On March 24, Eric Garcetti, the mayor of Los Angeles, began his COVID-19 briefing by sharing that the virus had taken its first teenage life in Los Angeles County. Then, like his colleague Lori Lightfoot in Chicago, he felt the need to point out that the actions of individuals impact lives. “Your behavior can save a life and take a life,” Garcetti said. Is that not true all the time? Before anyone had ever heard of COVID-19, didn’t the actions of individuals potentially take and save lives? Actually, is that not the very argument made regularly by opponents of gun control—that it is the actions of individuals that make the difference, not the gun? But I digress…
During the same briefing, Garcetti said that the “Safer at Home” restrictions would not be extended “one day longer than we need to.” Keep that in mind, as we will come back to it.
Garcetti then deployed some beautiful political doublespeak, announcing a “business ambassadors” program. Sounds great, right? The point of the program was to identify and shame non-essential businesses that had not shut down. Calling the behavior of such business owners “irresponsible and selfish,” Garcetti announced that the Department of Water and Power would shut down services to businesses that did not comply. Furthermore, neighborhood prosecutors would implement safety measures. Businesses would receive a warning first, but misdemeanor penalties, citations and fines were all possibilities that Garcetti left on the table. “You know who you are. You need to stop it,” Garcetti blustered. “This is your chance to step up and to shut it down, because if you don’t, we will shut you down.”
Strangely, Garcetti also announced that restaurants and bars would be permitted, as a means of stimulating business, deliver alcohol. Funny how alcohol was deemed essential, given that there is literally nothing essential about alcohol in any definition of “essential” that has been used in these COVID-19 crackdowns. Funny how Garcetti was interested in stimulating business while saying, out the other side of his mouth, that business owners who were operating were going to have services for which they were paying shut down.
By the way, this was all announced at a time when Los Angeles County had all of 669 confirmed cases of COVID-19 with a mortality rate of 1.6% and California as a whole had a mortality rate of 1.9%. So how has Garcetti responded in the weeks since?
On April 5, Garcetti told the Associated Press that he was considering requiring people to stay mostly in their neighborhoods, rather than travel longer distances for shopping and exercise. In a press conference the next day he admitted how un-American such action would be, and used that as way to try to scare Angelenos into voluntarily restricting their movements. “We can’t yet do that, nor do we have an enforcement mechanism, nor are we a country where, thankfully, we monitor people’s cell phones or where they are all the time and I don’t think we’re gonna do that anytime soon,” Garcetti said. If any mayor, anywhere in the United States, had floated such a possibility in January, February, even the first week of March, they would have been laughed at and ignored. Unless they were impeached!
By mid-April, LA County has over 8,400 cases and a mortality rate of 2.9%. By that point the county’s beaches, piers, bike path and trailheads had been closed and anyone going to an essential business, either as an employee or as a patron, was required to wear a mask. Per Garcetti’s order, businesses would be permitted to deny service to customers not wearing masks or some covering of the mouth and nose.
On May 4, California governor Gavin Newsom, who has been rather tyrannical in his own right, announced that COVID restrictions would begin to be eased in California. Not so fast, responded Garcetti. Newsom “isn’t talking to all of us in exactly the same way” he announced, and he—Garcetti—would lift restrictions in Los Angeles when he was good and ready. “I will reopen our city with careful consideration, guided by the advice of public health professionals. What we should all ready ourselves for, is the new normal, no matter what is open or closed.”
Earlier this week, at a Board of Supervisors meeting, Barbara Ferrer, the Los Angeles Public Health Director, said “with all certainty” that the county’s stay-at-home order would be extended into July. Garcetti said that did not necessarily meant that the restrictions would look the same way they do today for the duration of that time, but that the city could not fully resume normal activities until a vaccine has been developed for COVID-19.
If he is serious about that, I suspect Los Angeles will see either mass protests against the Safer at Home restrictions or a mass exodus of people fleeing LA, because the likelihood of a vaccine in the near future is slim. Just days ago the Mayo Clinic said that while the development of a vaccine is “perhaps the best hope for ending the pandemic” the medical professionals “don’t know yet whether an effective vaccine is possible for this virus.” And if it is possible? “Realistically,” the Mayo Clinic report stated, “a vaccine will take 12 to 18 months or longer to develop and test in human clinical trials” and then, if a successful vaccine is developed, “it will take time to produce, distribute and administer to the global population.”
