It’s Happening

shutterstock_598168121I realize that some people considered my post about the unconstitutionality of government restrictions on gatherings to be alarmist. We are in the midst of an unusual situation that calls for unusual measures in order to save lives, after all. Before I go on, let me clarify that at no time did I intend to suggest that all recommendations and guidelines should be ignored or that COVID-19 is a farce. I understand that the virus is real, I understand that there may be need for precautions and even extraordinary steps to be taken. At the same time, please realize that there are real, informed and legitimate differences of opinion on what those steps should be. Even more importantly, please realize that someone—namely, at the moment, me—can simultaneously value life, acknowledge the threat that is COVID-19 and still believe that the Constitution should not be violated. I happen to believe that constitutional protections are there for a reason and need to be protected even when they are most inconvenient.

When I posted Unconstitutional Limitations I actually hoped that my concerns were a bit overwrought…that the restrictions on group gatherings, and thus on religious gatherings, was going to be the extreme end of end of government violations of the Constitution. I hoped that we would make it through COVID-19 and then, as cooler heads prevailed, people would look back and realize that the actions taken during the scare were not okay and could not be permitted to happen again. Sadly, I was wrong.

In the past week, there have been more, and more egregious, examples of government overreach and constitutional violation by state and local governments. President Trump still seems to realize the constitutional limitations on the federal government and has even expressed them in explaining why he is not issuing a national stay-at-home order. Just yesterday, at his White House briefing, CNN’s Jeremy Diamond asked President Trump why he is not following the recommendations of Dr. Fauci and others and issuing such an order. “We have a thing called the Constitution, which I cherish, number one,” was Trump’s response. He did not stop there, though. He continued, regarding the eight governors that have not issued state-wide stay-at-home orders, “Number two, those governors, I know every one of them, they’re doing a great job. They’re being very, very successful with what they’re doing. And, as you know, I want governors to be running things. In some cases, we’ll supersede.” That is called federalism, and that is exactly how the United States is supposed to operate.

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Kristi Noem

My own state’s governor, Kristi Noem, is one of those that has not issued such an order. When asked why, she said, “South Dakota is not New York City. The calls to apply for a one-size-fits-all approach to this problem is herd mentality. It’s not leadership.” She expressed her respect for the Constitution, and then said, “The people themselves are primarily responsible for their safety. They are the ones that are entrusted with expansive freedoms. They’re free to exercise their rights to work, to worship, and to play. Or to even stay at home, or to conduct social distancing.” It is indeed a sad day when it is newsworthy and even controversial for a governor to say that the people have been entrusted with “expansive freedoms” and are responsible for the how the utilize those freedoms.

Last Monday, Rodney Howard-Browne, the pastor of The River at Tampa Bay church, was arrested for “‘intentionally and repeatedly’ defying emergency orders mandating that people maintain social distance and stay at home,” according to the New York Times. The Hillsborough County sheriff announced that he had the arrest warrant and Howard-Browne turned himself in. He was freed less than an hour later after posting bond. The sheriff, Chad Chronister, said this regarding the arrest:

His reckless disregard for human life put hundreds of people in his congregation at risk and thousands of residents who may interact with them this week in danger. Our goal here is not to stop anyone from worshiping, but the safety and well-being of our community must always come first.

As best I can tell from a very cursory exploration of The River at Tampa Bay’s web site, I do not agree with a lot of what they teach and practice. But that doesn’t matter. What matters is that a pastor was arrested for exercising his constitutionally-granted rights to religion and assembly.

The good news is that the Hillsborough County Council recognized the dangerous ground upon which their sheriff had tread and voted on April 2 to reverse its order and recognize churches as essential. The mayor wanted to impose ten-person limits and six-foot distancing requirements on churches by the Council overruled her recommendation. Also, on April 1, Florida governor Ron DeSantis issued Executive Order 20-92, amending 20-91, and declaring religious worship as an “essential activity.” DeSantis said, “I don’t think the government has the authority to close a church. I’m certainly not going to do that.” Governor Greg Abbott issued a similar executive order on March 31, GA 14, which includes “religious services conducted in churches, congregations, and houses of worship” as essential services. According to an article in The Guardian, Delaware, Louisiana, Michigan, Mississippi, New Hampshire, Tennessee and West Virginia have also issued exemptions for religious gatherings and, as mentioned in the previous post, Michigan has exempted them, as well.

Robin Fretwell Wilson, Brian Smith and Tanner Bean authored the essay “Defiant Congregations in a Pandemic: Public Safety Precedes Religious Rights,” which can be found on the web site of the Canopy Forum. “Now is not the time to stand on our rights. It is not the time to pursue contentious religious freedom claims in the courthouse. Instead, it is a time to lead by example, as so many congregations and people of faith have done,” they wrote. I have to disagree. Congregations need to prayerfully and carefully consider whether or not to meet in person, and I am by no means recommending that all churches decide to do so. But it is absolutely the time to stand on our rights. It may not be the best time to file “contentious religious freedom claims in the courthouse” but if it comes to that then yes, such action should be taken. Hopefully, that is not likely to happen. Hillsborough County was facing a lawsuit over its arrest of Howard-Browne, and it chose to back down.

Some leaders, though, may choose to push the matter, and if they do, laying down and allowing our constitutional rights to be trampled is not what anyone should do. On

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Bill de Blasio

March 27, New York City mayor Bill de Blasio said of churches and synagogues, “[Law enforcement] will inform them they need to stop the services and disperse. If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently.” Permanently. Jeremy Dys of First Liberty Institute said, “The American people will tolerate a lot during a time of a national pandemic. They will not tolerate government threats to permanently close Houses of Worship.” Ken Ham, founder and president of Answers in Genesis, tweeted, “It’s a warning for the future when one person claims they have the power to close churches permanently. That’s what we’ve seen in China & Cuba.”

Thankfully, the backlash against de Blasio was swift. Kristen Waggoner, of Alliance Defending Freedom, wrote an editorial for the New York Daily News entitled “Sorry, mayor, you can’t close churches permanently: De Blasio’s wild overreaction to houses of worship that buck social distancing.” News outlets all over the country reported on the threat and most of the stories included the remarks in opposition and even explanation as to why de Blasio could do no such thing.

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Andrew Cuomo

There are other examples of government overreach this past week, too. They do not relate to religious freedom specifically, but they should be as alarming to anyone who loves the Constitution. Governor Andrew Cuomo of New York said in his April 3 briefing,

I’m going to sign an executive order that says the state can take ventilators and PPE from institutions that don’t need them now and redeploy them to other parts of the state and other hospitals that do need them. Those institutions will either get their ventilator back or they will be reimbursed and paid for their ventilator so they can buy a new ventilator.

The Wall Street Journal was incredibly kind to Cuomo in its report on his briefing, headlining its story, “New York State to Shift Ventilators to Hospitals in Need.” Thankfully, the sub-heading was more accurate, reading, “Gov. Cuomo to sign order allowing state to take unused ventilators, masks from institutions.” Bob Lonsberry, of Syracuse’s 570 WSYR radio station ripped Cuomo’s announcement; his post started this way:

You’ve been triaged, upstate New York.

