Monday, April 13, 2020

Part I

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More Than an Idle Threat: Real Assaults on Religious Liberty Emerge in the Pandemic

Consider this headline over the weekend from CNN: “Louisville police officers to record license plate numbers of Easter weekend churchgoers.” Now, over the course of the unfolding pandemic, we have made the point publicly in an article co-written in the Washington Post and elsewhere that churches should follow generally applicable shelter-in-place orders. That love of God and love of neighbor, understanding the rightful role of government, means that we understand that in the context of this pandemic as churches understood back in 1918 in the Spanish Flu pandemic, there was justification for ruling that all mass assemblies ought not to take place for a definable period of time. That’s a rational government policy. But when you consider the issue of religious liberty, that policy becomes unconstitutional if churches or religious gatherings are singled out.

But what we’re looking at here in this headline from CNN and in this order from Louisville’s mayor is something that goes far beyond a rational policy generally applied. Here you have the actual threat that police officers will be writing down license numbers of cars that are seen to be in a gathering of cars, more importantly, the people in the cars at what’s been described as a drive-in worship service. By the way, just as footnote, going back in history, the idea of a drive-in service goes back at least to the 1950s and ’60s with figures such as Robert Schuller who in his pragmatism had the idea of gathering people uniquely in a drive-in theater in order to preach or hold what was considered to be a worship service.

Now, let me be clear, my church didn’t have any kind of drive-in service on Easter and theologically and biblically, I don’t believe that’s the most appropriate way for churches to gather. But on the other hand, that’s not the issue here. The issue here is religious liberty. And what you have as an egregious aggregation of religious liberty when you have a government authority threatening to have police officers write down the license numbers, not only those who might violate a do not assemble order or a shelter-in-place order, but specifically those who otherwise keeping those orders are participating in what’s defined as a drive-in worship service. The point is, as long as people remain in their cars and they’re of the same household, it is going to be very difficult to see this as anything other than a specific targeting of religion, religious worship services, Christian worship services. Because after all, other drive-through services are still allowed. Consider drive-through liquor services here in the state of Kentucky. And if you can have legal drive-through liquor, it is hard to argue that you can’t have legal drive-in worship services.

It takes very careful Christian thinking, it actually takes careful constitutional thinking, to thread the needle rightly even in the midst of a pandemic. We might say, especially in the midst of a pandemic because one of the things that alert Christian citizens should always be watchful of is the fact that in the context of some kind of emergency, bad precedents can be established. Now, I mentioned the 1918 flu pandemic in the United States that was so deadly. It actually killed far more Americans than were killed in the course of World War I. What did or what should Americans, American Christians, have learned from that? It was the fact that when there is a generally applicable order, that is an order against all assemblies with a public health rationale, that should be respected for a limited period of time. The time that would be justified by the pandemic, by the goal of seeking to slow or stop the spread of an infectious disease. In this case a very deadly disease as was the case in 1918.

But over the course of the last several weeks, we have seen some government officials, indeed, not just a handful of government officials, go far over the acceptable line. They’ve gone over the line of the generally applicable policy, that means it’s applicable to the public generally. Religion is not singled out. Christian churches are not singled out. The governor of Kentucky, Andy Beshear issued a very strong warning and advisory against drive-in services, but he did not put them in the same category as services that would take place in a room. But Governor Beshear himself made an error earlier in the pandemic, a major error, when he said that churches should not meet, but he did not make that policy generally applied. He allowed at that point, high school basketball games and other assemblies to go on. Churches were singled out. That’s wrong. That’s patently unconstitutional. Governor Beshear did correct that by issuing a generally applicable policy shortly thereafter.

But across the nation, since the middle of March, we have seen governors, we’ve seen mayors, we’ve seen county commissioners and county health departments issuing policies that on their face are clearly unconstitutional, compromising and subverting religious liberty, which after all is not just one amongst other enumerated liberties enshrined in and respected in the United States Constitution, it is actually the first liberty as our founders understood. The liberty upon which other liberties depend. In the state of Nevada, governor Steve Sisolak also tweeted on the 8th of April that drive-in services would not be allowed. You’ve seen similar kinds of orders, but the language of those orders is very important. Is it a suggestion? Is it an urging? Is it an advisory or is it a commandment when it comes to the force of law? Or even in the case of what we saw here in Louisville, is there the threat that police will actually take down license plate numbers?