If Eric Garcetti thinks people in LA are going to sit back and wait for that to happen, he’s got another thing coming. Instead of “Safer at Home” many Angelenos will likely decide they will be “Safer Somewhere Else.”
Chicago mayor Lori Lightfoot has perhaps not has as much national media attention as Bill de Blasio in New York City, but she has stepped gleefully into the role of tyrant none the less.
Illinois governor J.B. Pritzker issued a stay-at-home order that began on March 21. It was originally to run through April 7, but it was extended to April 30 on March 31. When NBC Chicago reported on Pritzker’s original order it also quoted Lightfoot as saying, “I want to say to be clear, this is not a lockdown, it’s not martial law.” She said that grocery stores would remain open and stocked and no one needed to change their shopping habits or hoard anything. At the same time, though, Lightfoot shut down the city’s parks and libraries.
An Associated Press report on April 11 quoted Lightfoot saying of people who had gone to Chicago parks and trails during a day of 70-degree weather, “Your conduct — yours — is posing a direct threat to our public health.” Lightfoot reported that she has personally ordered groups of people outside in one Chicago neighborhood to “break it up” and said, “I mean what I say. We have to protect ourselves. We have to be smart about what we’re doing in the course of this pandemic. And if it means that I drive around and check whether or not people are in compliance, I am happy to do it.”
Around that same time Lightfoot was announcing to national media that COVID-19 was killing a disproportionate number of African Americans because, in her words, “In many of our African-American households, they don’t have three, four floors where they can separate themselves.” She told PBS News reporter Yamiche Alcindor that she was 100% right in suggesting that social distancing is a privilege for some and that, nationwide, African Americans are more likely to have to take public transportation and less likely to be able to work from home. She told Alcindor that data on the racial breakdown of COVID-19 deaths was “absolutely essential.” I am not sure what racial data has to do with combating COVID-19, but since Mayor Lightfoot thinks it matters I would like to remind her that the rate of abortions among African Americans is nearly three times higher than it is among Caucasian women according to the Guttmacher Institute. It is true, according to the website blackdemographics.com, that the percentage of African American COVID-19 deaths is higher than the African American percentage of the state population in a number of states. But it is also true that it is lower than the population percentage in Massachusetts, Minnesota, Ohio and Washington and is exactly the same in New Jersey. According to APM Research lab, African Americans do have a disproportionate percentage of COVID-19 deaths overall, but in Texas, Rhode Island, Connecticut, Oklahoma, Minnesota, Washington, Idaho and Colorado Caucasians are dying at disproportionate rates, in Alaska, Oregon, California and Vermont Asians are and in New York, New Hampshire and Missouri Latinos are.
Interestingly, just yesterday the Chicago Sun-Times reported, “Four weeks ago, Latinos comprised 14 percent of Chicago’s coronavirus cases and 9 percent of the deaths. Now, it’s 37 percent of the cases and 25 percent of the deaths — in a city where 29 percent of the population is Hispanic.” How did Lightfoot respond? She “expanded the scope of the ‘racial equity rapid response teams’ first created to address the spike in cases among Chicago’s African American residents.” I think the fact that there even is such a thing as “racial equity rapid response teams” speaks for itself. COVID-19 is a big enough mess already without trying to make it a racial issue, but Lightfoot couldn’t pass up the opportunity. “There are consequences of the president’s hateful, xenophobic demonization of this community,” she said, insisting that President Trump’s position in immigrants was responsible for the surge in Latino cases.
On May 3, the AP reported Lightfoot as “warning decisive actions will be taken against city residents who flout Illinois’ stay at home order by holding house parties.” The day before, Amanda Vinicky, of WTTW News, had provided more detail, reporting that Lightfoot had complained of the lack of compliance with Chicago’s restrictions, saying of them, “Your actions are going to make a difference whether we get out sooner than later. Whether we have a summer or not. I’m not going to allow any individuals to upend the progress that we’ve made.”
Indeed, Lightfoot had said on May 2, regarding people having parties,
We will shut you down. We will cite you and if we need to, we will arrest you and we will take you to jail. Period. Don’t make us treat you like a criminal, but if you act like a criminal and you violate the law and you refuse to do what is necessary to save lives in this city during a pandemic we will take you to jail, period.