The governor put the black tag around your neck.

Some will live and some will die and, well, you don’t get to live.

That’s what Andy Cuomo’s decree of Friday means. Your ventilators go to his voters and when you get the COVID, well, good luck to you. If all goes well, your family can have a memorial service in a year or two, after the Chinese sell us the vaccine.

Maybe you think that’s an overreaction, but I imagine that if someone was promising to confiscate the ventilators from your local hospital you would be upset too.

And in Los Angeles, Mayor Eric Garcetti encouraged Angelenos to snitch on anyone violating his Safer at Home order. At his March 31 briefing he said,

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Eric Garcetti

If any non-essential businesses continue to operate in violation of the stay at home order, we’re going to act to enforce the safer at home order and ensure their compliance. You know the old expression about snitches. Well, in this case, snitches get rewards.

He later said, “We want to thank you for turning folks in and making sure we are all safe.”

I don’t know what the rewards are, and I don’t want to know. What I do know is, encouraging people to spy on and report their neighbors sounds an awful lot like the U.S.S.R. I simply cannot imagine that that is the United States of America that anyone really wants to live in.

 

Shredded Constitution photo credit: Shutterstock.

Kristi Noem photo credit: U.S. Department of Agriculture/Public Domain .

Bill de Blasio photo credit: By Gage Skidmore from Peoria, AZ, United States of America – Bill de Blasio, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=81675099

Andrew Cuomo photo credit: By Delta News Hub – Flickr.com, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=88545211

Eric Garcetti photo credit: By Gage Skidmore from Surprise, AZ, United States of America – Eric Garcetti, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=87271081

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

1024px-John_Marshall,_U.S._Secretary_of_State
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

 

 

 

 

 

 

Strange Bedfellows

shutterstock_1546072433You’ve no doubt heard the old proverb that politics makes strange bedfellows. Never have I experienced the reality of that on a personal level more than I have over the past couple of months, thanks specifically to the impeachment of Donald Trump.

Back in December, Mark Galli, who was the editor in chief of Christianity Today, wrote an editorial advocating for the impeachment of President Trump. I do not disagree with what Mark Galli said about Trump as a person, but being immature and nasty on Twitter is not an impeachable offense. Galli’s assertion that the “facts are unambiguous” about Trump’s phone call with Ukraine shows his lack of political understanding and his fervent desire for Trump to go. Sadly, he failed to realize that using impeachment to remove Trump because you don’t like him is just as wrong for evangelicals as it is for Democrats.

Shortly thereafter, Timothy Dalrymple, CT’s president, wrote to effectively defend Galli’s editorial. Dalrymple made some valid points, but he politicizes the term “evangelical.” What Dalrymple fails to acknowledge, and what was a huge problem with Galli’s editorial, is that if those who dislike Trump’s character and personal baggage–and I count myself in that group–allow that to become justification for impeachment, an incredibly dangerous precedent will be set. Impeachment has to be reserved for that for which it was intended or we risk seriously weakening our form of government. Does Trump have flaws? Absolutely. Should we jump on board the silly allegations from House Democrats to remove him? Absolutely not. The ends do not justify the means.

That whole situation left me, in the eyes of many anyway, defending President Trump, which is not something I have been inclined to do. He has done some wonderful things as president, including recognizing Jerusalem as the capital of Israel, appointing pro-life justices to the Supreme Court, defending prayer in schools, attending the March for Life Rally, etc. But he has also demonstrated immaturity, lack of tact and badgering/belittling behavior toward his opponents. In short, he has usually been anything but presidential. For those reasons, I cannot say that I like President Trump. It is almost a reversal of what the situation was like when Ronald Reagan was president. Many people who did not agree with Reagan politically liked him personally. Now, I agree with Trump politically quite often, but I cannot stand him personally.

Last week my proverbial bedfellow changed when I asserted my respect for Mitt Romney’s decision to vote to convict President Trump on one charge of the impeachment. I said then, and I say now, I do not agree with his conclusion, but after listening to Mitt Romney’s interview with Chris Wallace I do respect his decision to vote his conscience. Is that not, after all, exactly what we expect our elected officials to do?

Well, that position met with some opposition among my own friends but it met with far more opposition among Republicans and conservatives around the nation. One friend insisted to me that conscience was not what senators were to use to inform their vote; instead, they were to rely on the Constitution and on the facts that were presented. But I disagree; the two are not separate. Obviously, Mr. Romney felt like the actions of Mr. Trump were consistent with the constitutional threshold for impeachment. He said as much in the interview. Accordingly, he was voting his conscience and the Constitution by voting guilty on one charge. Article II of the Constitution specifically says “high crimes and misdemeanors.” Romney thought Trump’s actions rose to that level. He interpreted the “facts” as rising to the level of impeachment and thus, based on those facts, he believed guilty was the right vote. His conscience dictated that he vote accordingly–according, in other words, to his understanding and interpretation of the facts. He interpreted the Constitution strictly and that is precisely why he voted the way that he did–he believed that an impeachable offense had occurred, based on the facts and evidence he had received.

So, whether we agree with him or not–and as I said, I don’t–Romney’s conscience dictated that he do what he thought was consistent with his oath. Romney heard the facts that were presented, and in his interpretation, they met the threshold for impeachment. He then voted what he thought the facts warranted–guilty on one charge, not guilty on the other. He did what he thought was right, not what he knew his party wanted him to do. And that, by the way, is constitutional. He was faithfully executing his responsibility, just as he swore he would do. The fact that I, or seemingly most any other Republican, did not agree with his interpretation of the facts does not mean that he was wrong. (To throw another strange proverbial bedfellow into the mix, for these same reasons, I also respect Tulsi Gabbard’s earlier decision to vote “present”).

No “high crimes” are found in the Constitution. Article II, Section 4 says, “Treason, Bribery, or other high Crimes and Misdemeanors” (emphasis added). Obviously, then, impeachment can occur for offenses other than treason and bribery, but what those other offenses are is no spelled out. Abuse of power would certainly be one of them. If I thought Trump had abused his power then I might even agree with Romney. Based on the testimony I heard, I do not think he did, so I disagree with Romney. But I still respect his willingness to vote what he thought was right, knowing full well—as he was reminded by Chris Wallace—that he would face the full wrath of Donald Trump and an ongoing cold shoulder from his party. In short, there was no good reason, politically, for Mitt Romney to vote the way that he did. He knew that President Trump was not going to be convicted because there was no way there were going to be enough votes to meet the required two-thirds supermajority. So while others have chosen to attribute his vote to his personal animosity for Donald Trump, I am choosing to take Mitt Romney at his word. I cannot fathom any other reason why he would take the political risk he took to vote that way. And those consequences came swift and heavy. One person who had the audacity to say “Good for Romney” in response to a post on the Huck’s Army Facebook page stating that Romney was going to vote to convict, and asking for comments, received an immediate response from another individual saying “You are a jerk.” Really? Having a difference of opinion on Romney’s actions from the expected condemnation makes him a jerk? Why? Plenty of others called Romney pathetic, a disgrace, a traitor, a turncoat, a snake, a moron, a RINO and a Democrat masquerading as a Republican. Let’s not forget that just eight years ago Mitt Romney was the Republican nominee for President of the United States!

