote yes or no as to whether the U.S. trade for Bergdahl was the right thing to do. Fully 85% of the more than 16,000 voters have responded “no.” Not all that long ago the United States Army shot deserters. It still imprisons them. It certainly has not traded high level military prisoners in order to get deserters back.
Ultimately, it is none of the above–troubling though all of that is–that is the biggest problem. The biggest problem, and the one that should alarm every citizen if the United States, is that President Obama broke the law in the Bergdahl swap. U.S. law requires the president to give Congress thirty days notice before releasing any prisoner from Guantanamo Bay, where the five prisoners traded for Bergdahl had been held. President Obama did not do that. Apparently Obama informed Senate Majority Leader Harry Reid but that was all. Neither Speaker of the House John Boehner nor Senate Intelligence Committee chair Dianne Feinstein were informed in advance. On Tuesday Deputy National Security Advisor Tony Blinken called Feinstein to apologize, Feinstein told reporters.
According to a report in TIME the swap occurred over the objections of members of the Pentagon and the intelligence community who had serious concerns about the dangers of releasing the five men. The explanation for the swift action in making the trade that was offered by National Security Council spokeswoman Caitlin Hayden is absurd. Frankly, I think Ms. Hayden should have been embarrassed to make the statement. Here’s what she said:
Delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.
Therein lies no small part of the problem with the Obama Administration: it believes that it has the right to “conclude” whatever it wants about what Congress intends and to play fast and loose with the law when following it would get in the way of the president doing what he wants.
It stretches my imagination to contemplate how waiting thirty days for Congress to be notified of the swap in accordance with the law could possibly jeopardize the lives of Americans abroad or U.S. soldiers, particularly given that Bergdahl had already been held for five years. A further concern is that the U.S. did not make this swap with another sovereign nation but with a terrorist group. The reality is that making this trade put the safety of Americans abroad and U.S. soldiers at risk but communicating clearly to the world that the United States is willing to negotiate with terrorists and even to make a five-for-one trade in order to get back a deserter. If we’ll trade five major terrorist prisoners for one deserter what will the asking price be for an actual military hero? Or a diplomat? What about for the families of U.S. officials serving abroad?
At the end of the day, despite the rationalizations and press conferences and defenses of their actions, the Obama administration both violated the letter of the law and the spirit of the Constitution. The president takes an oath to serve, protect and defend the Constitution. No matter how revisionist you may want to be in your reading or interpretation of it, there is no way to make that fit with breaking the law or endangering American lives.
I suppose I shall weigh in on the Donald Sterling fiasco if for no other reason than that I have been asked by a few people what I think about it.
Honestly, I am not going to say too much because I think this topic is being addressed at length by plenty of other people. I am not a fan of the NBA, by the way, but I do not think that really has any bearing on this issue. What it comes down to ultimately, I believe, is an issue of freedom of speech, freedom of belief and right to property ownership.
I have not read the entirety of what Mr. Sterling said in his recorded conversation with his girlfriend. I have read enough to know that what he said was racist, offensive and indefensible. However, various individuals from Kareem Abdul-Jabbar to Allen West, have pointed out that (1) Sterling’s views did not just suddenly come to light, and (2) the recording that sparked this firestorm was apparently made illegally.
Abdul-Jabbar states in his opinion column posted on TIME’s web site on April 28 that there has plenty of evidence of Stirling’s racism before this recording emerged. In fact, he suggests that the outrage over these recent comments is absurd given that they do not reveal anything new. “What bothers me about this whole Donald Sterling affair isn’t just his racism,” he wrote. “I’m bothered that everyone acts as if it’s a huge surprise. Now there’s all this dramatic and very public rending of clothing about whether they should keep their expensive Clippers season tickets. Really? All this other stuff…has been going on for years and this ridiculous conversation with his girlfriend is what puts you over the edge? That’s the smoking gun?”