She added, “We are watching.” Then Chicago Police Superintendent David Brown said that the CPD would “be on the lookout for gatherings large and small.” He continued, “Don’t leave your house unless absolutely necessary. Don’t invite people over either. Chicagoans have done too much good thus far to risk a spike in cases of this deadly virus.”
Of course, what good the restrictions have done and what progress has been made is unclear. Last weekend Chicago passed 1,000 COVID-related deaths. The Chicago Tribune reported that Lightfoot said at that time that the city had made only “slight progress” in dealing with the virus. If you look at the reports of numbers in Illinois as a whole and Chicago specifically, there is virtually no evidence that the city’s strict shut down orders have made any difference.
Some folks are starting to notice the use of power and accompanying lack of success. Many people are willing to abide a temporary excessive use of authority when it proves to be beneficial, but Lightfoot is not showing any results. So unhappy with Lightfoot’s use of power during her COVID response that, according to Crain’s Chicago Business, “City Council’s budget chair has convened a working group of rivals to meet weekly and keep an eye on COVID-related spending.”
Oh, and by the way… Lightfoot might not mind patrolling the streets to yell at everyone else to get inside, but she doesn’t seem to think the restrictions she has placed on others apply to her. In April she got a haircut from a stylist despite the fact that Governor Pritzker’s state-wide order shut down salons and barbershops. When Lightfoot faced criticism for her choice she did not back down or acknowledge a lapse in judgment. Instead, she whipped out the “I’m more important than you” card, explaining, “I’m the public face of this city. I’m on national media and I’m out in the public eye.”
Maybe so, Mayor Lightfoot. But don’t be surprised if the voters of Chicago decide they want a different “public face” next time they go to the mayoral polls.
Ralph Northam, the governor of Virginia, put a Stay at Home order in place on March 24. It is currently set to remain in place until June 10. That’s not a typo. June 10 at 11:59 p.m.
Virginia’s state web site has a FAQ regarding the order and one of the questions is, “Can I leave my house?” First of all, can we just pause a moment to reflect on how ridiculous it is that this would even be a frequently asked question anywhere in the United States? But here’s the answer:
Yes. However, Governor Northam is urging Virginians to limit all non-essential travel outside the home, if and when possible. If you choose to go to the park, for a walk, or exercise outside, please practice strict social distancing and keep six feet apart from others. All public and private gatherings of more than 10 people are banned.
There are obvious problems with this answer. “If and when possible” it says. Who gets to decide that? The answer assumes that people—at least some people—will choose to go to the park or take a walk. Is that considered essential travel? If so, why is that and not many other things that someone might choose to do? Northam’s order required state parks to close visitor centers and required privately-owned campgrounds to stop accepting reservations of less than 14 nights. So outdoor exercise, and even hiking, is okay, but going to a visitor’s center or going camping is not.
And notice that Northam’s order bans all private and public gatherings of more than 10 people. That includes religious services. The FAQ states that people may drive to their places of worship and participate in services from within their vehicles, but absolutely must remain in their vehicles other than to use the restroom. “There must be no more than 10 individuals leading the religious ceremony or functioning outside of the church in support of the religious ceremony,” the FAQ states.
I have already addressed elsewhere the myriad reasons why such restrictions on religious worship is unconstitutional, and the courts are beginning to rule accordingly. One pastor in Virginia was given a criminal citation for holding a Palm Sunday service with sixteen people present. And while a judge denied the church’s petition for a restraining order, the Justice Department filed a statement of interest supporting the church. The church observed social distancing, the Justice Department said, and the state “cannot treat religious gatherings less favorably than other similar, secular gatherings.”
Like others, Northam has encouraged citizens to report violations of his order. The FAQ states, “You may wish to report this information to your local law enforcement agency,” in response to the question of what should be done if people are observed violating the order. This is despite the fact that back in March, Northam urged Virginia’s law enforcement officials to make every effort to avoid making arrests and to find alternatives to putting people in jail. Is it just me, or should it be normal protocol to pursue options other than jailing people when such options are viable alternatives?
Northam’s March 25 order states, “This Order does not apply to the full suite of family planning services and procedures nor to treatment for patients with emergency or urgent needs.” That, of course, means abortion is not restricted. This is despite the fact that the state’s FAQ says, “Non-essential medical care like eye exams, teeth cleaning, and elective procedures should be cancelled or rescheduled. Non-urgent medical appointments should be cancelled or held via telehealth.” You caught that, right? Abortion is not considered an elective procedure.
