Unconstitutional Limitations

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

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

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

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

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Gov. Ralph Northam (VA)

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

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

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 The order is remain in effect until it is “amended or rescinded by further executive order.”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

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

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

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

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

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

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

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

The First Amendment reads,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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United States Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision later asserts,

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

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

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

So, here’s the conclusion of the matter:

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

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

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

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

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

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

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

Now, what about Ralph Northam’s executive order?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The code goes further. Specifically,

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

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

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

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

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

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

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

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

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

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

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

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

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John Marshall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I couldn’t agree more.

 

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

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

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

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

 

 

 

 

 

 

Respecting Religion

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.

 

Evaluating Donald Trump–and Why Hillary Clinton Cannot be an Option

This is, by far, my longest post ever. It also includes far more links that I usually include so that you can read the thoughts of others for yourself if you wish. This post’s length reflects two important things, I think. One, this is an incredibly important issue. Two, it does not have an easy answer and trying to make sense of it is difficult at best. This is my best effort at doing that and, if you stick with me to the end, I thank you for your endurance.

Whether or not Christians should vote for Donald Trump is a question that is getting a lot of attention these days—and rightly so. Voting is a privilege and a responsibility, and Christians have a specific responsibility, I believe, to stand for biblical values and truth in a secular society—which includes through the ballot box. Accordingly, the question of whether or not to vote for Trump—or Hillary Clinton—is a valid one and one that is worthy of serious contemplation. No one should vote blindly or ignorantly, nor should anyone cast his vote based solely on the letter that appears after the candidate’s name (party affiliation). Individuals far more well known that me, far more educated than me and with far larger followings than me have already weighed in on this question and will no doubt continue to do so…but I see no reason for that to deter me from sharing my opinion!

On July 28 Wayne Grudem posted his thoughts on Townhall in an editorial entitled “Why Voting for Donald Trump is a Morally Good Choice.” He starts his thoughts by saying that many Christians have told him that when faced with choosing between two evils the right thing to do is to choose neither, meaning that a vote for Trump is not an option. These folks, says Grudem, advocate a vote for a write-in or third party candidate. To that, Grudem responds that, with his 39 years of experience teaching Christian ethics, he believes that “voting for a Trump is a morally good choice” now that Trump is indeed the Republican nominee. Before giving his specific reasons why he thinks this, Grudem states the following:

American citizens need patience with each other in this difficult political season. Close friends are inevitably going to make different decisions about the election. We still need to respect each other and thank God that we live in a democracy with freedom to differ about politics. And we need to keep talking with each other – because democracies function best when thoughtful citizens can calmly and patiently dialog about the reasons for their differences.

I agree with Grudem about that, and, just as his post was his effort at contributing to the discussion, this is mine. If you discuss politics with family and friends at all, or look at a Facebook feed every now and then, you are no doubt baffled, frustrated or just downright upset with the political inclinations of some people you know right now. Me too. The challenge on that front is to respectfully express our differences, kindly try to persuade, but, in the end, still have love and respect for those people even when they disagree with us. So it is not my desire here to denigrate anyone, but I do think this is a discussion worth having.

Grudem says that voting for a flawed candidate is not morally wrong if you think that candidate will do more good for the nation than will his opponent. I would agree with that and would suggest that we all do. After all, if you are a Christian and you believe in the sin nature of man, then you must recognize that there is no such thing as a candidate who is not flawed. If we could only vote for candidates who were not flawed then we would never be able to vote.

In a paragraph enumerating Trump’s flaws Grudem begins with this sentence: “He is egotistical, bombastic, and brash.” Certainly true. At the conclusion of that paragraph, which includes reference to Trump’s marital infidelity, he writes, “These are certainly flaws, but I don’t think they are disqualifying flaws in this election.” Now I do not know, and to my knowledge Grudem has not said, but it would seem to me that the words this election are crucial in that sentence. In other words, it would seem to me that Grudem is stating that while the flaws of Trump—which are, admittedly, greater than the flaws of many other candidates who ran in this election and who have been nominated in the past—would disqualify him from consideration in any other election, the fact that Trump and Clinton are the only major candidates left now makes this situation different. Grudem explained that he spoke against a Trump candidacy just six months ago, but his position has now changed. That causes me to think that when there were a dozen other candidates to consider, Grudem did not think Trump was a good moral choice.