Both Abdul-Jabbar and West, in a post on his web site posted today, highlight that the outrage over Sterling’s comments has thus-far vastly outweighed the fact that the recording containing these comments was apparently made illegally. “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?” asks Abdul-Jabbar. “The national outrage against Mr. Sterling has come from an act that could be illegal and inadmissible in a court of law. Nevertheless, the court of public opinion has tried and convicted Mr. Sterling of being a jerk,” writes West. According to West, “the taping of a conversation without consent of the other party is illegal under California statute.” I do not know if Stirling knew he was being recorded or not, but I highly doubt it.
All of above, however, is not my biggest concern in all of this. If Sterling is a racist and the jerk that he appears to be based on the recording then I find that sad and even reprehensible, but I believe we have the right to think and say what we want in this country. Should people who are offended by it make their voice heard by boycotting Sterling or his team? Sure. That’s another great right we have. Should sponsors pull their support for the Clippers because of Sterling’s comments? Again, entirely within their rights. Should Sterling be banned from the NBA for life, as was announced yesterday by NBA Commissioner Adam Silver? I could even support that decision. I have a serious problem, however, with the effort Silver intends to make to force Sterling to sell the team.
According to the AP report issues yesterday, “NBA Commissioner Adam Silver delivered the swiftest, strongest penalty he could, then called on NBA owners to force Los Angeles Clippers owner Donald Sterling to sell the team for making racist comments that hurt the league. … If three-fourths of the other 29 owners agree to Silver’s recommendation, Sterling will be forced to sell the team he has owned since 1981.”
The Declaration of Independence says that there are inalienable rights, including life, liberty and the pursuit of happiness. John Locke, whose writing heavily influenced the Founders, originally wrote of life, liberty and property. There are many legal protections for the right to own property. If Silver and the other NBA owners are successful in their stated aim to force Sterling to sell the team–in essence, taking his property from him by force–I think we have a real problem. There are plenty of ways for Sterling to be influenced and even pressured to sell the team, and if the boycotts and loss of sponsorships and other pressures are used properly he will, if he is a shrewd businessman, recognize the wisdom in selling. But force him to sell? As West asks in his column, “have we come to a point in America where being a jerk is grounds for confiscation of a private property?” If so, I think there are a lot more people in trouble than Donald Sterling…and you or I could be next!
My understanding is that Sterling was at home when he made the comments that have sparked this outrage. My understanding is that he thought he was having a private conversation. If Adam Silver, the other owners of the NBA teams, or any other person or group of persons in the United States can strip any individual of private property because of comments made at home in private–and said comments are not even criminal–then we are in serious trouble. The very rights we hold dear will slip through our fingers like sand. If anyone has a right to free, unfiltered speech anywhere–regardless of how ugly, offensive or stupid it may be–it should be in the privacy of their own home. After all, being stupid still isn’t against the law.
I hate to do this. Really, I do. Quite frankly, I am irritated that the Common Core State Standards (CCSS) have taken up so much of my time and attention recently–especially when I am not (1) required to follow them at the school where I serve, and (2) even all that interested in defending the standards themselves! What bugs me is the misinformation and the manipulation of the facts that is so prevalent surrounding the CCSS. I wrote at length on these standards last week and then decided after four posts that I was done. I intended to walk away from the issue and leave it alone. Then I got today’s mail…
In today’s mail I received a letter from Concerned Women for America (CWA) which was accompanied by a pamphlet entitled “Stop Common Core ‘State’ Standards.” The pamphlet included a picture of an elementary school child wearing a safety patrol vest, holding a stop sign. At the top of the cover was this statement: “An Unconstitutional Experiment on Our Children.” The lower part of the cover says, “An experiment destined for failure, loss of local control, loss of parental rights, loss of privacy, high costs and more.” Now, I respect CWA and much of what they do. However, I cannot ignore the inaccuracies and spin of their propaganda piece. The only way to have healthy and meaningful debate is to stick to the facts, and conservative organizations need to hold themselves to that standard–particularly organizations that are also Christian.