Furthermore, I was deeply troubled by how many people—professional pundits and social media commentators alike—who ridiculed Romney for invoking his faith as one of the reasons for doing what he thought was right regardless of the political consequences. We cannot want a politician to be both influenced by his faith and to ignore his faith. Many Republicans, and particularly many conservative Republicans, advocate for political positions, and even political action, that is based on and derived from a sense of morals that is often rooted in Judeo-Christian faith. Romney is a Mormon, of course, but most Mormons are quite conservative morally and socially. Would we really want a candidate or an elected official who was not influenced by his faith? How deep, sincere or meaningful would such faith be, anyway, if an individual were able to set it aside when considering some of the most important decisions he would ever make?

Finally, Romney’s vote also brought to light another matter that is worthy of serious consideration. Much has made of the fact that with his vote to convict, Romney became the first U.S. senator ever to vote to convict a president of his own party. That’s troubling to me, but not for the reason you probably think. Many seem to be taking the position that Judge Jeanine Pirro so obnoxiously took yesterday on her FOX show “Justice with Judge Jeanine.” “Permit me to introduce you to a non-leader,” Pirro began, before reminding viewers that Romney was the first senator to ever commit such a perfidious act. “How dare he!” she went on. “How could he? And why would he?”

Pirro went on to call Romney an “embarrassment” and to say, “Your jealousy of this man [Trump] is a constant rage burning within you because you can never rise to the heights that he has. Because guys like you fold like wusses and you don’t have any selflessness or the ability to think about others, as Donald Trump has thought about making America first.” Pirro later concluded her childish rant saying, “How about you get the hell out of the United States Senate?”

(By the way, add Pirro to those who lambasted Romney’s reference to his faith. She said, “Do you ever wonder why people never mention God or religion — only bring it up when they get caught doing something or when they need an excuse for something they did? What a bunch of phonies.” I don’t know how often Pirro expects Romney to mention his faith in order for it to satisfy her standards, but this is certainly not the first time he has mentioned it).

By now you have likely gathered that I was not only unimpressed with Pirro’s monologue but also with her position. I said that I am troubled by the fact that Romney is the first senator to vote to convict a president of his own party—but the reason that troubles me is because it hasn’t happened before. Donald Trump is the third president to be impeached, joining Andrew Johnson and Bill Clinton on that short list. There were eleven articles if impeachment filed against Andrew Johnson, though senators decided that eight of them were objectionable and only considered three. Like Trump, Clinton faced two charges. Why would it take until the sixth impeachment charge for a senator to vote for conviction of a president of his own party? That fact reveals two possibilities, neither of which are appealing.

On the one hand, it could indicate that impeachment charges thus far have always been politically motivated. That would be tragic. As I have already argued in this space, impeachment is to be used for “Treason, Bribery, or other high Crimes and Misdemeanors.” Those are not political matters. If we allow our elected officials to pursue impeachment out of political motivation then we will have a serious problem.

On the other hand, if impeachment articles have been legitimate and not motivated by politics, Romney’s first-ever vote could indicate that senators are more loyal to their party than they are to what is right. How did I reach that conclusion? Well, it seems improbable that there could be six articles of impeachment that were not politically motivated and yet all proved to be erroneous charges. But if the impeached presidents were actually guilty of even one of those charges, and the evidence supported that conclusion, but no senator of the president’s own party would vote accordingly, what other conclusion could there be? The votes on Trump’s impeachment actually confirm this likelihood, as it also was the first time ever that no member of the opposing party joined in support of the president.

George Washington warned sternly against “the baneful effects of the spirit of party” in his Farewell Address. Blind allegiance to party, said Washington, “serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions.” In other words, no good can come of it! Washington’s advice then? “[T]he common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”

As he so often has, Washington proves once again to be prophetic. We are seeing unmistakable examples of the “spirit of party” in the United States just about every day. This does not bode well for our nation or for our future.

Oh, one more thing regarding strange bedfellows… I don’t even like Mitt Romney.

 

Photo credit: Aaron-Schwartz / Shutterstock.com

Powerless Protests

After all of the attention given to NFL players sitting or kneeling during the National Anthem over the weekend of September 24, I decided to share on Facebook this simple truth:

So, (federal) minimum wage is $7.25 an hour or about $15,000 per year. Each year the minimum salary in the NFL increases by $15,000; this year it is $465,000.

According to the U.S. Census Bureau, the average household income was $73,298 in 2014. The average NFL salary in 2015 was $2.1 million.

If for no other reason than that, then, every player in the NFL should be standing proudly at attention every time the National Anthem is played, giving thanks that they live in a country where the lowest paid person in their profession can make thirty-one times the federal minimum wage…for playing a game.

I stand by that assertion. Whatever it is that NFL players are intending to protest or express their displeasure for by failing to show proper respect to the American flag, they are at the same time disrespecting a flag that represents a country in which they have the opportunity to make a very comfortable living for playing a game.

Not surprisingly, my post generated lots of attention—from both sides of the debate. Quite a few people agreed with my sentiments, “liking” or even “loving” the post. But certainly not all. While I did not receive any Facebook emojis symbolizing anger with the post, there were comments shared, and “likes” for those comments, that made clear the fact that there is definite difference of opinion on this matter as well as a clear lack of understanding over the real issue.

For example, one friend commented, “I know my view point is not a popular one, but here you go. Every NFL player has the constitutional right to take a knee for what they believe. It’s the same right that our president has to say they should all be fired. I do find it heartbreaking that there is so much divide in our beautiful country.”

Well, I agree with the last statement wholeheartedly. There is entirely too much division within our country, especially on matters of race, and there appears to be far more attention given to those who exacerbate that divide than to those who seek to heal it. But my friend’s comment missed the point. I was not saying that football players do not have the right to sit or kneel during the anthem. I agree wholeheartedly that they do. But not everything that some has a right to do is right to do. What are they accomplishing by sitting or kneeling? By failing to show proper respect for the flag of the country that allows them the opportunity to earn millions of dollars playing a game, are they contributing to a healthy discussion about whatever it is they are protesting? No. Are the bringing solutions to the table? No. I think the president’s comments were ill-advised too (but then what’s new?). I am not saying he is right and they are wrong. I am simply stating my opinion that what they are doing is not contributing to a solution and is, if anything, drawing attention to themselves, not the issues they are seeking to draw attention to—whatever they may be.

Then another friend chimed in. A former student of mine, in fact. She said, “They aren’t disrespecting the flag though and they aren’t protesting the flag.” To the second part of that statement, I agree, which is why I also said their protest is ineffective. By sitting or kneeling during the National Anthem they are not really addressing whatever it is they are trying to protest. To the first part of the statement though, all I can say is this: they aren’t? How is failing to stand for the National Anthem not disrespecting the flag? There really is no denying that fact. If someone fails to stand in court when the judge enters and the bailiff announces “all rise,” I guarantee you it will be seen as disrespect for the office the judge holds if not for the entire judicial system. That individual would either find himself sitting all day in court waiting for his case to be called (best case scenario) or find himself in contempt of court. Remember, the right to free speech is not absolute—and it is certainly not absolute within the four walls of a courtroom!