In fact, not only did Northam’s COVID-19 restrictions not limit abortion, he signed a bill on April 10—in the middle of the COVID-19 shut down, eliminating the state’s mandate that a woman receive an ultrasound within 24-hours before getting an abortion and allowing nurse practitioners who are jointly licensed by the Board of Medicine and Board of Nursing to perform first-trimester abortions. In a statement issued upon signing the bill, Northam said, “No more will legislators in Richmond—most of whom are men—be telling women what they should and should not be doing with their bodies.”
First of all, since when do the characteristics of a legislator have anything to do with their ability to pass laws? Does this mean that African-American legislators should not be allowed to support or pass bills that impact Caucasians? Does it mean that legislators under 40 cannot pass laws that apply to senior citizens? Does it mean that heterosexual legislators cannot initiate legislation that will have an effect on homosexuals? The very notion is, of course, absurd.
Secondly, would someone mind telling Ralph Northam that it is just plain silly to tout the idea that elected men in Richmond will no longer be telling women what they can and cannot do with their bodies while Mr. Northam is simultaneously telling people what they can and cannot do with their bodies, businesses what they can and cannot do with their stores and their employees, health care providers what they can and cannot do with their patients, schools what they can and cannot do with the patients, churches what they can and cannot do with their parishioners… You get the idea.
See, it’s not that Northam doesn’t want anyone to be able to tell other people what they can and cannot do, it’s just that he wants to be the one doing the telling.
Bill de Blasio, the mayor of New York City and former Democratic presidential candidate, has done such a poor job handling the COVID-19 pandemic that liberal news magazine The Atlantic ran an article about him on April 6 entitled “The Mayor Who Can’t Rise to the Occasion.” In that article, Alexander Nazaryan says that de Blasio seems irritated about having to deal with the coronavirus and “has indicated that irritation with the subtlety of a Times Square advertisement” and that “he has evinced no passion for New Yorkers, or New York.”
Of course, much of that article, and a March 26 column in the Intelligencer headlined “When New York Needed Him Most, Bill de Blasio Had His Worst Week As Mayor,” both focus on de Blasio not doing enough, soon enough, to combat COVID-19. If you were frustrated or upset by de Blasio’s early reluctance to take tyrannical measures in New York City, then you must be delighted by the way he has made up for it since then.
On March 27 de Blasio held a press conference in which he outlined all of the steps that would be taken to combat the spread of the virus. You can read a complete transcript of the press conference if you’d like, but about twenty-three minutes into it he begins to address religious gatherings. De Blasio commended religious leaders for taking steps to minimize risk and for going to online services when they were able to do so, but then transitioned to threat mode: “I want to say to all those who are preparing the potential of religious services this weekend, if you go to your synagogue, if you go to your church and attempt to hold services after having been told so often not to, our enforcement agents will have no choice but to shut down those services.” He wasn’t finished, though. Saying that in-person religious services were to cease wasn’t yet unconstitutional enough for him, apparently, as he decided to go all the way, adding,
So, the NYPD, Fire Department, Buildings Department, everyone has been instructed that if they see worship services going on, they will go to the officials of that congregation, they’ll 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.
The reaction to that was swift and widespread. Kristin Waggoner, writing in the Daily News, said that de Blasio needed to apologize and clarify if his “threat was a careless exaggeration,” and that if it was not an exaggeration “his threat was both cruel and unconstitutional.” One might expect that response from Waggoner, though, since she is the senior vice president for Alliance Defending Freedom and was the lead counsel for Jack Phillips and the Masterpiece Cakeshop. Another conservative organization, the First Liberty Institute, “said de Blasio’s statement crossed the line from protecting people in a pandemic to totalitarian action against churches and religious institutions,” according to an article on RealClear Politics. Terry Firma, on The Friendly Atheist, said “good on him” to de Blasio’s bluster because, according to Firma, “Too many religious people apparently believe that their faith should excuse them from any responsibility for the health and well-being of their fellow citizens.” One might excuse an atheist for not knowing that that is actually the very opposite of what many “religious people” are taught within their faith. I would love to tell you that even some Democrats spoke out against de Blasio’s dictatorial statement, but I have been unable to find any examples.