It’s hard to believe that that kind of language would be used by any American politician. You would think that the issue of respect for religious liberty would be so deeply ingrained in the American fiber that political leaders, regardless of party, regardless of office, would understand that they must do everything possible to make clear they are not violating or compromising religious liberty, that of all things, they’re being extremely careful, indeed assiduously so, so that they would not be in the position of appearing to compromise the religious liberty rights of their citizens. And when you consider the use of police, just consider what humanity has learned say just over the 20th century about what it means for a political authority to threaten to have the police take down license plate numbers.

Again, you can think of all kinds of mechanisms that would be at the disposal of government. That is the specific mechanism that government must not use, not without ample justification and without constitutional foundations. And that’s the problem. And in this case, it took a federal district court judge the day before Easter to issue a temporary restraining order against the policy of Louisville’s mayor declaring, “On Holy Thursday, an American mayor criminalized the communal celebration of Easter.” Now to be clear, the mayor of Louisville, the governor of Kentucky, and others in similar offices of authority have the right and they can argue the responsibility to issue generally applicable orders. But specifically threatening religious believers and religious congregations in a way that is not applied to other institutions, organizations or places of business, that’s a huge problem.

In this case, you’re looking at congregations that were not threatening to meet in person, in a room, in a worship center, sanctuary, temple. No, that will be covered by the very precedent that was established back in 1918. But telling people that they can drive-in their cars to the window of a liquor store, but they can’t park their car with the windows up near another car in order to hear a message or a worship service, well, that’s fundamentally unacceptable. In Mendocino County, California, the public health authorities even mandated that churches that are video streaming their services cannot include singing in the service.

Now, again, just consider that no one in the health department or no one with authority over the health department said, “You can’t do that.” Well, you might imagine the public health authority saying what they basically said in the policy, which is that singing can project moisture droplets that can include the coronavirus. Well, indeed, breathing can, breathing out can, exhaling. Not only coughing or sneezing, but also singing, but for that matter, projecting in speech, which is what the preacher does, it’s inconsistent to say, “You can’t have singing, but you can have preaching.” But of course it didn’t actually say you can have preaching. It just didn’t say you can’t have preaching even though it did say you can’t have singing. Not only singing, you can’t, according to this county policy, have wind instruments including even a harmonica.

Now, once again, I don’t ever remember a harmonica in a worship service in my church, but that’s not the point. The point is that when you’re looking at this, you have to consider what would be a generally applicable policy. These churches could be required to have the kind of physical distancing between all the very limited participants in a streaming worship service, but to tell Christians they can’t sing in praise and honor of God? That on the Sunday of all Sundays, most emphatically identified with the celebration of the resurrection of the Lord Jesus Christ from the dead, that Christians can’t sing? Well, that’s just unacceptable. It’s not only unconstitutional, it’s so far over the line. Again, you just have to ask the question, how did anyone think they would be able to do this in America?

You might think of many other ways they might have advised or even created policies for churches that are having these kinds of streaming services. They could have said, look, you have to have certain people in the room at a certain time without others. You could have said, there must be this particular distance between people, but to say no singing That was actually the mandate in not just one, but at least several county health departments across the country as well. At that point, we have to note that the particular issue is that here you have a government authority intruding upon the specific issues of the integrity of Christian worship. No government authority has any right to do such. I noted in an article I will release today that Martin Luther once commented that singing the great hymns of the faith would drive the devil to distraction. Evidently, he couldn’t even have imagined the Mendocino County health department in California. He would also have responded to that order with language that this Baptist cannot employ.

There are other issues, other arguments that we ought particularly to note as we’re considering the spread of these very bad ideas, bad policies, and bad precedents across the country. One of them has to do with government seeking to identify speaking specifically of Christian churches and other religious organizations what is and is not essential. Now, in one sense you might argue, irony intended, that it is essential to government, if you’re going to have a shelter-in place order or similar restriction, identify what is and is not essential. But when you look at governments indicating that liquor stores and pet stores are essential, but religious services are not, that’s a clear problem. And it’s not just that. Of course, in the city of Louisville and across the country, there are many government authorities arguing that abortion services are essential, but worship services are forbidden.

Now, what’s the point here? The point is that constitutionally, government should never be in the position of saying that religious services or any kind of religious ministry is nonessential. That on its face is unconstitutional. Nevertheless, government does have the power, especially in the context of a pandemic, particularly in this kind of context, to issue those orders that I keep repeating myself, would be generally applicable. It is interesting to note that on the front page of the local newspaper here in Louisville, the Courier-Journal, Governor Beshear went out of his way to say, “To our knowledge, 99.89% of all churches and synagogues and all mosques in Kentucky have chosen to do the right thing.” Now, I’m not exactly sure how the governor came up with that math. He didn’t just give a general number. He gave 99.89%, but regardless of how he came up with the math, the point is essential.