That does beg the question of whether or not someone who is not an acceptable candidate at one time can become an acceptable candidate later when said candidate has not changed at all but the environment in which he is running has changed and the options have diminished. Is the acceptability of a candidate subjective or not?

Back in April Andy Naselli wrote a post on his web site entitled “Can You Vote for Donald Trump with a Clear Conscience?” Naselli had just coauthored a book on the conscience, so this was a relevant subject for him to address. Like Grudem, he began by enumerating Trump’s flaws and failures. He made it clear that Trump is not a man of good character. “A presidential candidate does not need to sign off on my church’s doctrinal statement to earn my vote,” he wrote. “But character matters immensely for leaders. If a presidential candidate is not trustworthy in other areas, how can we entrust him with the most influential governmental position in the world?” There is really no debate over many of the points Naselli makes, including that Trump brags about his adultery, mocks and disrespects women and those with disabilities, is shamelessly proud and so on. His conclusion? “Trump is not morally qualified to lead a Boy Scout troop.”

In his article, Grudem explains that be believes Christians have a responsibility to seek the good of the nation in which they live, and I agree. He cites Jeremiah 29:7 as support for that position: “But seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare” (ESV). I think there are ample other passages that can also be used to support the importance of Christians seeking to influence for good the community, state, nation and even world in which they live. John MacArthur wrote a book a number of years ago entitled Why Government Can’t Save You. I do not agree with everything he wrote there, but I certainly agree that government cannot save anyone, nor should seeking to influence the public good through government ever replace the importance of seeking to lead lost souls to salvation. But I think Grudem would agree with that.

Naselli writes, “If you vote for a presidential candidate in America’s democratic republic, it does not mean that you fully endorse all of that person’s policies or that you think that person’s character is stellar.” He says there are two basic voting strategies—voting for “the least bad candidate who has the best chance of winning” and voting “for the best (or least bad) candidate, even if that person has a low chance of winning” (italics his). Naselli says he has employed the first option to this point in his life but questions now whether or not there is a limit on the application of that principle. “Can the most viable candidates be so bad that you cannot dignify either of them with your vote?” he asks.

He goes on to use an example of an election between Adolf Hitler and Josef Stalin. If they were the two most viable candidates, Naselli asks, would someone really feel obligated to vote for the lesser of the two evils? “The strategy to vote for the lesser of two evils breaks down at some point. You must draw the line somewhere. The question is where to draw that line.” I agree that there does come a tipping point, but I think it is also necessary to bear in mind the notion of taking the course that will do the most good for the nation within the available options—and I will address that later using Naselli’s hypothetical as an excellent example.

It is precisely because of the responsibility to vote for the person who will do the most good for the nation that Grudem says voting for Trump is the moral thing to do. In his estimation, a vote for someone other than Trump, such as a write-in or third party candidate, is a de facto vote for Clinton, since it reduces the number of votes Clinton needs to win. Historically, there is significant evidence of a third party candidate making a difference in some elections, so that is a legitimate concern. Grudem’s point is that by not voting for Trump someone would be in essence supporting Clinton; in other words, voting for someone other than Trump and Clinton is as effective as voting for Mickey Mouse…or not voting at all.

Accordingly, the real question Grudem asks is, “Can I in good conscience act in a way that helps a liberal like Hillary Clinton win the presidency?” That is a very fair question. I think Grudem goes too far, however, in claiming James 4:17 as reason to support Trump; I do not think it is reasonable or accurate to say that voting for someone other than Trump is sin because of the fact that it could result in helping Clinton.

Grudem goes through a long list of topics that should matter to Christians and that will be adversely affected of Clinton wins in November. These topics include sanctity of life, religious liberty, freedom of speech and, most importantly, the makeup of the Supreme Court. He also addresses issues like taxes, minorities, the military, terrorism, Israel, energy and health care.

In response to the rhetorical question “Does character matter?” Grudem answers,I believe that character does matter, but I think Trump’s character is far better than what is portrayed by much current political mud-slinging, and far better than his opponent’s character.” I am really not so sure that his character is better than it is portrayed. Does the media seem to relish in portraying his worst moments and most ridiculous statements? Of course. But that does not change the fact that they are there. In other words, the way his character is portrayed, even in the left-wing media, is usually not completely fabricated. Is his character better than Clinton’s? I suspect it may be, but that still goes back to the “choosing between two evils” conundrum.