This friend went on to say, “And though our country does allow them the opportunity to make millions, it doesn’t allow everyone that right. In fact there are some pretty glaring injustices within our country and some pretty obvious failures staring us in the face.” Here we have another error. No one has the right to make millions of dollars. There is no government system on the face of the earth that could really grant or enforce such a right. However, everyone in the U.S. does have the opportunity to earn millions of dollars. That is what a free market economy is really all about—equality of opportunity. Any young man in the United States has the opportunity to make millions of dollars playing in the NFL. Very few of them will, because some do not have the athletic ability, others do not have the drive or passion to do so, and even some who have both of those things may suffer an injury that ends their chance to make it to the pros. Every man and woman (legally) in the U.S. has the opportunity to make millions of dollars per year in any number of fields. Sports is one, of course, but so is entertainment or writing or business or…fill in the blank! Last August, Bustle.com reported that Simone Biles, the 2016 U.S. Olympic team gymnastics phenom, has a net worth of $2.5 million. “Not too shabby considering that Biles can barely legally vote,” the report stated. The 2012 all-around gymnastics gold medalist, Gabby Douglas, has a net worth of $3 million according to a January 2017 article in Gazette Review, and she’s just 21.

More on these young ladies later. Back to my friend, though, her comment continued,

They aren’t contributing a solution as I imagine it’s difficult to present such a manifesto on the playing field but many nfl players are active in charities showing at least some concern for their fellow man off the field. Does it draw attention? Yeah that’s kind of the point to protest. And it does draw attention to them though in Kaepernick’s case it wasn’t exactly good attention. But everyone knows why he protested. A quick Google search tells you that. Plus it’s started all this conversation. So I’d say it got the point across pretty well because we’re still talking about it.

Well, let’s examine this line of thinking. Is it difficult to present a manifesto on a playing field? Perhaps so. Perhaps rightly so. After all, the playing field is for playing, after all. But if it is true that the players protesting are unable to adequately communicate the motives of their protest through their actions, the protest is, by definition, unsuccessful. Are many NFL players active in charities off the field, showing “at least some concern for their fellow man”? I am sure they are. What in the world does that have to do with anything, though? Does someone’s participation in a charity make it excusable for him to disrespect the flag of the United States? No. Do his attempts to show some concern for his fellow man allow him to behave in way that blatantly shows disrespect for both his country in general and others of his fellow men (and women) who fought, and died, for what that flag represents? No. And, for the record, there are plenty of people who are active in charities and show concern for their fellow man that are adamantly opposed to the flag/anthem protest. So, this is really a non sequitur.

Is the point of a protest to draw attention? Actually, no. Drawing attention may be a necessary element of achieving a protest’s real point, but the point of a protest is to address wrongs and bring about their correction. Protesting the American flag and the National Anthem brings attention to the individuals refusing to stand, not to whatever those individuals think they are protesting. My friend says everyone knows why Colin Kaepernick protested and then says, “a quick Google search will tell you that.” Well, those statements are contradictory. If everyone knows, a Google search would not be necessary. And if a Google search is necessary, then the protest was ineffective. If it is necessary for someone to look up the reason for a protest action, said action is a poorly-selected means of protest. When the Sons of Liberty tossed tons (literally) of tea overboard into Boston Harbor, no one had to wonder or ask around to find out what they were protesting. The parades, pageants and picketing that went on in the pursuit of women’s suffrage left no doubt what the protest was seeking to accomplish. When Rosa Parks refused to give up her seat to a white person, no one wondered what she was protesting. When the Montgomery bus boycott resulted, no one wondered what they were protesting. When sit ins occurred, individuals were respectfully, but immovably, sitting at the very lunch counters that would not serve them. They were protesting the wrong directly and in a manner that left no one wondering what they wanted.

Finally, in this quote anyway, my friend suggested that the protest started this whole conversation and therefore was pretty successful because we are still talking about it. But therein lies the rub. We are talking about it—the protest—not whatever it is that is being protested. That’s due in no small part to the fact that very few people seem to know what exactly is being protested!

My friend suggested a Google search to find out what motivated Kaepernick, so I took her advice. In doing so I found the explanation provided by Kaepernick himself, who said in an interview, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” Eric Reid, who protested with Kaepernick, wrote in the New York Times, that they were protesting “systemic oppression against people of color, police brutality and the criminal justice system.”

Okay, so since Kaepernick started it, we might assume that is what is driving it. Last Sunday, however, the majority of those participating the protest were not doing so because of systemic oppression or police brutality but in response to the ill-advised words of President Trump.

The NFL, by the way, is not helping this situation. On that note, President Trump was right. The league is creating a double standard by allowing this “speech” that violates its rules yet fining players over other “speech” such as Brandon Marshall wearing green shoes to promote Mental Health Awareness Week, William Gay wearing purple cleats to direct attention to domestic violence, DeAngelo Williams being denied the right to wear pink cleats and accessories to bring attention to breast cancer, and being fined for wearing eye black stating “Find the Cure.” After the deadly police shooting in Dallas, the Dallas Cowboys requested that the league allow them to wear an “Arm in Arm” decal on their helmets to honor the slain officers; the league said no. The league threatened fines for players wearing custom cleats to commemorate 9/11, and only yielded after a strong public backlash. NFL players are not permitted to yell t officials, taunt other players or even dance in the end zone after scoring a touchdown. Apparently violating league rules about the National Anthem will bring no consequence, though. According to USA Today, an NFL spokesman said on September 25, “that players would not be punished for breaking a league rule that says they must appear on sidelines during the national anthem. Players on the Seattle Seahawks, Tennessee Titans and Pittsburgh Steelers all skipped Sunday’s anthem.” Hmmm. Is it really free speech when the NFL is deciding whether or not it is permissible? No, it is not. It is sanctioned speech.

But back to the motivation for these protests. My friend who suggested a Google search for identifying Kaepernick’s motive focused on income disparity in her Facebook comments. When I replied to her comment above by saying that no one has the right to be a millionaire but everyone has the opportunity, she shot back with this:

No[t] everyone does not have the opportunity. I, as a white woman, make $0.85 to every $1 a white male makes. Black women earn $0.65. Hispanic women earn $0.58. Plus minimum wage isn’t even livable in most states which makes it rather hard to get the ‘opportunity’ to make millions. There are lots of reasons for this wage disparity, including discrimination. But my point is that the reality is not everyone had that opportunity. It’s why there is a top one percent and then the rest of us. It’s unrealistic to assume “well I’ll work hard and one day before a millionaire”. But for some it’s equally unrealistic to imagine a life outside poverty or a life reasonably comfortable.