The big point to be observed here is how many Christian churches and other religious institutions have responded exactly in the appropriate way—and at great sacrifice. Understand what it means for churches not to gather together. Consider what it means for synagogues not to hold services even during the Passover and Jewish families not able to gather an extended family observances. Consider what is at stake here and understand that the governor of Kentucky actually made the point with his own math, 99.89%.

When you think about it, what is most amazing is not that there would be just a very limited number of outliers who if they are defying the no assembly policies deserve to be called out on it, and if they’re actually defying legitimate do not assemble orders, then the law can act as the law should. But even then, in the United States of America, a constitutional republic in which its Constitution has stood since 1789 enshrining religious liberty, freedom of assembly, and other essential liberties recognized as not being granted by the federal government, but rather granted by the Creator and respected by the government, what you have is the recognition that in the case of an emergency, emergency actions are sometimes necessary. But government officials should be doing everything possible, everything within their power, bending over backwards so to speak, to make abundantly clear that they will not and would not single out religious institutions, churches, and synagogues, that they would not single out religious services, and they dare not identify churches as nonessential, but rather they would understand that their arguments must be deeply grounded in what Christians and others would respect as constitutional and prudent and right. Again, evidently, those do not assemble orders are being respected by the vast majority of American citizens. Again, the governor of Kentucky said 99.89% of all congregations in the state and that’s the state of Kentucky.

Part II

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The Newest Nominee for the D.C. Circuit Court of Appeals? Judge Justin R. Walker, the Same Judge Protecting Religious Liberty in Kentucky

But next, I want to go back and take a closer look at the temporary restraining order that put a pause on the mayor of Louisville’s policies. That order handed down by United States District Court Judge, Justin R. Walker, of Western Kentucky.

Citing the mayor’s policy and his threat to have police take license plate numbers, the judge said, “The mayor’s decision is stunning and it is beyond all reason unconstitutional.” After introducing his order by looking at the history of religious liberty is cherished within the United States and respected by the United States Supreme Court in its decisions and precedents, the judge went on to cite the policy of the Louisville mayor using the mayor’s own words and then the judge decided a decision handed down just days ago at the Fifth Circuit Court of Appeals. “When faced with a society threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some real or substantial relation to the public health crisis and are not, ‘beyond all question, a plain palpable invasion of rights secured by fundamental law.’” Even in that statement, the judges of the Fifth Circuit were citing an established and previous court precedent.

Judge Walker got to the heart of the problem when he said that the orders coming from the Louisville government, we’re not generally applicable “to both religious and nonreligious conduct.” He continued, “Here, Louisville has targeted religious worship by prohibiting drive-in church services while not prohibiting a multitude of other religious drive-ins and drive-throughs including for example, drive-through liquor stores. Moreover, Louisville has not permitted parking in parking lots more broadly including again the parking lots of liquor stores. When Louisville prohibits religious activity while permitting nonreligious activities, its choice must undergo the most rigorous of scrutiny.” The judge then said, “That scrutiny requires Louisville to prove its interest is compelling and its regulation is narrowly tailored to advance that interest.” The judge citing previous precedents indicated that Louisville’s actions are under inclusive and overbroad. He said, “They’re under inclusive because they don’t prohibit a host of equally dangerous or equally harmless activities that Louisville has permitted on the basis that they are ‘essential.’”

In a powerful, very short sentence, Judge Walker wrote, “But if beer is essential, so is Easter.” Judge Walker’s ruling came down to the fact that in his view, the temporary restraining order was called for because he predicted that the church that was filing the case as plaintiff against the mayor’s policy was likely to win on the merits of its religious liberty claims.

But in one sense, here’s where things get very, very interesting. You may not have heard the name of judge Justin R. Walker, federal court judge in Kentucky. But if you have not heard that name, you just did and you’re about to in a big way. Just consider an editorial that ran days ago in the Wall Street Journal: “Get Ready for Another Court Fight.” That court fight is over President Trump’s nominee to the D.C. Circuit Court of Appeals. That is the second most important court in the United States of America. The Federal Circuit, the Appeals Court, that hears cases within the District of Columbia. It is, and has historically been the court that produces more than any other court those who sit on the Supreme Court as justices and the judge that President Trump, just days ago nominated to the D.C. Circuit is Judge Justin R. Walker, the Federal Court judge of Kentucky, the judge who handed down the temporary restraining order I have referenced throughout The Briefing today.