The inside front page of the pamphlet provides this explanation in response to the headline, “What is the Common Core?”
The Common Core State Standards (CCSS) is a set of national K-12 standards in math and English language arts currently being implemented in 45 states and Washington, D.C. The CCSS were developed behind closed doors by a left-leaning Washington, D.C.-based non-profit group. Supporters of the CCSS claim that the development of the standards was a “state-led” effort, but that simply is not true. Neither state boards of education, state legislators nor local education officials, school leaders, nor parents were included in the development, evaluation, and adoption of CCSS.
That paragraph includes reference to an end note after the comment about the “left-leaning” non-profit group, and that end note directs readers to a report by the National Governors Association, the Council of Chief State School Officers, and Achieve, Inc., entitled “Benchmarking for Success: Ensuring U.S. Students Receive a World-Class Education.” Interestingly, that report was published in 2008, and the CCSS were not even copyrighted until 2010. The suggestion, though, is that Achieve, Inc. is a “left-leaning” non-profit group responsible for drafting the CCSS. The report in question was outlining the arguments in favor of developing such standards. However, Achieve, Inc. (1) is a bipartisan organization that includes both Republican and Democratic governors on its board of directors, and (2) is not cited at all in the final CCSS.
Furthermore, that CWA paragraph states that there were no state boards of education, elected officials or local education officials involved in the “behind close doors” development of the CCSS. However, the CCSS were developed by the Council of Chief State School Officers (CCSSO). The CCSSO is “a nonpartisan, nationwide, nonprofit organization of public officials who head departments of elementary and secondary education in the states, the District of Columbia, the Department of Defense Education Activity, and five U.S. extra-state jurisdictions.” The CCSSO board of directors has as its president Mitchell Chester, the Massachusetts Commissioner of Education. The president-elect is Terry Holliday, the Commissioner of Education for Kentucky. The past president is Thomas Luna, the Superintendent of Public Instruction in Idaho. The board includes education heads from six other states. These individuals serve as the executive officers for their state departments of education and, in many states, also serve as secretary or ex-officio members of the state boards of education. It would therefore be difficult to suggest that neither state boards of education nor school leaders were involved in the development of the CCSS. Furthermore, the suggestion that teachers were not involved in the development of the CCSS is not true. There were teachers involved all along the way, and the National Education Association (NEA), American Federation of Teachers (AFT), National Council of Teachers of Mathematics (NCTM), and National Council of Teachers of English (NCTE) are among the groups that were involved. PolitiFact.com rates the assertion that teachers were not involved in the development of the standards as “false” on their truth-o-meter, and even identifies and quotes teachers who were involved in the CCSS development (see the article here).
The CWA pamphlet also states that many states agreed to adopt the CCSS and the accompanying assessments “sight unseen.” That may be true. Even if it is, though, that is a problem with the elected officials in those states, not with the CCSS. No state could adopt the CCSS without the approval of elected officials. It simply is not possible.
The CWA pamphlet also states that the CCSS violate the Constitution, specifically the Tenth Amendment. I addressed in a previous post the fact that the federal government did not impose the CCSS on the states because it cannot do so. It can incentivize the adoption of the standards, and it did do that, but that is not unconstitutional.
The pamphlet goes on to suggest that there are three federal statutes which “prohibit the federal government from guiding the educational curriculum of the states.” The first of those statutes is the General Education Provisions Act. This act reads as follows:
No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system, or to require the assignment or transportation of students or teachers in order to overcome racial imbalance.
The problem with the CWA assertion, though, is that the individual states that are adopting CCSS have made their own decision to do so. When a state voluntarily adopts the CCSS it is the state, not the federal government, that is subjecting itself to the CCSS guidelines.
