By DEACON MIKE MANNO, JD
Fortunately, unlike some, I am not totally isolated during this pandemic. My wife is working from home, she’s downstairs and I’m upstairs during the day and we meet in the kitchen for lunch; I have a dog that always wants on the other side of the door to the deck, and a cat that drinks my morning coffee when I’m not looking — well, I take that back, she drinks it whether I’m looking or not.
My normalcy is now an at-home wife, a dog that hopefully will settle down on the deck and let me work, and a caffeine-buzzed kitten. The 2020 all-American family.
I’m lucky. I live in Iowa and our governor, Kim Reynolds, has taken a very selective approach on this whole social distancing phenomenon. There are no blanket stay at home orders; however, places where people tend to congregate are closed, such as movie theaters, gyms, restaurants, etc., and we still maintain the magic ten person limitation. Other places are not so lucky.
Many who are reading this column are located where mandatory “shelter in place” orders have closed drive-in restaurants and services not deemed “essential” as defined by the local authorities, such as walking your dog alone, and — you knew this was coming — church services.
In Kentucky you now can be fined for attending a drive-in church service even though you never leave your car and if you do the state police will be taking down your license number and you might be getting a knock on your door. Of course you can go to an abortion clinic — that’s essential; God, apparently, is not. All courtesy of pro-abortion Gov. Andy Beshear.
On Easter Sunday there were dozens of cars in the parking lot of the Maryville Baptist Church in Hillview, Ky., to hear the pastor’s service over the radio. About 50 attended the service while Kentucky State Police placed quarantine notices on car windshields and wrote down license numbers.
In Mississippi, a church sued the city of Greenville after police there shut down a drive-in service to enforce Mayor Errick Simmons’ order prohibiting drive-in religious services. The suit was in response to Greenville police issuing $500 tickets to congregants who refused to leave the parking lot. The mayor backed down after a “clarification” from Gov. Tate Reeves. Also, Simmons said the fines would not have to be paid after U.S. Attorney General William Barr denounced the police action.
“Government is clearly overstepping its authority when it singles out churches for punishment, especially in a ridiculous fashion like this,” said Alliance Defending Freedom Senior Counsel Ryan Tucker. “In Greenville, you can be in your car at a drive-in restaurant, but you can’t be in your car at a drive-in church service. That’s not only nonsensical, it’s unconstitutional, too.”
In Louisville it took an order from a federal judge to open Easter drive-in services which had been banned by Mayor Greg Fischer on Holy Saturday, even though drive-up restaurants and liquor stores were allowed to remain open.
U.S. District Judge Justin Walker, in his ruling said, “The government plans to substantially burden their religious practices on one of the most important holidays of the Christian calendar, Easter Sunday.” He noted that the mayor had “criminalized” the celebration of Easter and called his actions “dystopian.”
On the other side, several challenges to worship bans have been rejected, most notably the Kansas Supreme Court has upheld Democratic Gov. Laura Kelly’s order limiting religious gatherings to ten people. And the ACLU, formerly an advocate for civil and religious liberties opined that individual rights must sometimes give way to the greater good. After all, when it comes to disease, we are not just individuals but also one big bio-mass.
Across the nation there are often conflicting regulations about who can do what, with many of the regulations and their enforcement seemingly authored by local officials on a power trip. For example:
In Chicago police broke up a funeral at Eastern Orthodox St. Odisho Church. New York’s Mayor Bill de Blasio warned that churches would be seized and shuttered if parishioners defy his shut-down order. In Washington State a pastor and his technical staff, well under the acceptable number of ten, were ordered under threat of arrest not to go into their sanctuary to make videos of their services for their congregants.
In Chincoteague, Va., a pastor held a service for 18 in a sanctuary that could hold just under 300 persons. For the extra eight people over the ten person limit they now face fines of $2,500 and a year in jail.
Of the 39 states that have stay at home orders, only 11 have a religious exception.
But not all of these orders apply to churches. In Brighton, Colo., a man was arrested and handcuffed for playing tee ball alone with his six-year-old daughter. And the queen of authoritarian leadership, Michigan Gov. Gretchen Whitmer, has not only closed all “nonessential” businesses but has ordered the remaining businesses to only sell essential items — thus you can’t buy a garden hose or a flag in a big-box store; in fact those items have to be roped off from the public. If Her Governorship doesn’t deem the item essential, you just can’t buy it in Michigan.
Oh, and just as an aside, she has also limited doctors’ access to the drug hydroxychloroquine. Apparently if Mr. Trump thinks it might have some possibilities, she won’t consider it essential. Robert Muise, chief counsel for the American Freedom Law Center in Ann Arbor, was on my radio program earlier and suggested that what is going on is partly a power grab to see how far those in charge can go.
This has gotten so out of hand that Attorney General William Barr has stated that his office will monitor the situation and the Justice Department has already intervened in several cases where religious freedoms were in jeopardy.
So the question that needs to be answered is: Can they do that? Can individual rights be curbed during a pandemic?
Well, the answer is yes and no.
Each state has inherent police powers to protect citizens during a public health crisis. In addition each state has constitutional and legislative provisions that govern in these situations.
There are two problems that immediately surface here. First is, how do you determine what are essential services? Here states have differed over things like liquor, abortion, gun sales, and religious expression, which would make it difficult for a city or state to defend orders such as drugstores being banned from selling hair dryers, cosmetics, or lawn ornaments.
In the area of constitutional rights, such as owning firearms and religious expression, the courts have given some leeway for states to act. Naturally courts will see some actions justified, and others not. The standard will be what lawyers refer to as “strict scrutiny.” What that means is that the state has the obligation to show that it is acting to further a compelling state interest, and it is doing so by the least restrictive means of achieving that interest.
Thus it is perhaps easy to see authorities justifying bans on large public gatherings because coronavirus is thought to be highly contagious; however, it is hard to see that prohibiting a drive-in service, or six people making videos of a pastor’s sermon would fit the “least restrictive” test.
There will be, to be sure, many lawsuits over these local orders. The keys will be whether the directives accurately set out what essential services (and in Michigan, essential items) are, then how compelling the state’s interest (in garden hoses – you’ve got to be kidding) is in the activity or item; then, if the state has a compelling interest, how narrowly drawn is the response so as not to overly burden an individual’s civil liberties.
Today there is no doubt that a public response to the epidemic is a compelling state interest. The question of essentialness and least restrictiveness will be where the upcoming cases will be won or lost. Poor Gov. Whitmer: She’ll ultimately lose on both.
And she won’t be picked to be vice president either.
(You can contact Mike at DeaconMike@q.com and listen to him on Faith On Trial every Thursday morning on IowaCatholicRadio.com.)
Powered by WPtouch Mobile Suite for WordPress