Alex Chediak, also on Townhall.com, responded to Grudem’s essay on August 1. He wrote, of Trump’s claim that he entered the political arena to defend those who cannot defend themselves against the powerful who continue to beat up on them, that in actuality “we see [from Trump’s track record] the picture of a fundamentally arrogant, selfish, and greedy man, who will do or say anything to beat his rivals. This is a man who glories in a kind of self-exaltation that most of us would find shameful.”

Grudem says those who reduce their decision on whom to vote for solely to character are guilty of reductionism, but I would disagree. A person’s character will determine how he or she will handle all of the other issues that matter. During one of the presidential debates John Kasich responded to an answer Ted Cruz gave regarding his philosophies by saying, “You don’t run anything with philosophy.” Kasich’s point was that actually having done something is more meaningful. The truth, though, is that one’s philosophy will dictate how he or she will run something. Trump’s character and philosophy indicates that he has usually been out to do what is best for him and his personal bottom line. He made it clear during the debates that he is proud of all the money he made in Atlantic City and the fact that he got out before most other casino owners, but the record of his operations in Atlantic City is not flattering.

Chediak says he agrees with Grudem that character cannot be the only factor to consider, but he also says that there comes a point where poor character makes it a necessary consideration. Writes Chediak,

But there is a character threshold that we should expect any candidate to meet. A man who owns his vices as if they were virtues, who talks proudly about “going after the families” of suspected terrorists, who has profited from strip clubs, who is by all accounts a pathological liar, who disparaged a disabled journalist, who insulted POWs, who criticized the looks of a rival’s wife, is unworthy of the office of president.

I agree with most of what Chediak said there. I have to ask though, who is worthy of the office of president? How do we determine that? Who gets to decide is us—we the people. That means, by default, that anyone who gets elected is “worthy.” When we are the losing side of the equation we probably do not like that, but we would not really want any alternative. If we were to suggest that some group of people should get to determine who is worthy or eligible to be the president we would only like it as long as we were in that group. That’s the great—and terrible—thing about democratic government; the majority will sometimes choose a candidate that we feel is completely wrong for the job, either by his positions and/or by his character. James Madison famously wrote, in The Federalist #51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Men are not angels, and angels do not govern men, which is why we have to take seriously our responsibility as voters. In Christianity Today Russell Moore wrote, “In our system, citizen is an office; we too bear responsibility for the actions of the government.” That is also why, by the way, not voting is really not an option in my opinion. Even if a candidate lacking character—a candidate we feel is “unworthy of the office of president”—wins the office, we must be diligent to do all that we can within the system to keep him or her accountable through the checks and balances within our system. We have not done a good job of that in recent years, with a Congress that has allowed the president to usurp his constitutional powers on multiple occasions without calling him on it in any meaningful way and with a judicial branch that has created rights that do not exist and laws that were not voted on without holding those judges accountable either.

Grudem said that people’s concern that Trump will not be the president he has promised to be is a moot point because “all of American presidential history shows that that result is unlikely, and it is ethically fallacious reasoning to base a decision on assuming a result that is unlikely to happen.” I don’t agree with that either. That’s akin to saying that because everyone lies we should not care if one individual person lies. To use the faults of the whole to justify or excuse the faults of the one is ethically fallacious, too. I hesitate to start a debate with an ethics professor on ethical fallacies but this particular assertion by Grudem is an example of appeal to probability. Grudem says it is ethically fallacious to base a decision on the assumption that a result is unlikely to happen but it is just as fallacious to base it on a result that is likely to happen. Trump probably won’t do what he has said he will is a fallacious argument Grudem says, but opposing that by arguing that no one does what they say they will is also fallacious. Grudem is committing a fallacy of his own, saying that history tells us that candidates rarely do govern as they promise, so of course Trump is unlikely to as well.

Of course Grudem is not the only person whose writing is getting attention on this question. Though not nearly as prominent a voice as Grudem, a blogger named Shannon Dingle posted, on July 31, her opinion on the matter. It was entitled “I’m pro-life. And I’m voting for Hillary. Here’s why.” She says her opposition to abortion has not changed, but the Republican track record has caused her to come to the conclusion that she is “not sure we can hold that voting Republican is the best thing for abortion rates in this country.”