Back before this case was envisioned on the 4th of April, the New York Times ran an article by Carl Hulse that declared, “President Trump on Friday nominated Judge Justin Walker, a protege of Senator Mitch McConnell to a vacancy on the influential United States Court of Appeals for the District of Columbia Circuit touching off what is likely to be a contentious confirmation fight in the Senate.” Given the urgency of the battle over the federal courts in the United States, there will be no surprise that any nomination to the D.C. Circuit would attract controversy. But if you understand the issues we have just talked about today on The Briefing, you understand why this particular nomination might attract some particular controversy.

Judge Walker is indeed a protege of the Senate majority leader, Senator Mitch McConnell of Kentucky. He was indeed nominated just earlier this month by the President of the United States, Donald Trump. And of course this sets up another confirmation battle unlikely to be if there is no Supreme Court battle this year, the biggest judicial confirmation battle of this crucial election year in 2020. Judge Walker is a graduate of Duke University and the Harvard Law School and if confirmed he would be the youngest judge appointed to the D.C. Circuit in a generation.

That editorial that ran in the Wall Street Journal on the 6th of April spoke of the fact that many on the left would be offended by Judge Walker. And the editor said, “Mr. Walker’s real offense is his originalist judicial views, especially for a D.C. Circuit judge who can check the administrative state as well as his vigorous public defense of his former boss, Brett Kavanaugh, during the latter’s 2018 confirmation ordeal. We hope Republicans can remain unified,” said the Journal, “in what may become one of the most intense judicial attack campaigns of this presidency.”

Part III

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The Partisan Divide on Religious Liberty: It’s Increasingly Apparent

But at this juncture, I actually have to point to something else and that is a pattern and so much of what we are seeing here. It is a pattern that so many of those mayors and governors and others who are trampling upon or compromising religious liberty are elected Democrats. That is not just a matter of coincidence. It reflects the fact that the Democratic Party has been trending in a very secular trajectory for decades now. It’s to the point that many in the press and some in politics actually refer to religious liberty itself only with quotation marks around it, scare quotes, as if this is nothing more than a term of art and intellectual invention. It’s not a real thing. It’s just an argument.

The mayor of Louisville is a Democrat. Governor Beshear is a Democrat. Governor Sisolak of Nevada, a Democrat. California, almost entirely under the sway of Democratic politicians at the state level and in many county and municipal levels as well. Here in Louisville, you have the Democratic mayor threatening that there will be police to take down the license numbers of cars found to be gathered together for a drive-in worship service. You have Governor Andy Beshear, also a Democrat, but then you have Attorney General Daniel Cameron here in Kentucky, a Republican, who as the Lexington Herald leader indicated in its coverage of this issue, had indicated in a release that he as attorney general of the Commonwealth of Kentucky has no problem with drive-in services “if they comply with federal guidelines for social distancing to slow the spread of COVID-19.”

Again, the attorney general was very clear about the legitimate public health interest, but he was extremely careful not to make any statement or to apply or support any policy that would single out religious services in an unconstitutional manner. That’s what you hope for from an attorney general. But I also want to make clear that the majority leader of the United States Senate, Republican United States Senator Mitch McConnell of Kentucky sent a letter to Mayor Fischer dated April the 9th 2020, just before Easter in which the majority leader made clear his protest against the mayor’s policy and threats stating, “To my knowledge, the government has not imposed similar wholesale bands on gatherings of people in vehicles for commercial purposes, including large, heavily-trafficked retail operations, grocery stores, and many others.”

Senator McConnell also wrote, “Let me be clear. I believe churches should be following CDC guidance on mitigating the transmission of COVID-19 and support temporary government regulations consistent with that guidance. Religious organizations,” said the Senator, “share the national responsibility to fight the disease’s spread.”

He continued, “The reports of churches meeting in open defiance of CDC guidelines and thereby contributing to the spread of the disease are troubling and disheartening. I do not support those irresponsible gatherings.” But his next line, “But religious people should not be singled out for disfavored treatment.” That’s the point. It’s the essential point. It’s very important that government officials get that point, but it’s perhaps even more important than American citizens first of all, get the point, understand the point, and are ready to defend and define that point with our own constitutional liberties at stake. Just remember, here you have the mayor of a major American city threatening to have police take down the license plate numbers of cars gathered in a parking lot for a drive-in worship service, otherwise abiding by CDC and other government guidelines.

Consider this, in America comes the threat: they’re taking names, they’re taking numbers. In America, in 2020, it’s extremely important that all American Christians take note and in a hurry.