Fast forward a few weeks and de Blasio stepped it up another notch. Following the example of Eric Garcetti, de Blasio announced via Twitter on April 18 that New Yorkers could help ensure compliance with social distancing orders. Reporting is simple: “just snap a photo and text it to 311-692,” the tweet read. Not surprisingly, the number was inundated with texts and pictures—many of them inappropriate and/or expressing opposition to the encouragement to spy on one another.
In between the threat to permanently close churches and synagogues and his exhortation for New Yorkers to become government snoops, de Blasio urged President Trump to deploy the military to address the pandemic and he signed an executive order the NYPD and the Sheriff’s Department the authority to seize unused medical equipment. According to NYC, the “official website of the City of New York” de Blasio called, on April 2, for “the federal government to institute an essential draft of all private medical personnel to help in the fight against COVID-19.” Writing of de Blasio’s draft proposal, J.D. Tuccille wrote, “Bill de Blasio isn’t alone as a government official who sees in the crisis an opportunity to go full commissar.”
For his asserted conviction that he has the right to permanently close churches and synagogues, that he has the right to order the seizure of medical equipment, that medical personnel should be assigned to his fiefdom and his encouragement for New Yorkers to snitch on one another, Bill de Blasio is the second selection for my Profiles of Tyranny series.
It was difficult to decide who should have the ignominious privilege of leading off the Profiles of Tyranny series, but I decided to start off with Gretchen Whitmer, governor of Michigan, for two reasons. First, I had actually praised her in an earlier post for her acknowledgement that she could not close churches, but her common sense apparently left her shortly thereafter. Second, she has been among the most—if not the most—determined and unyielding in her heavy handedness in recent days. So persistent and obnoxious has she been that Steve Straub of The Federalist Papers has even referred to Whitmer as “China’s favorite governor.”
On April 17, Sheriff Dar Leaf became one of a number of Michigan sheriffs who expressed that they would not necessarily enforce Governor Whitmer’s stay-at-home orders. “When people are being respectful and using that six-foot range [then] we’re not going to go out and tell people to start going home,” Leaf told FOX News. Several sheriffs joined together to issue a press release stating, “While we understand her desire to protect the public, we question some restrictions that she has imposed as overstepping her executive authority.”
The order that everyone was so upset about was Executive Order No. 2020-42, which replaced No. 2020-21. The order was headed “Temporary requirement to suspend activities that are not necessary to sustain or protect life.” That heading prompted strong reaction to Whitmer when she said that Michigan would still be allowing abortions. The irony of allowing abortions while prohibiting activity not necessary to sustain or protect life was apparently lost on Whitmer, though. Abortion “is life-sustaining, and it’s something that government should not be getting in the middle of,” she said on David Axelrod’s podcast.
Whitmer’s order was called “the strictest stay at home order in the nation” by Straub. Indeed, it went so far as to ban travel between two residences in Michigan after April 10. Stores of more than 50,000 square feet were ordered to remove from their shelves and/or close off sections of their store that sell carpet, flooring, furniture, paint, garden items and plants. The advertisement and rental of short-term vacation property was forbidden. In response to Whitmer’s order, some 3,000 protesters flooded Lansing as part of “Operation Gridlock.”
Interestingly, according to VOX.com, Whitmer’s handling of COVID-19 is approved by 71% of Michiganders. But as she considers extending her draconian restrictions beyond April 30, she may well find any such approval slipping. Whitmer went on the offensive against protesters, saying, “President Trump called this a war. And it is exactly that. So let’s act like it. In World War II, there weren’t people lining up at the Capitol to protest the fact that they had to drop everything they were doing and build planes or tanks or to ration food,” she said in a press conference. And that’s true. But that’s also because during WWII people were allowed to do something to contribute to winning a war; they were not arbitrarily forced to stay at home and prevented from working because of something that might happen. The comparison is not really appropriate.
The web site Bridge (bridgemi.com), which calls itself “Michigan’s nonpartisan, nonprofit news source,” reported that Whitmer had warned Vice President Mike Pence about the budget shortfalls facing states due to COVID-19 shutdowns. Apparently the irony of that did not register with Whitmer, either. She did announce that she is taking a ten percent cut to her annual salary of $159,300. That is a nice gesture, but Whitmer’s salary is almost three times the median salary in Michigan, so her sacrifice is not going to amount to much in comparison to what so many others are losing as a result of her executive orders.