According to Dingle, “abortion rates rose under Reagan, rose under the first Bush, dropped under Clinton, held steady under the second Bush, and have been dropping under Obama.” However, I am not sure where received her information or on what she is basing that assertion. The National Right to Life Education Foundation reports, on nrlc.org, that the U.S. abortion rate (measured as the number of abortions per 1,000 women ages 15-44) was lower when Regan left office than when he entered, lower when the first Bush left office than when he entered, was lower when Clinton left office than when he entered, was lower when Bush 43 left office than when he entered, and has also declined under Obama.

Perhaps Dingle misspoke and she meant the abortion ratio. That is the number of abortions per 100 births ending in live births or abortion. However, that number reached its peak in 1983 but had dropped markedly by the time Reagan left office. When Bush 41 left office it was slightly higher than when he entered, but then the ratio fell during the Clinton and Bush 43, and has also fallen under Obama. These are not NRLC numbers, either; they come from the Centers for Disease Control and the Guttmacher Institute. The NRLC did comment, however, that while the abortion rate is declining, the number of abortions from RU-486 and other similar means were up.

Dingle goes on to say that Trump has no political track record and therefore all we can go by are his words. Those words, she says, are “are inconsistent, unreliable, and highly subject to change based on what’s politically convenient for him.” I don’t disagree with that at all. She says he has a “newly minted pro-life stance,” and I do not disagree with that either. (That was also true of Mitt Romney, by the way). At the same time, Hillary Clinton has a political track record, and it is one firmly committed to the pro-abortion position. Just a few months ago she made the news with her comments on Meet the Press in which she said that unborn children do not have constitutional rights. She also said that the absence of those rights does not negate the responsibility to do whatever can be done medically to help the unborn child of a “mother who…wants to make sure that the child will be healthy.” Those words are significant because the imply Clinton’s well-known position that the medical community should also do whatever is necessary to end the life of an unborn child when the mother does not want that child. Here is an excerpt of Clinton’s response to Chuck Todd’s question, “When or if does an unborn child have constitutional rights?”

Well, under our laws currently, that is not something that exists. The unborn person doesn’t have constitutional rights. Now, that doesn’t mean that we don’t do everything we possibly can in the vast majority of instances to, you know, help a mother who is carrying a child and wants to make sure that child will be healthy, to have appropriate medical support. It doesn’t mean that you don’t do everything possible to try to fulfill your obligations. But it does not include sacrificing the woman’s right to make decisions.

Dingle continues on to say that abortion—while deeply important to her—is not the only issue she is considered. She also makes it clear that she is voting for Clinton because she agrees with Clinton on enough issues to warrant her vote. If she did not, she says, she would abstain from voting or would vote for a third party candidate because she does not believe in voting against someone. Wrote Dingle, “I find enough I can affirm and identify with in the positions and record of Hillary Clinton.… Aside for abortion – which I do care about deeply – I see the Democrats as the party that champions other pro-life issues more effectively and consistently.”

Quite frankly, that statement blows my mind, so I found it very interesting to explore Dingle’s rationale. And she did not hold back, believe me. She enumerated ten ways in which she feels Clinton is a more pro-life candidate than Trump (and Republicans in general). Her first example is the lives of people with disabilities. Donald Trump has a hideous record of statements and insults directed toward and about individuals with disabilities and there is no defense for those statements. Clinton has a more admirable record of statements made about the still-existing need to provide more help and greater access for individuals with disabilities. So I will let Dingle have this point, but I do want to mention that the Americans with Disabilities Act was signed by a Republican president (Bush 41) and Republicans Rick Santorum and Sarah Palin, among others, have rock-solid records on the issue of individuals with disabilities, due in no small part to their own experience as parents of children with disabilities (and their position that parents who are told their child will have a disability should not have the right to abort that child—a position Clinton does not hold).