Well, this is interesting. I don’t think it has anything at all to do with the anthem protests, but let me address it anyway. Is there some income disparity in the U.S.? Yes, there is. Is it as horrific as the liberal Kool-aide vendors would have us believe. In April 2017 the Pew Research Center reported that the gender gap in pay has narrowed since 1980 and that among young adults (ages 24-35) the gap is down to 10 cents per dollar earned difference between men and women. IN 1980 it was only 67 cents per dollar. That is a significant improvement. The disparity is not purely a result of some conspiracy to discriminate against women, however. The Pew Research report indicated that women were considerably more likely than men to take breaks from their careers to care for family members: 28% of fathers had reduced their work hours at one time or another to care for family while 42% of mothers had done so; 24% of fathers had taken a significant amount of time off, while 39% of mothers had done so; 10% of fathers had quite their job completely, but 27% of mothers had done so. It is not unreasonable to think that women who reduce work hours or temporarily leave employment completely will see their wages increase at a slower rate than men who do not, all other things being equal. After all, rarely can someone leave the work force for a time and re-enter at the same salary he or she left. The report indicated that women were almost twice as likely as men to say that they had been discriminated against at work because of their gender, but that was still only 18% to 10%. No gender-based discrimination is appropriate, but “only” is appropriate in that sentence because it indicates that gender-based discrimination alone cannot account for the disparity in pay.

And minimum wage? It is not supposed to be livable for a family, and not even for very long for an individual. By its very name the wage is the minimum someone can earn. That necessarily implies someone with minimum skills doing the work. There are innumerable studies to indicate that education and experience contribute mightily to improved earning power. And in a free market economy, the market is supposed to drive wages anyway. The very existence of a minimum wage goes against true free market economic principles and creates an artificial floor.

I do not want to get too side-tracked on this income disparity issue but I want to go back to Simone Biles and Gabby Douglas for a minute. I selected them as examples on purpose. They are both female and both African-American. What’s more, they both come from families that do not typify the likelihood of high earnings. According to what I have read and heard, Douglas was raised by a single mother. Biles’ mother was unable to care for Simone and her siblings due to her drug and alcohol addiction, and the children were in and out of foster homes before being adopted by their grandparents. Both of these young ladies persisted and worked hard to pursue their dreams, overcoming what could be seen as domestic obstacles, historic obstacles and even the obstacle of pursuing a sport that has had very few African American competitors at the highest levels. After all, Dominique Dawes, in 1996, became the first male or female black athlete to win an Olympic medal in gymnastics. So to my friend, I would suggest that both Douglas and Biles are proof that the opportunity to become highly successful—and highly compensated—is indeed available to all.

Sticking with the theme of the Olympics, by the way, ask Jordyn Wieber in 2012 or Douglas herself in 2016 what they think of artificially leveling the playing field. Both gymnasts were the victims of the ridiculous Olympic gymnastics rule that restricts all-around finalist competitors to not more than two per country despite the fact that their performances rightly earned them a place in the finals if only the highest qualifiers were allowed to advance. Given that both of them have experienced in an athletic context what it is like to have their hard work and legitimately-earned opportunity negated by a silly rule that seeks to level the playing field, I wonder if they would be in favor of silly rules leveling the economic playing field?

There are so many factors involved in economic disparity that it cannot be diluted down to a simple “white guys make more money than everyone else” conclusion. Location makes a difference, experience does, education does, skill does, industry does… So, by the way, does personal choice. I currently serve as the superintendent of a small Christian school in South Dakota. I also have three graduate degrees and nineteen years of experience. Yet, an African American female with no teaching experience and only a bachelor’s degree will make more money as a first-year teacher in New York City this year than I will in my position. Seeks like a disparity doesn’t it? Sure… But the cost of living in New York City is exponentially higher than it is in the middle of South Dakota. When I was the executive director of a non-profit ministry providing residential childcare for at-risk youth I was making more than twice as much money each year as I do now, with even more lucrative benefits than I have now. But it is not the fault of any person or any system that I am not in a position with lower compensation.

But, back to the flag protests. The same friend who brought up the wage disparity issue later in the Facebook exchange said that the problem was unfair sentencing practices.

African Americans and whites use drugs at about the same rates but the imprisonment rate of African Americans for drug related charges is almost six times higher than whites. The imprisonment of female African Americans is twice the rate of female whites. Total, African Americans are incarcerated more than five times the rate of whites. If African Americans were imprisoned at the same rate as whites, prison populations would decline by almost forty percent. African Americans make up thirteen percent of the population but forty two percent of death row inmates and thirty five percent of those executed. Forty eight percent of whites were able to receive a sentence less than death through plea bargaining but only twenty five percent of black and twenty eight percent of Hispanics were able to receive plea bargains in exchange for life sentences.

Okay, so this a completely different path now, but it needs to be addressed as well. Interesting, isn’t it, how someone who said that the reasons for the protests were obvious is now on her third different explanation for the reasons? My friend is quoting almost verbatim from the NAACP’s Criminal Justice Fact Sheet. Fair enough. It is true that African Americans and whites tend to use drugs at approximately the same rate. And it is also true that African Americans tend to be incarcerated more often than whites. Michael Tonry, an American criminologist, is the McKnight Presidential Professor of Criminal Law and Policy at the University of Minnesota Law School, and he explained to Politifact.com in February 2016, “Whites are more likely to sell to people they know, and they much more often sell behind closed doors. Blacks sell to people they don’t know and in public, which makes them vastly easier to arrest.” In July 2016, Politifact.com reported, “Blacks arrested for drugs are more likely to be sent to jail because they’re more likely to have had a previous run-in with the law. Police tend to patrol high-crime areas more aggressively, which tend to be the poor areas, which have a higher proportion of minorities. Thus, they’re more likely to be stopped for something and have a rap sheet once a drug charge comes along.”

Back in 1995, Dr. Patrick Langan, Senior Statistician for the Bureau of Justice Statistics at the U.S. Department of Justice did some research on this disparity, and his report was titled, “The Racial Disparity in U.S. Drug Arrests.” What did he find? Well, for starters, he said this: “Drug users are not all equally at risk of being arrested for drug possession. Certain factors (for example, frequent use) place some drug users at greater risk than others.” Those factors, Langan reported, included type of drug used, frequency of use and location of use. He then concluded, “Although blacks are 13% of drug users, they should comprise over 13% of drug possession arrests since the type of drugs they use, the frequency with which they use them, and the places where they use them, put blacks at greater risk of arrest.” He went on to state, “How much in excess of 13% cannot be precisely determined…but the data do allow estimates to be made.”

Before I give you his estimates, let me tell you this: the NAACP Criminal Justice Fact sheet states that “African Americans represent 12% of monthly drug users, but comprise 32% of persons arrested for drug possession.” Interestingly, those numbers have changed little from 1995 when Langan made his report; he wrote, “Blacks are 36% of drug possession arrests but 13% of drug users, a disparity of 23 points.” If the NAACP figures are accurate then there is now a disparity of 20 points. But what else did Langan find? He reported that “although blacks were 13% of drug users, given how they differed from whites with respect to increased risk, they should amount to 23% of arrests, or ten percentage points beyond the 13% figure.” And that disparity of 23% that he reported? “The analysis revealed that 10 of the 23 points were attributable to race-neutral factors,” he concluded. If that analysis holds true today, than the percentage points of disparity attributable to factors that are not race-neutral (i.e., racism and discrimination) have decreased from 13 points to 10 points since 1995. There is still much room for improvement, of course, but it would appear that progress is being made in the right direction.