According to an article posted by the Detroit Free Press today, “the Michigan Legislature has scheduled a special session for Friday to create an oversight committee to examine how Gov. Gretchen Whitmer has responded to the crisis as well as consider bills that would strip the governor of some of her powers.” That last part refers to a planned review and possible repeal of the 1945 Emergency Powers of the Governor Act, which is the source of much of the power Whitmer is claiming to have during the crisis.
Whitmer’s response to the called session? “Of course, I will veto bills that they send over to limit the executive power. I’ve been very clear about that from day one. Those blatant power grabs are bad in good times and dangerous in times of crisis.”
Her concern for the danger of blatant power grabs is apparently yet another irony lost on Gov. Gretchen Whitmer.
Photo credit: Gerald R. Ford School of Public Policy, University of Michigan.
The kind of tyranny that most Americans could never have imagined taking place in our country is indeed happening. And it is happening in response to a virus—a virus about which little is known and recommended courses of action are constantly changing (or are not even in agreement depending on what person or agency you are listening to at any given time). In no small part because of the unknown and the uncertainty, government officials—especially at the state and local levels—are taking drastic action. No one wants to be the one who failed to act and lives were lost as a result. That is understandable. All of us have been in situations before when we had to wrestle with a decision and we were not sure what the right thing to do would be, and for most of us those decisions did not conceivably involve life and death or wide reaching economic repercussions. So I understand that the positions in which our elected officials find themselves is not an enviable one. But uncertainty and fear of the unknown are not legitimate excuses for violating the liberties which Americans hold dear.
In the April 25 print issue of WORLD, Sarah Erdős writes that forty-one U.S. states are under stay-at-home orders. At least six governors are planning to start reopening activities in their states by April 30, according to an article April 20 on The Federalist. These are good signs. Even better is the fact that there were nine states not under stay-at-home orders, according to the Erdős article. But according to an article on Forbes.com, Andrew Cuomo extended the New York stay-at-home order to May 15, which is the same as the duration of Vermont’s order, and eighteen states plus Washington, D.C. have orders that currently extend into May or even June. “Last week, governors from Idaho, Kansas, Indiana, Mississippi, Wisconsin and Missouri all extended their stay-at-home orders to future dates,” the article stated. That means that at the same time six states—Georgia, South Carolina, Alabama, Tennessee, Florida, and Texas—are planning to reopen, six others are extending their shut down. This is contributing to the frustration and confusion. I am fortunate to live in one of the states that has not had a shut-down order, but that puts me in a very distinct minority. And that fact has not prevented me from becoming increasingly concerned about the violation of freedoms that are spreading across our nation.
We are seeing towns implementing checkpoints to see if citizens are really out of their homes for legitimate reasons. Police patrols are on the lookout for people doing anything they should not be doing—and I am not talking about actual crimes. Erdős described a man in Edcouch, Texas being escorted home from the pharmacy by police in order to ensure that he actually went straight home. If someone would have suggested just two months ago that this would be happening in the United States of America they would have been deemed a lunatic, not a prophet…but look where we are now.
On April 15, Andrew Napolitano wrote an editorial for The Washington Times headlined, “Do governors have the right to decide which activities are essential?” He begins his commentary by stating that we are witnessing “manifested inability of elected officials to resist the temptation of totalitarianism.” Sadly, he is right. Incredibly some of the state constitutions have given the governors of those states the powers that they are now abusing. In Washington state, according to Erdős, state statute allows the governor, during an emergency, to “impose a curfew, suspend state laws, and ban gatherings in open spaces provided the restrictions do not ‘conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble.’” Of course, therein lies perhaps the biggest problem of all: many elected officials are not only implementing restrictions that conflict with those rights, that absolutely trample them.
Not only have many state and local governments attempted to restrict religious gatherings, Mendocino County, CA, has gone so far as to issue a thirteen-page order, in effect through May 4, that even restricts the ability of churches to livestream their services (which they are providing due to not being allowed to meet in person). The order states, “Only four individuals may be present for the live event. All others must participate remotely.” And it gets worse… “No singing or use of wind instruments, harmonicas, or other instruments that could spread COVID-19 through projected droplets shall be permitted unless the recording of the event is done at one’s residence, and involving only the members of one’s household or living unit,” the order says. If I was making that up it would be funny, but I am not and it is anything but. It is vexatious. It should offend anyone who loves liberty.
Stay tuned, because over the next few days I will be posting a hall of shame I am calling Profiles of Tyranny.
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.