Dingle’s second point is on the matter of women who would otherwise get abortions. She suggests that “empowering poor and low-income women can make a difference in overall pregnancy termination rates.” I find the word empowering to be trite and therefore almost devoid of meaning, but Dingle specifically mentions family supports—especially for single mothers, increased educational access and frank conversations about the issue of rape. Dingle says Clinton started the first rape crisis hotline in Arkansas and was “considered a leading advocate for abused and neglected children” shortly after leaving law school. That’s commendable, but it does not ignore the fact that Clinton only advocates for the rights of children who are already born—while simultaneously advocating for a woman’s right kill that child before it is born for no other reason than the fact that she does not want the child. In a 1995 speech at the UN women’s conference in Beijing Clinton made a gutsy statement, given the location of the conference. She said, “It is a violation of human rights when babies are denied food, or drowned, or suffocated, or their spines broken, simply because they are born girls….” That’s absolutely true. But let us not forget that Clinton supports the right of a woman to have a doctor do those exact same things to a baby before it leaves the womb. While Marco Rubio’s assertion earlier this year that Clinton supports abortion even up to the due date of the child may be a small stretch, Clinton said on Meet the Press Daily on September 28, 2015, “”There can be restrictions in the very end of the third trimester, but they have to take into account the life and health of the mother.” Note the key words—very end of the third trimester.

Dingle writes, “As the mother of children who one day might benefit from any or all of these policies [that can benefit women who might otherwise have an abortion], I can’t look them in the eye, say I value them deeply, and then justify a vote for Trump. As someone who believes the best anti-abortion policies prevent abortions rather than ban them, I can’t say I’m pro-life and say I’m with him. I can’t.”

To that I would ask Dingle, Could you look those same children in the eye and say you voted for a woman who believes you had the right to kill them before they were born if you had wished to do so?

I am not going to take the time to discuss all of Dingle’s points because I do not feel they all need to be discussed. It is true that Hillary Clinton has a more admirable record on some issues than does Donald Trump. There is no defending Trump’s treatment of, and comments about, women. Wrote Chediak,

Trump has directly profited from the debasement of women. Trump was the first to put a strip club in a casino in 2013, the Taj Mahal in Atlantic City. Trump was a frequent guest on the Howard Stern show, where the two men regularly objectified women in the most degrading of ways. When we combine this record with Trump’s boasts of marital unfaithfulness and (more recently) his grotesque remarks about Megyn Kelly and the looks of Carly Fiorina and Heidi Cruz, it’s hard to argue that accusations of misogyny are unjustified.  (emphasis mine)

But Dingle seems to lose her grasp of reality when she says Clinton will be a better candidate for the lives of our armed forces. After admitting that Clinton made a complete mess of Benghazi, Dingle writes, “but I do think Hillary learned from the grievous errors leading up to and following that horrible day.” Really? Based on what? When questioned by Congress she said, notoriously, “what difference does it make now?” I do not think that shows any lessons learned. Dingle cites James Comey’s failure to indict Clinton over her use of a private e-mail server as an example only of poor judgment. I think, despite Comey’s statement, that conclusion is erroneous. There is evidence that Clinton knew exactly what she was doing, and continued to do it intentionally—if for no other reason than to avoid future FOIA requests. Her behavior would have resulted in an indictment for anyone else.

Dingle says she was “I was astounded by the number of military leaders speaking at the DNC…vouching Hillary as the best choice for our troops and most knowledgeable in this area of policy.” I wonder if she has checked out the number of military leaders who have said that Clinton is absolutely not the best choice for our troops? I think she would be even more astounded.

In an article in WORLD Mindy Belz wrote, referring in part to a number of pieces the magazine has run exposing connections between the Clintons and rogue Nigerians,

Our reporting uncovered multiple ties between the Clinton Foundation, Hillary herself, and Nigerian business interests who benefited from the United States not cracking down on terror in Nigeria. It’s a small anecdote. But it fits a pattern of cover-up; of Clinton denying shady practices plain for all to see; of her dealing with rogues, defying the law in plain sight, and daring anyone to catch her. A nuclear arsenal and the world’s best army won’t be in trustworthy hands on her watch.

In November 2015 Rasmussen Reports reported that a “RallyPoint/Rasmussen Reports national survey of active and retired military personnel finds that only 15% have a favorable opinion of Clinton, with just three percent (3%) who view the former secretary of State Very Favorably. Clinton is seen unfavorably by 81%, including 69% who share a Very Unfavorable impression of her.”