The second law referenced is the Department of Education Organization Act. This 1979 law creating the Department of Education contains basically the same language as the law quoted above. Section 103(b) reads…
No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.
The reasons why CCSS does not violate this law are already outlined above.
Finally, the CWA pamphlet references the Elementary and Secondary Education Act of 1965. Now, the full act is some 600 pages. If you want to read it all, help yourself–it is public record and not hard to find. However, this act actually does more to support CCSS than to hinder it. After all, Section 1001 (1) states that the law’s purpose is to “ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education” by “ensuring that high-quality academic assessments, accountability systems, teacher preparation and training, curriculum, and instructional materials are aligned with challenging State academic standards so that students, teachers, parents, and administrators can measure progress against common expectations for student academic achievement….” And again, any suggestion that the CCSS violate the law is negated by the fact that the individual states have opted in to CCSS; they have not had it forced upon them.
The CWA pamphlet goes on to state that “local control of education is best, whereby parents, teachers and taxpayers have a voice.” I agree wholeheartedly, and I am on record as advocating the abolition of the Department of Education completely. Again, though, this is a separate issue from the CCSS.
CWA also suggests that the CCSS actually lower education standards. I think this is a real stretch. It would take quite a while to go through and address, standard by standard, why I disagree with this assertion, so I am not going to do it. But I will touch briefly on one specific assertion made by the CWA pamphlet regarding literature. The pamphlet states that the CCSS has a “prominence of nonfiction ‘informational texts’ such as technical manuals, government documents, brochures and menus rather than highly regarded classic literature.” This argument is really a nonstarter for me. First of all, a well-rounded education needs to include “informational texts” as well as classic literature. Informational texts are certainly going to be more practical for most students than classic literature. Second, though, the assertion is inaccurate.
The CCSS text exemplars (and again, these are recommendations– they are not mandated) include a healthy variety of both. Grades 9-10, for example, include recommendations for stories, drama, poetry and informational texts. Homer’s The Odyessey, O. Henry’s “The Gift of the Magi,” Steinbeck’s The Grapes of Wrath, Bradbury’s Fahrenheit 451, Achebe’s Things Fall Apart, Lee’s To Kill a Mockingbird, Shaara’s The Killer Angels, Sophocles’ Oedipus Rex, Shakespeare’s The Tragedy of Macbeth, Williams’ The Glass Menagerie, Poe’s “The Raven,” Shakespeare’s “Sonnet 73,” and Dickinson’s “We Grow Accustomed to the Dark” are but some of the recommended reading for high school freshmen and sophomores. (One of the more bizarre rumors surrounding the CCSS, by the way, is that The Grapes of Wrath is recommended for second grade. Not true.)
What are informational texts recommended for grades 9-10? Speeches by Patrick Henry, George Washington, Abraham Lincoln, Franklin Roosevelt, Martin Luther King, Jr., and Ronald Reagan are listed for Language Arts. The History/Social Studies information texts include works on Custer, art, fish, African Americans in the Civil War and great composers. Science, math and technical subject recommendations include Euclid’s Elements as well as works on stars, the circumference of the earth and a government document on recommended levels of insulation. Not only do the fiction recommendations exceed the nonfiction recommendations, there is nothing wrong or detrimental about the nonfiction recommendations!
So, to repeat my mantra yet again, please do not believe everything you hear or read about the CCSS. This topic has become quite the political hot potato and folks on both sides are using half truths and spin to support their arguments. Do the research and find the facts for yourself…and insist on candor and honesty from those who are arguing about these standards.
Two entries ago I said I was beginning a series of posts about education, and it is still my intention to get back to that ASAP. With all of the shenanigans going on with the shutdown of the federal government, though, I had to speak up on that. And even though I said at the end of that post that I was resting my case, I need to add just a few more thoughts.
