Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
Shortly before he died, François Mitterrand gathered his friends for one final grand meal. The meal featured ortolan, a rare bird, that was, illegal to consume. I recall discussing the meal with a colleague in Europe. His thinking was “Good for Mitterrand”; the great man ought to enjoy one final delight. I responded that that’s part of what separates America from Europe. The Biblical injunction “do not favor the poor or show deference to the rich” is a democratic standard. The law applies equally to everyone, from the poorest ditch digger to the wealthiest businessman and most powerful statesman.
The rash of Covid rule-breaking among our leadership class makes me wonder if Americans, at least those in our leadership class, still believe in that standard. (It was, to be sure, never entirely true, but it was, historically, more true in the US than in most countries). Consider a few instances. Deborah Birx, one of our national health leaders in defeating the Corona virus, was guilty “of breaking her own travel guidance.” In that, she was not doing anything that California Governor Gavin Newsom,New York Governor Andrew Cuomo, and many others haven’t done. Perhaps the image of New York City Mayor Bill De Blasio and his wife dancing in Times Square on New Year’s Eve, while just about everyone else in the city was stuck inside is hard to top as an example of this phenomenon.
Dr. Birx’s excuse for breaking the rules that she promoted is illuminating. As the New York Post notes, “her parents were so down in the dumps, they ‘stopped eating and drinking.’” “’My daughter hasn’t left that house in 10 months, my parents have been isolated for 10 months. They’ve become deeply depressed,’ Birx said of the need to “recover from the trauma of the last 10 months.’” As the story points out, that “justification [was] ripped by people who said it was her coronavirus restrictions that prevented them from seeing their own dying loved ones.”
What gives? Dr. Brix is an expert. It’s not a big leap to conclude that she thinks she knows better than others how to navigate around the rules in a way that would still mean that there’s little chance of exposure. Even so, a more thoughtful bureaucrat would understand that in a democratic nation there cannot be one standard for leaders and another for other citizens. To uphold the standard it must apply to oneself.
And the others? Hypocrisy, like sin, is as old as Adam. Even so, one wonders why politicians are so cavalier about following their own standards. Gavin Newsom is no scientist. He doesn’t even play one on TV. But he and, presumably the others who attended the infamous dinner at The French Laundry, think highly of themselves. They’re educated, and therefore are capable of making prudent judgments about when it might be reasonable to bend or even ignore the regular rules of conduct. After all, no one, it seems, actually got sick at the French Laundry dinner. At least I have not read of any cases. Perhaps there was one or two. One hopes the other cases of rule breaking had the same result. It is, however, true that several politicians have gotten Covid. But it is not clear what percent of those cases are due to hypocritical rule breaking.
The question is why aren’t we common citizens equally entitled to make such judgment calls. There is a technical term for a regime in which the ruling class has one set of rules applying to it, and the common residents (“citizens” is the wrong word in this context) have to live by another set of rules because they, per the ruling class, cannot be trusted to abide those same rules with success. That term is “aristocracy.” It is what we Americans rejected in the founding era. The great struggles for racial equality were struggles to make US practice more in line with the US ideal.
That’s what is so concerning and revealing about Dr. Fauci’s “noble” lies. Early in the pandemic, he lied about the efficacy of masks, downplaying their importance. Why? “”[W]e were concerned the public health community, and many people were saying this, were concerned that it was at a time when personal protective equipment, including the N95 masks and the surgical masks, were in very short supply.” And more recently he lied about herd immunity: “When polls said only about half of all Americans would take a vaccine, I was saying herd immunity would take 70 to 75 percent … Then, when newer surveys said 60 percent or more would take it, I thought, ‘I can nudge this up a bit.’ so I went to 80, 85.” In other words, he was managing the “truth” because he thinks his fellow Americans can’t handle the truth. He was trying to shape American behavior, a task that, one would think, would not be the job of a civil servant. Moreover, his chosen tactic was not rational persuasion. Instead, he chose to lie. And that’s a problem.
An equal America, and a democratic America is one in which the people can be trusted with the truth, and can be expected to be responsible about it. It would be more honorable, and it would do more honor to democracy for Fauci to have said in February and March something like “masks probably are helpful, [it was early, and the data were not yet conclusive] but they are in short supply, so please hold off and let our hospitals and health workers buy them for now until production increases.” Similarly, a more honest and straightforward leading by example would be to take the vaccine in public to show it’s safe, followed up with exhortations to take the vaccine because it’s necessary for normal life to resume. Lying to the public is the easy, and anti-democratic way out.
Fauci is a senior civil servant. He has been at or near the top of America’s public health bureaucracy since the AIDS epidemic of the 1980s. If he and others at that level think not simply that they are more expert than non-scientists, but if they also think that less educated Americans cannot be trusted to govern themselves in their day to day affairs, it suggests that our bureaucracy is turning into a post-modern form of robe nobility, with its own prerogatives and aristocratic elan. That Johns Hopkins University pulled a study showing that, thus far, Covid has not produced a net increase in mortality in the US, not because the data or conclusions were faulty, but rather because they worried that their fellow citizens might draw the wrong inferences from the data, suggests that as well.
This is not to say that democratic governments never have secrets, and never have to hide the truth in extreme circumstances. All governments have to do that sometimes, as Gabriel Shoenfeld’s fine Necessary Secrets points out. General Washington had so little powder at the Battle of Boston that he hid that truth from just about everyone. It was not a “noble lie” produced for the better management of the common soldiers. It was, on the contrary, a necessary lie to bluff the British, and keep them from attacking when they had the advantage.
I am reminded of a passage in Henry Adams’ novel, Democracy. The historian Nathan Gore (in some ways a proxy for the author), gives his political creed:
I believe in democracy. I accept it. I will faithfully serve and defend it. I believe in it because it appears to me the inevitable consequence of what has gone before it. Democracy asserts the fact that the masses are now raised to a higher intelligence than formerly. All our civilisation aims at this mark. We want to do what we can to help it. I myself want to see the result. I grant it is an experiment, but it is the only direction society can take that is worth its taking; the only conception of its duty large enough to satisfy its instincts; the only result that is worth an effort or a risk. Every other possible step is backward, and I do not care to repeat the past. I am glad to see society grapple with issues in which no one can afford to be neutral.
Note the line “democracy asserts the fact that the masses are now raised to a higher intelligence than formerly.” Formerly, in the Old World, the governing class assumed that the mass of men were too stupid to be trusted with serious power, or real decision-making authority. Similarly, they assumed that only the fear of the lash and of starvation could get most men to work. The American democracy, per Adams, was built upon a belief that the common man (we would say the common citizen, male and female), is capable of thinking. He needn’t be talked down to by governing officials.
American Progressivism, although it claims to be democratic, has always had a strong Tory streak. To be sure, in the place of the old aristocracy it places the modern expert with an academic credential, but the result is the same. At the end of the day, it presumes that we the people can never know enough to manage our affairs. Our freedom, in this Progressive dispensation is the freedom not of men who make their way in the world, taking on the responsibilities of providing food, shelter, health care, and the like for themselves and their families as much as they possibly can, but, instead, it is freedom of lifestyle liberalism—the post-modern version of bread and circuses. Don’t worry your pretty head with political judgments and public policy. Run along and enjoy your pleasures as they come.
It might be that today’s politics are so tense, and intense, because, thanks to Covid and the lockdowns, there’s no circus to be had, and the citizens are getting restless, as they begin to realize what is being taken away from us by our would-be betters.