In March of this year, on americanthinker.com, retired Air Force Colonel Chris J. Krisinger wrote, “If polling is any indicator, Mrs. Clinton has few fans in the military. … Given the military’s performance-based ethos, coupled with the ideals and standards U.S. military members are held to account for, it seems increasingly likely that few among them would publicly offer up their names and professional reputations for her political fortunes.” So there may be plenty of military personnel who oppose the notion of Donald Trump as Commander in Chief, but there are no doubt just as many who oppose Clinton for that position. And she, by the way, has a track record on which to base such opposition.

Near the end of her post Dingle writes, “One reason I’m voting for Hillary is that I know what and who I’m voting for.” That, in my mind, is exactly why I could not vote for Clinton. I know what I am voting for and I could never in good conscience lend my support or endorsement to Clinton’s past or promises for the future.

A different take on Clinton comes from a (much shorter) blog post by Helen Wickert on courageousmotherhood.net and entitled “An Open Letter to Hillary Clinton.” Having stated that she would love to be able to celebrate with her daughter the first nomination of a woman for president by a major political party, Wickert writes that she cannot. “Sadly, Mrs. Clinton, you have shown not only my daughter but all daughters—and not only in this country but globally—that in order to, in your words, ‘shatter the gla’ you have to lie, cheat, abuse, insult, bully and ignore.”

Wickert writes, “Mrs. Clinton, how can I possibly tell my daughter to follow you as an example after you allowed your husband to assault and demean multiple women throughout his political career?” Good question—especially since Dingle says that one of the reasons she is supporting Clinton is Trump’s abysmal record toward women. Trump demeans women with his words and actions, Dingle says. No argument from me on that one. But has not Clinton done the same? In January of this year the New York Times ran an article that enumerated a number of instances of Clinton’s attitude toward the women who accused Bill Clinton of sexual harassment or of having affairs with them. According to George Stephanopoulos Clinton said “We have to destroy her story” when Connie Hamzy came forward against Bill Clinton in 1991. The article also references Clinton’s approach toward Gennifer Flowers and quotes “one of her closest confidantes” as saying that Clinton called Monica Lewinsky “a narcissistic loony toon.” You can read the article for yourself if you want to know more.

Wickert also asks,

How can you get up and speak about income equality and then pay your own male executives considerably more than your female staff? How can you receive donations from countries that publicly abuse, shame and even execute their own women? Yet you continue to boast about how you stand for women’s rights. Double standard?

I have nothing to add to that, but it would be interesting to know how Dingle would respond. Wickert also raises the issue of Clinton’s $12,000 jackets she often speaks in and the six-figure speaking fees she collects. How do those facts contribute to Clinton’s ability or desire to help women who are struggling?

Wickert wasn’t through though; she also writes this:

You have the interests of only one woman in mind here: your own. You have done nothing to bring the United States together. Quite the contrary—you have done your best to divide, and you have succeeded. Congratulations. You crave power, and you will do whatever it takes to get it. You have lied, cheated and let down your own country.

Now it would be difficult to suggest that Trump has done much to bring the country together either. I am not suggesting that he has. But I am suggesting that Dingle’s assertions about Clinton being the better candidate really do not make much sense when you truly compare the two candidates.

This is already long and is only getting longer, so the time has come to begin moving toward a conclusion.

I said earlier that I would come back to Naselli’s example of an election between Hitler and Stalin. Obviously that would be an extremely undesirable choice to have to make, and if there really were a U.S. election with two such candidates it would be quite tempting to abstain or vote for a third party candidate. However, I said this was a perfect example because if we reflect back to World War II we see that the United States actually did choose Stalin over Hitler—just long enough to defeat Hitler. Very few people, if any, in the U.S. liked the idea of working together with the Soviets, but it was a temporary necessity in order to defeat Nazi Germany, which was an even worse evil at that time. History bears out that there are times when the adage is indeed true that “the enemy of my enemy is my friend.” In the 2016 presidential race, Donald Trump is the enemy of Hillary Clinton.