Numerous examples have emerged over the weekend of additional ridiculous moves by the Obama administration to make the shutdown as public and as painful as necessary. One example is the Lake Mead National Recreation Area in Nevada and Arizona. The Henderson Press reported on the closing, including the fact that in addition to the closing of the “visitor center, campgrounds, marinas, trails and launch ramps” the folks who own property within the park are also being evicted and are barred from entering their personal property only to retrieve belongings. “Those with personal property within the park, such as boats, trailers or cabins, will be allowed access into the park to either remove their vessels or trailers or to remove belongings from their property,” the Henderson Press reported. Las Vegas station KTNV also reported on the Lake Mead closing, specifically spotlighting Ralph and Joyce Spencer. The Spencers, age 80 and 77 respectively, have owned their home since the 1970’s but the home sits on federal land. Thus, “even though the Spencers own their cabin outright, they’re not allowed in until the government reopens.” Now, according to the report, “The Lake Mead properties are considered vacation homes; one of the lease requirements to own a plot is people must have an alternative residence.” Be that as it may, the shutdown of the federal government cannot be used to justify evicting people from their own property.
The Independent Journal Review, the Washington Post and other news sites also reported that the Department of Justice web site that provides information on the AMBER Alerts was shut down, too. Now the alerts themselves were still operation, but the information DOJ web site was shut down. As of this morning that site is fully operational again, leading me to believe that the outcry over shutting down a web site specifically designed to provide information about kidnapped children was effective. Nice to know the elected officials listen once in a while! However, a service designed to assist protect the lives of abducted children should never have been allowed to be used for political purposes.
Interestingly–as pointed our by several other news sites–First Lady Michelle Obama’s “Let’s Move” web site was never shut down. Now the most recent post on the site’s blog was posted on September 30, so perhaps the site is not being updated, but that fact that it has remained up and operational while so many other government web sites have been shut down speaks volumes on its own. At the site is a government site; its address is http://www.letsmove.gov. As the IJ Review story stated, “Apparently, in the mixed up world of Team Obama’s priorities, continuing to tell America’s kids what to eat and how to exercise is ‘essential’ – while helping to locate missing children who may be in grave danger is not. Go figure.”
You may also have seen the wide-spread story over the weekend that the government is shutting down eleven hundred miles of ocean. Yep, you read that right…the government is shutting down the ocean…specifically, Florida Bay. Charter boat captains who make their living taking folks out into the bay to fish or enjoy the water cannot do so until the government reopens, and there are rangers on duty to enforce the ban. As with so many other examples already mentioned, enforcing the shutdown is going to cost more than allowing normal activities to continue would ever have cost!
Now, in the midst of all of this an anonymous employee of the National Park Service has reportedly stated this: “We’ve been told to make life as difficult for people as we can. It’s disgusting.” Now, I do not know the name of the ranger who purportedly said this, nor can I verify its accuracy. All I know is that it has been widely reported. And if this statement is true–if the NPS has issued such instructions to its personnel, it is violating the law. If President Obama has given that order, or sanctioned it, he should be impeached. And I will not make a long, drawn out explanation as to why. Instead, I will present it very simply, in four easy steps:
One, the Preamble to the United States Constitution reads, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (The unusual capitalization and spelling of “defense” comes directly from the original text, which you are welcome to read for yourself on the National Archives web site which is, oddly enough, still operating).
Two, the presidential oath of office, according to Article II of the Constitution, is, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (The ending “so help me God” is not in the Constitution, but was added by George Washington and has been added ever since).
Three, Section 4 of Article II of the Constitution reads, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Four, there is simply no way to convincingly argue that shutting down open air monuments, evicting people from their privately-owned homes and other examples outlined above and in the previous post are promoting the general welfare or ensuring domestic tranquility. Since they are not, President Obama is not faithfully executing the duties of his office nor is he preserving, protecting or defending the Constitution. Therefore, per the Constitution, he should be impeached, for there can be no higher crime a president of United States could commit than to knowingly and willingly violate the Constitution.