It is true that African American make up 42% of death row inmates and only 13.3% of the population according to the U.S. Census Bureau. Those classified as “white alone, not Hispanic or Latino” make up 61.3% of the population and 42% of the death row population. Those who are Hispanic or Latino make up 17.8% of the population and 13% of death row inmates. But there are other factors to consider in this argument as well. For example, African Americans do make up 35% of those executed on death row, but whites, on the other hand, make up 56% of death row executions. So blacks and whites represent virtually equal percentages of those on death row, but the percentage of executions is 21% higher for whites than blacks. That part of the conversation seems to have been overlooked by my friend…. (All of those statistics, by the way, come from the Death Penalty Information Center).

Well, I need to quit. This has turned much too long already. Here’s my point, though. The American flag/National Anthem protests are not working. They are drawing attention to players, not to issues—as demonstrated by the fact that no one seems to even know for sure what the issue is! Furthermore, the en masse NFL protests last week were directed far more at President Trump than at racism or police brutality or wage disparity or incarceration disparity or whatever else the alleged issue being protested may be. What’s more the “take a knee” protest is spreading to colleges and even high school sports and, with all due respect, I doubt seriously that many of those high school students have any idea what they are really—supposedly—protesting. Is there room for improvement in race relations in the U.S.? Yes, there is. Is that going to be achieved by anyone, regardless of race, gender, profession, income, or numerical participation, taking a knee, taking a seat or refusing to take the field during the singing of the National Anthem? No. Every player for every team could take a knee every time for the rest of the season but it will, in and of itself, do no good. Therefore, I urge those who really do have a legitimate concern they would like to see address, to find a meaningful, productive and effective means of protesting or, more beneficially, engaging so that solutions can be found.

Intentional Idiocy

Fortunately I am not the leader of the free world and therefore no one has been criticizing me for not responding more quickly to the white supremacist nonsense in Charlottesville, VA five days ago. My delayed addressing of it in this space has nothing to do with me not condemning it as strongly as I possibly can and everything to do with being a wee bit busy with the start of a new school year. However, I feel I have reached a point of preparedness for the week ahead that I can pause for a while this morning and type out some of that which I have been thinking.

The first thing I would like to say is simply this: the idea that anyone could still hold to the idea of any race being superior to any other goes beyond upbringing and prejudice and serves as the strongest possible example of intentional idiocy. It is absurd and nonsensical for anyone in the twenty-first century to believe with any level sincerity that one race is superior to any other. The evidence against such a notion is so overwhelming that anyone who thinks it is truly characterized by mental dullness (part of the dictionary.com definition of “stupid”). In case that is not clear, let me be more specific: anyone who actually believes that one race is superior to another suffers from a mental defect. That does not, however, excuse anyone from their ludicrous notions because this is a mental defect that is entirely self-inflicted. Or, at a minimum, self-perpetuated.

Having lived in the south for a number of years I am well aware that there are still areas where people commonly refer to the Civil War as the War of Northern Aggression. There are people who still hold to the notion that the South will rise again. There are people who still believe that anyone that is not white is inferior, lesser and somehow other than fully, equally human with those who are white. I also recognize that many of those people were born into families and communities that perpetuate that nonsense and have simply been parroting the foolishness they received from their parents, who received it from their parents, and so on back up the family tree. But that does not excuse their stupidity. There have been examples throughout U.S. history of individuals who were born and raised in areas and families of strong white supremacist convictions who overcame that apparent disadvantage by recognizing and accepting the truth about human equality and choosing truth over prejudice. There are even individuals who were born into slave holding families and attended churches that taught that blacks were created by God to be in a condition of servitude to the whites who overcame that by embracing the truth of human equality. Sarah and Angelina Grimké would be two great examples but there are many others.

Sadly, the church does bear some responsibility for the racist notions of many white supremacists. Many Christian schools, especially in the American south, were birthed as part of the “white flight” movement after racial integration became the law. Many white churches in the south would not allow blacks to attend their services much less become members. Interracial marriage was forbidden in many churches–and in some it still is. Bob Jones University, in South Carolina, lost its non-profit status for a while over its refusal to give up its ban on interracial dating, claiming the Bible supported their position. I was present in a Southern Baptist church some twelve years ago when the church leadership announced one Sunday from the pulpit that after prayerful consideration their decision was that the church’s pastor had not done anything biblically wrong by officiating an interracial wedding. It blew my mind that that was still an issue in twenty-first century America. I was relieved that they reached the correct decision, but it should never even have been a question. There is simply no way to accurately interpret the Bible and come to any position other than full human equality regardless of race.

I have disagreed with some of what she has written since, but Dr. Christena Cleveland’s 2013 book Disunity in Christ provides excellent insight into why so many Christians continue to struggle with fully embracing equality in action even when they want to do so and can articulate those convictions verbally. She expresses what needs to happen succinctly on page 61 of her book when she writes this:

We must relentlessly attack inaccurate perceptions in our everyday interactions, weekly sermons, denominational meetings and dinner table conversations. Now that we are aware that categorizing is polluting our perceptions of other groups in the body of Christ, we must do the work of purifying our perceptions. What we need to do is really quite simple: rather than continuing on as cognitive misers who lazily rely on inaccurate categories to perceive others, we need to engage in what my friend Reverend Jim Caldwell calls cognitive generosity. We need to turn off autopilot and take time to honestly examine our polluted perceptions.

Parents, extended family members and communities bear responsibility for perpetuating the notion of racial supremacy or inferiority as well. We know this is true because racism and hatred are not naturally present–even in a world marred by the total depravity of man due to original sin. Jimmy Fallon started The Tonight Show on January 14 by speaking out against hatred and the nonsense in Charlottesville. In his comments he mentioned his 2 and 4 year-old daughters and said, “They don’t know what hate is. They go to the playground and they have friends of all races and backgrounds. They just play and they laugh and they have fun.” I have seen that childlike innocence of race demonstrated in my own daughter. My brother and his wife have four adopted children. All but one of them are of different racial backgrounds than my brother and his wife and that difference is immediately noticeable due to their varying skin tones. When my daughter was still a toddler they adopted their fourth child and she is only one who looks at all like she could actually be their child. My daughter was old enough to understand that the necessary steps and time had not occurred for this new cousin to have joined the family through natural means. As we explained that she was adopted just like the other three children in their family my daughter expressed shock that the three others were not the natural children of my brother and his wife. The varying skin tones meant nothing at all to her!

This is why I call racism and notions of racial supremacy intentional idiocy. It takes intentionality to accept that one race is superior to another. It takes intentionality to teach that to children. It takes intentionality to continue accepting it even in the face of reality and mature understanding that all humans truly are created equal. It takes a conscious commitment to and genuine intentionality to look at yourself in the mirror every morning and think that you are better than someone else simply because your skin color is different than theirs, to think that you deserve more or better than someone else simply because of your race. Doing that for a while, based on your upbringing and your surroundings, may be excusable. Continuing to do it when you’re old enough to know better makes you an intentional idiot.