Dingle writes that she has changed her mind about support for abortion being a deal breaker position. I cannot agree with her. Instead, I side with John Piper, who wrote back in 1995, “I believe that the endorsement of the right to kill unborn children disqualifies a person from any position of public office.” Now I should clarify that, supporting the freedoms which make our country the great country that it is prevent me from saying that I actually believe that such a position disqualifies a person from running for or holding that office, but I do believe that it disqualifies me from ever voting for such a person—and I think it should have the same impact for anyone who claims to be pro-life. Writing on The Gospel Coalition web site, Thomas Kidd wrote earlier this month, “Just what we know about her views on abortion and the rights of conscience should disqualify her, in my opinion, as a political option for Christians.” Despite Dingle’s best efforts, there is simply no way to claim to be pro-life and support a person who passionately defends a woman’s right to choose abortion.

Back in April Naselli wrote that if Trump and Clinton ended up being the nominees there would basically be four options for voters: (1) Don’t vote; (2) vote for Clinton; (3) vote for Trump; or (4) “vote for someone else who has no chance to win.”

I do not think number one or number two are real options for believers—or for anyone who believes that there are responsibilities that come along with being a citizen of the United States (and a citizen of heaven, for those in the “believer” category).  That leaves three and four. There are arguments to made for and against voting for Trump. I have discussed some of them already, and I will share just a couple of more thoughts from Russell Moore.

Again, in Christianity Today, Moore wrote this:

For starters, unless Jesus of Nazareth is on the ballot, any election forces us to choose the lesser of evils. Across every party and platform, all have sinned and fall short of the glory of God. Still, the question is a valid one. Believing in human depravity doesn’t negate our sense of responsibility.

Moore also wrote this:

Can a candidate make promises about issues then do something different in office? Yes. Can a candidate present a sense of good character in public then later be revealed to be a fraud? Sure. The same happens with pastors, spouses, employees, and in virtually every other relationship. But that sense of surprise and disappointment is not the same as knowingly delegating our authority to someone with poor character or wicked public stances. Doing so makes us as voters culpable. Saying, “the alternative would be worse” is no valid excuse.

That is why, bottom line, I do not believe a Christian can vote for Hillary Clinton. Neither can someone who does not profess Christianity but does claim to be pro-life. Such a vote would be, in Moore’s words, “knowingly delegating our authority” to someone who has said she defends the right of women to kill their unborn children.

That still leaves the question of whether or not to vote for Trump.

There are plenty of intelligent arguments being made both for and against doing so. Many people I respect are passionately in favor of supporting Trump. Many others I respect are passionately opposed. Several months ago I said myself that I did not know how anyone who professes to be a Christian could support Donald Trump for president. At the time I said that there were other Republican candidates still in the race, but if I felt that way then can I change that position now? Should I? That brings me back to the question I asked near the beginning of this lengthy piece, “whether or not someone who is not an acceptable candidate at one time can become an acceptable candidate later when said candidate has not changed at all but the environment in which he is running has changed and the options have diminished.” As I said, I think that is Grudem’s position. I just need to determine whether or not it is mine.

Chediak suggests that voting for a third candidate—whether a proclaimed candidate or a write-in—is the appropriate choice. “By voting for neither Trump nor Clinton, we do not participate in our country’s decline. We lay the groundwork for a brighter day to come,” he says. David French, writing for National Review, says, “It is hard to face the fact that — on balance — Trump is no better than Hillary Clinton. Hillary is a dreadful politician, and Republicans have waited for years for a great candidate to take her on. They’re still waiting. It’s Democrat versus Democrat for president, and no amount of wishful thinking can change that sad reality.” And Matthew Franck, writing on thepublicdiscourse.com, a web site of The Witherspoon Institute, said this of Trump:

Was there ever a candidate more obviously unqualified for high public office, as measured by his dearth of relevant knowledge and experience, his willfulness and self-absorption, his compulsive lying and inconsistency, his manipulative using of other people, his smash-mouth rhetoric and low character? For anyone professing conservative principles, the first problem with Trump is that he is not one of us, has never been one of us, shows no sign or capacity of becoming one of us, and hardly cares to pretend to be one of us. Even “what about the Supreme Court?” has no grip on my conscience when I try to imagine Donald Trump in the Oval Office. I cannot trust him to choose judicial nominees wisely, and there are other things whose cumulative weight is greater even than this variable.

We haven’t even the consolation of thinking of Trump as a certain kind of Republican who is not actually conservative but who at least recognizes our vocabulary when he hears it. No, Trump would not know a conservative principle if it kicked him in the shins. This is a nominee who, in my estimation, cannot earn my vote even as a “lesser evil” or an “at least he’s not Hillary” candidate. I waver between believing that his defeat would be the worst thing to happen to our country and believing that his victory would be.

At the beginning of his piece Franck sets the stage by recounting being asked this: “If your vote were the deciding one in the election, with either Hillary Clinton or Donald Trump becoming president on the basis of your vote alone, for which one would you vote?” No one is ever actually in that position, of course, a fact that Franck acknowledges, and which leads him to his ultimate conclusion:

Vote as if your ballot determines nothing whatsoever—except the shape of your own character. Vote as if the public consequences of your action weigh nothing next to the private consequences. The country will go whither it will go, when all the votes are counted. What should matter the most to you is whither you will go, on and after this November’s election day.

I understand Franck’s point and I think one’s own character and conscience certainly must be factors in how to vote. At the same time, loving God necessarily entails loving each other, and I do not feel it can be justified biblically to act in a way that could result in contributing to Hillary Clinton becoming the president. That means that Naselli’s fourth option—voting for someone who has no chance to win—is not an option at all if voting for that person will have the resulting impact of helping Clinton win. (See again Grudem’s point that voting for such a candidate is in essence a vote for Clinton).

Tony Reinke, by the way, added a few more options to the four voting choices Naselli presented. One of those was, “Vote utilitarian by choosing a major candidate based on who would appoint the best SCOTUS judges.” This argument is consistent with what Eric Metaxas said in a recent interview: “We need to take seriously the realization that the wrong people in the Supreme Court can effectively end our form of government. That’s why, for all the shortcomings, I would say we have no choice but to vote for Trump.” Reinke is not persuaded by this argument, though, saying “it remains difficult to know how many SCOTUS judges will be selected in the next four years, maybe only one (to fill Scalia’s vacancy). After last summer I have a hard time believing SCOTUS, in any forms, is little more than a codifier of public opinion.” I think that’s unlikely. Ruth Bader Ginsburg is probably not going to be able to serve another four years. Anthony Kennedy is 80 and Stephen Breyer will be 78 next week. So there is a high probability than the next president will appoint more than one justice to the court.

The lasting influence of SCOTUS justices is undeniable. It is no coincidence that the average age of the last four appointees—Roberts, Alito, Sotomayor and Kagan—was just shy of 53. A Supreme Court justice can easily serve thirty years—longer than seven presidential terms. So this has to be a serious consideration.

That is why, combined with everything else I have said here, I believe that voting for Donald Trump is the right thing to do for voters who live in a state that is not a sure thing for Trump to win. There are plenty of states where the vote is going to be very close, and these states are likely to determine the outcome of the election. Recent elections have all been close in electoral votes. Some states, though, are not really “up for grabs.” I live in South Dakota, for example, and it was last won by the Democratic nominee in 1964. In 2012 Obama received only 40% of the vote in the state. California, on the other hand, has not voted Republican since 1988 and is highly unlikely to do so this year. But if you live in a state that could go either way—Ohio, North Carolina, Florida, Virginia among others—I believe voting for Trump is the right thing to do. I could vote for Trump with a clear conscience if I lived in one of those states because it would be the most effective step I could take to prevent Hillary Clinton from becoming president. It would, in other words, be me loving my neighbor by doing what I could to ensure that the worst candidate did not win the election. I am not certain that makes Trump a good candidate, but if doing what is best for the nation as a whole—which is another way of saying loving my neighbor—is what Grudem means by Trump being a good moral choice then I agree—within the confines of what I stated above.

For those, like me, who live in states where the outcome is unlikely to be a real race, though, I think voting your conscience is the right thing to do. Notice I did not say not voting is the right thing to do, because I do not see that ever being the appropriate choice, but voting for a third party candidate or a write-in candidate is justifiable in those situations, and if it will ease your conscience or help you sleep better, then it is definitely the right choice. In fact, perhaps even more than that, I think it is the right choice because it communicates effectively that you are concerned about this country—enough to be an involved citizen—and are not pleased with either of the two major party candidates that were nominated this year. If there is enough of that kind of voting there may well be attention paid. There is no way, though, that a third party candidate is going to win the election this November (assuming nothing drastic changes between now and then) and doing anything other than whatever you can do to prevent Hillary Clinton from winning simply cannot be an option.