The same day that Jimmy Fallon began his show by addressing the Charlottesville mess, an editorial by Cal Thomas appeared in The Washington Times. Thomas makes a number of excellent observations in the piece, but one of the most significant is his reminder that there is no such thing as a supreme race precisely because there is no such thing as racial purity. Thomas writes, “Dr. Henry Louis Gates Jr., a Harvard professor, discovered in ‘Finding Your Roots,’ his PBS series on race in America, that there are no purebred humans. Mr. Gates himself discovered through a DNA test that he is descended from an Irish immigrant and a slave.”

The idea that there is no such thing as racial purity assumes, of course, that there is such a thing as race. A truly biblical worldview however goes even further and negates the notion of race completely. Are there various skin tones? Of course. But there is only one race and that is this: human. Answers in Genesis, the apologetics ministry that is most well known for its Creation Museum and Ark Encounter, has long taught that there is no such thing as race. Search “racism” on the AIG web site and you will find a page under their worldview section that beings like this:

The term race is often used to classify people based almost solely on physical characteristics. According to evolutionary ideas, these so-called races descended from different ancestors separated by location and time. However, based on biblical history, the term race must be incorrect. We are all one race (“one blood” in Acts 17:26), the human race.

It’s not just “black” and “white.” A person’s skin shade (what is on the outside) should in no way invoke any sort of prejudice or racist comments. What a difference we would see in our world if people reacted in accord with biblical principles, understanding all humans are equal before God, and all are sinners in need of salvation.

Anyone claiming to believe the Bible has to acknowledge that the Bible teaches several truths that fundamentally destroy any notion of race, let alone racial superiority. Genesis 1:27 says, “So God created man in his own image, in the image of God he created him; male and female he created them.” Genesis 5:1 says, “This is the book of the generations of Adam. In the day when God created man, He made him in the likeness of God.” God made man–and woman–in His own image. That word man is all-inclusive. Every human being is created in the image of God. Every human being is descended from Adam and Eve, the first man and first woman. Every woman being is also descended from Noah, since only Noah, his wife, their three sons and their wives survived the destruction of the earth by flood as described in Genesis 6-9. The Bible makes it clear that God does not show partiality and that He sent His Son, Jesus, to die on the cross to pay the penalty for human sin because He “so loved the world” (John 3:16), a statement which omits any reference to race. Jesus repeatedly commanded that those who follow Him are to love one another, that we are to love our neighbor as ourselves. James condemning the showing of any partiality. There is simply no biblical justification for racism or attitudes of supremacy.

But what about Charlottesville specifically? CBS News posted a photographic story on line that included some fifty-five images and paragraph-length commentary or reporting on each one. The title of the story is “White supremacist rallies in Va. lead to violence.” The first picture and caption stated that the rally was planned by white supremacists and “advertised as ‘Unite the Right.'” Whether “the Right” was intended to refer to the political right or to the notion of right as opposed to wrong, it was an inaccurate label on both counts. As demonstrated here already racism and ideas of supremacy are never right. And there is no evidence that most individuals who identify with the right wing of the political spectrum are racists. That some claim that does not make it so for all. Cal Thomas said that David Duke claiming that he voted for Donald Trump does not make Trump a racist or the KKK representative of Trump’s positions or goals for America. “Mr. Duke claimed in Charlottesville that whites elected Mr. Trump,” Thomas wrote. “Sufficient numbers of white voters also elected Barack Obama — twice — so what’s his point?”

The CBS story reported, on the next slide, that in July “members of the Ku Klux Klan demonstrated in Charlottesville against the planned removal of a statue of General Robert E. Lee, and called for the protection of Southern Confederate monuments,” a demonstration that came “[a]mid heightened community outcries for the removal of monuments honoring Confederate heroes.” Removing those monuments is another example of stupidity but advocating their removal–or even removing them legally–is no justification for claims of white supremacy.

The Civil War is an important part of American history and there is absolutely nothing to gain by trying to erase all images or references or even monuments to it from our land. According to a Washington Times article published just today, New Jersey Senator Cory Booker “plans to introduce legislation that calls for the removal of Confederate statues from the U.S. Capitol building.” The Capitol includes statues of both Robert E. Lee and Jefferson Davis. There are, according to the Architect of the Capitol, “three times as many statues of Confederate soldiers and politicians as there are statues of black people in the entire Capitol complex.” Is that sad? Of course. But there are ways to fix that problem without eliminating the Confederate statutes. And the statues in Statuary Hall were placed there by the action of each state legislature (each state gets two), so it would make far more sense for state legislatures to reconsider whom they want representing their state in the Capitol than it would for Senator Booker to propose the removal by congressional action. Most Americans do not know who the Confederates in Statuary Hall are and would not recognize their names or historical significance even if they did. (Think I’m wrong? Without using Google or any other resource, tell me who Edward Douglass White, James Zachariah George, Uriah Milton Rose or Zebulon Baird Vance were, for example). The collection of one hundred statutes was not completed until 2005 when New Mexico finally sent its second statue. Seven states have replaced one of their first two since Congress authorized replacements in 2000, so if a state–or the people of a state–want to put a different individual in the collection to represent them let them do so. For Cory Booker or anyone else, however, to say that they have to do so is dictatorial and a clear violation of free speech and other constitutional rights. Alabama replaced Jabez Curry, who was a Confederate politician, in 2009. Florida approved replacing Edmund Kirby Smith, a Confederate, in 2016. So let the process run its course! (The collection, by the way, only includes nine women and a handful of Native Americans, so there are a number of other underrepresented groups as well).

According to CBS, the white supremacist protesters marching into the University of Virginia campus were shouting “Blood and soil”, a phrase used by Nazis. Demonstrators were giving “Nazi salutes and chant[ing] ‘You will not replace us’ (and alternately, ‘Jews will not replace us’).” One man said he was participating in the march because, “‘Our country has been usurped by a foreign tribe, called the Jews. We’re tired of it.'” Business Insider reported that on Monday, August 14,

“Vice News Tonight” published a chilling 22-minute documentary featuring interviews with several of the white nationalists who helped lead the “Unite the Right” rally that devolved into violence and chaos in Charlottesville, Virginia, over the weekend.

Most prominently featured throughout the episode is Christopher Cantwell, a white supremacist who provided an in-depth description of his beliefs and his movement’s goals at the rally to Vice correspondent Elle Reeves.

Cantwell offered racist critiques of black and Jewish people, confirmed that his movement was violent, and defended the killing of Heather Heyer — the 32-year-old woman fatally struck on Saturday by a driver identified as a white supremacist — as “justified.”

Later in the article Cantwell was quoted as saying that he wanted a president far more racist than Donald Trump, whose daughter Ivanka is married to a Jew, and that “a lot more people are going to die before we’re done here.” He went on to say,

This is part of the reason that we want an ethno-state. The blacks are killing each other in staggering numbers from coast to coast — we don’t really want a part of that anymore, and so the fact that they resist us when we say we want a homeland is not shocking to me. These people want violence, and the right is just meeting a market demand.

Cantwell’s statements are disgusting. They may even be construed as illegal and treasonous. The right to free speech and opinion must be protected. We cannot make being an idiot a crime. But actions can become crimes. Illegal marches and protests, inciting others to violence and destruction of public property are all crimes, not to mention actual violence, and they should be treated as such. Anyone who broke the law at the Charlottesville rally should be arrested and prosecuted to the fullest extent of the law. Anyone who broke the law by yanking down a Confederate statue Durham, North Carolina should also be arrested and prosecuted to the fullest extent of the law. One good thing about modern technology like ubiquitous cell phone cameras and social media networks is that someone is almost always filming this nonsense–usually the idiots themselves–and posting it for all the world to see. Arrests and convictions should be rather simple.

There are very few things that will truly unite Americans anymore. Politics will never do it. Sports won’t. Religion will not. But the uncompromising and determined opposition of racial hatred and violence should unite us all. There is simply no place for it in this country. We should be just as united against the idiocy of Charlottesville as we were at the attacks of 9/11. The 9/11 attacks were attacks against the United States of America, against what we are, what we stand for and what we believe. The Charlottesville rally was no less such an attack.

 

 

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.

 

Why I Am Not Standing

Last Wednesday World Relief ran an ad in The Washington Post–a full-page ad, I believe–calling President Trump and Vice President Pence to support refugees. The ad featured a five paragraph letter over the names of Tim Breene, World Relief CEO, and Scott Arbeiter, World Relief President, and is being called the Still We Stand Petition. The ad also included the names of “top evangelical leaders from all fifty states” expressing their support for the need to reconsider Trump’s executive order limiting individuals from several majority-Muslim nations from entering the United States. The ad did include the names of several well-known evangelical leaders, including Tim Keller, Bill Hybels, Max Lucado, Ed Stetzer, Ann Voskamp, Leith Anderson and Stuart Briscoe. There were dozens of others whose names I did not recognize. (And with all due respect to Voskamp, she is Canadian, and lives in Canada, so the inclusion of her name on the letter was a bit illogical). The ad also featured, prominently, a web address where anyone who wants to do so can add their name to the letter. As of early afternoon on February 15, one week after the ad ran, the site was boasting just over 6,000 signatories. I am not one of them, nor will I be. Here is why.

Trump’s executive order suspends the U.S. Refugee Admissions Program (USRAP) for 120 days. Furthermore, the order states that during the suspension,

[T]he Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.

This is not a reckless or inappropriate action on the part of the President. I say this not as a Trump supporter–I would definitely not be comfortable classifying myself as such–but as a supporter of the Constitution and a Christian. The very purpose of the United States Constitution is, in large part, “to insure domestic tranquility, to provide for the common defense…and secure the Blessings of Liberty to ourselves and our Posterity” (see Preamble to the Constitution). Furthermore, the presidential oath of office includes stating that he “will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Therefore, calling a four-month timeout on refugee resettlement to the U.S. in order to make sure that the admission of refugees “does not pose a threat to the security and welfare of the United States” is both constitutional and appropriate (regardless of what a court said).

The World Relief letter states that Christians are taught to love their neighbor and that Jesus said that neighbor “includes the stranger and anyone fleeing persecution and violence, regardless of their faith or country.” The letter goes on to express support for the government’s need to set guidelines for the admission of refugees, but says that “compassion and security can coexist.” I agree with that–and I suspect Trump, Pence and others does as well. The very point of the timeout is to ensure that that can indeed happen.

The letter goes on to state, “Since the inception of the refugee resettlement program, thousands of local churches throughout the country have played a role in welcoming refugees of all religious backgrounds. Ministries to newly arrived refugees are ready, and desire to receive many thousands more people than would be allowed under the new executive order.” That is surely true. Churches and para-church ministries have indeed played a vital role in helping to provide for refugees and will no doubt continue to do so in the future. At the same time, it is not the responsibility of the United States government to accommodate the desire of churches to receive refugees. It is the responsibility of the United States to provide for the defense and security of the country.

The further reality is that churches, para-church organizations even individual Christians can still be involved in supporting and helping refugees even if those refugees cannot enter the United States. There are plenty of organizations providing much-needed assistance to refugees around the world and they would no doubt welcome the help the thousands of people signing this letter seem poised to offer.

Mindy Belz of WORLD is one of the most articulate and outspoken voices on the refugee crisis in the Middle East I think, certainly among Christians, and she has written that she does not think that Trump’s executive order will help Christians. It may not. Again, however, helping Christians in the Middle East is not the foremost priority for Donald Trump or any U.S. president. Nor should it be.

By the way, I am not staking unique ground in supporting the order. WORLD magazine has reported that “evangelist Franklin Graham, Liberty University president Jerry Falwell Jr., Southern Baptist pastor Ronnie Floyd, and Family Research Council president Tony Perkins are just a few of the evangelical leaders defending Trump’s order.”

Ironically, The Washington Post featured an article on February 10 taking Franklin Graham to task about what the Bible says. (Just ponder that statement for a minute, by the way…). The article, written by Joel Baden, who is a professor of Hebrew Bible at Yale Divinity School, says that Graham “could not be more wrong” when he said that immigration is not a biblical issue. But Baden fails to make his point. He provides ample examples of refugees and exiles being treated kindly and respectfully throughout Scripture. He writes, “Across the books of both testaments, in narrative, law, prophecy, poetry and parable, the Bible consistently spells out that it is the responsibility of the citizen to ensure that the immigrant, the stranger, the refugee, is respected, welcomed and cared for.” Further, Baden cites both the Old Testament–“When a stranger resides with you in your land, you shall not wrong him. The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt” (Lev. 19:33-34)–and the New Testament–“Love your neighbor as yourself” (which Baden calls the Golden Rule, but it isn’t)–to support his conclusion.

Mathew Schmalz, an Associate Professor of Religion at College of the Holy Cross, made the same arguments in Newsweek. Raymond Chang, a pastor, does as well for The Huffington Post.  He focuses on the biblical instruction to treat sojourners as those who are native born and Jesus’s statement that we will be judged according to how we treat “the least of these.” The problem is, none of these passages–or any other passages–instruct any country to throw open its doors to immigrants, refugees or exiles. All of these passages instruct that once strangers are in the land, the people who live there are to treat them with fairness, respect and compassion. I agree with that and I suspect Trump, Pence and others do too. None of them tell a country or a people to welcome absolutely anyone into their borders or to exercise no discretion in protecting their own borders. And again, it is entirely possible–especially in the day and age in which we live–to love and care for refugees even without letting them into our country.

Back in 2014 Wes Walker wrote on ClashDaily.com, “To suggest…that Israel would ever have willingly thrown open the borders to a swarm of culturally hostile foreigners, grant them asylum, and become financially responsible for their care is ridiculous. That would have been seen as an invasion force, and would have been treated as such.” The articles above, and others, that attempt to use the Bible as justification for letting any and all refugees into the United States, or for promoting refugee settlement here at the possible expense of national security, are missing the mark–and the intent of Scripture.

By the way, I am sure I am not the only one who sees the irony in The Washington Post, Newsweek and The Huffington Post attempting to use the Bible to support certain policy positions and government actions. I would love to see them make an effort to support a biblical position on things like abortion, marriage, homosexuality and gender issues among many others. That would be something I would take a stand for!