Submitting to Government Doesn’t Mean Surrendering Constitutional Rights

Editor’s Note: This article originally appeared on RealClearReligion.

COVID-19 and the public health measures in response to it have transformed the religious life of the United States, and not for the better. Until recently, many religious authorities have acquiesced to government mandates without acknowledging their right to dissent; still others have adopted an overly deferential view of the biblical command to be subject to governing authorities. For their part, the laity have mostly remained silent where they should voice their concerns to their church leadership, expressing the time-honored American tendency to see pastors and elders as something like hired specialists who will mind the matters of the church while the rest of the faithful go about their lives. Christians owe respect to both their civil and ecclesiastical governments, but our deference to authority has gone too far.

Recent acts of protest and civil disobedience offer hope that at least some Christians understand the threat. These have varied widely: for months, many churches have continued to operate in defiance of orders against it. More recently, Sing It Louder USA has helped organize events where groups could come together to celebrate Christmas in song in defiance of restrictions. With increasing success, a number of churches and synagogues have launched lawsuits against the restrictions (two major examples include Capitol Hill Baptist and Agudath Israel of America), and the Catholic Diocese of Brooklyn’s suit resulted in the Supreme Court issuing an injunction against Governor Cuomo’s restrictions on religious services. But the majority of churches remain dutifully compliant with all state restrictions.

One of the most prominent and outspoken opponents of government restrictions on worship is John MacArthur’s Grace Community Church, which has remained open in spite of fines and threats of arrest. In July, the church published “Christ, not Caesar, Is Head of the Church,” which offered a scriptural defense of their uncompromising refusal to “acquiesce to a government-imposed moratorium on… weekly congregational worship or other regular corporate gatherings,” alongside an equally stark defense of deference to governing authorities in all other matters—in effect, they claim that apart from matters crucial to defending the liberty of the church, citizens do not have any rights to civil disobedience.

In framing their objections in these terms, MacArthur and many other critics still cede too much ground to the government—and they do so by not appreciating the difference in context between Imperial Rome and the modern day. The New Testament addressed subjects, not citizens, and this is a critical difference that is easy to miss. If John Calvin, writing in the context of early modern Europe, could hold governments accountable to “the general purpose” of the law, how much more can modern Americans have a legitimate expectation that the laws made by our representatives will be “good and just” in truth, not merely cloaked with facile claims about the public health risk.

First of all, Christians ought to realize that Romans 13 and 1 Peter 2 don’t require obedience to governmental authority in all cases whatsoever. Rather than counseling obedience to all “powers that be,” many Reformers argued that Romans 13 is better understood as freeing individual believers to resist what Calvin described as powers that “are not ordained,” that is, powers that are usurping the type of authority over individual conscience that belongs to God alone. This clearly applies in the most extreme instances of executive orders restricting religious activity in 2020, such as bans on corporate song, severe limits on the size of gatherings, or outright bans of in-person worship.

Calvin’s exposition of the proper relationship to civil authority goes even further: “all obligation to observe laws,” he wrote in the Institutes 4.10.5, “looks to the general purpose, but does not consist in the things enjoined.” In other words, while we have a general obligation to obey government because it is ordained by God, because the purpose of ordinances is our good, our specific duty depends on whether the government over us is “good and just.” The line here is very fine—a respect for the rule of law is necessary if rights are to be protected, but a respect for rights is necessary if the law is to fulfill its purpose in any meaningful way.

Second, and perhaps even more importantly because it applies more widely, nothing about Romans 13 prevents Christians in America from protecting their constitutional rights. In its original context, Romans describes the believers’ relationship to an absolute imperial power, not to a constitutionally limited one. Reformed Christians have long held that to neglect to defend one’s civil liberties is the equivalent of political suicide and just as verboten to believers.

Consider the example of Loyalty Vindicated, a 1698 pamphlet which condemns “the damn’d doctrines of passive obedience and nonresistance,” and those false preachers who had told the people “that we ought patiently to hold our protestant throats to be cut by the command of a popish king.” Writing to justify Jacob Leisler’s overthrow of the royal governor of the colony of New York almost a decade earlier, the author argues that the colonial government’s failure to protect its citizens’ liberties was tantamount to a failure to protect their lives. The rights of representation and assembly—of a voice in one’s own government—were not understood as merely civil rights in the 17th century, but rather as part of a suite of protections against arbitrary power. And this author—like most other Reformed thinkers in the period— saw arbitrary power as naturally unjust, ungodly, and most importantly unordained. Resistance to such governments was not only justifiable, it was a necessary measure of self-defense.

Leisler’s group in New York, as well as others similarly motivated in Long Island, Boston, and Virginia during the period were proactive in their response to threats to liberty. They did not wait until the governments under which they lived suspended their worship services to recognize the threat of tyranny.

The governments they opposed claimed, of course, that their actions were necessary and proper, and in fact, not a danger to the people at all. Likewise, the United States today is a signatory to the COVID-19 and Religious Minorities Pandemic Statement and official CDC guidelines recognize “a fundamental right to gather for worship”—yet in practice, policies adopted by the states in response to the pandemic have not only failed to protect religious and other liberties, they have often intentionally threatened them.

After months of “emergency powers” rhetoric, we have a right to expect that any new public health measures will be laws passed by duly elected representatives, and not simply imposed by experts and executives as if we were subjects of imperial authority.

Governments around the globe have imposed tighter restrictions on worship services than other types of public gatherings, and have, in some cases attempted to interfere with religious observances directly. California’s guidelines, for example, state that places of worship “must…discontinue indoor singing and chanting activities,” despite the fact that such activities are often central to the actual exercise of any given religion.

Many of the experts religious and political authorities consult, like Italian professor Massimo Marchiori, argue not from the perspective of fundamental rights, but entirely from that of safety: “It’s our humanity that is actually bringing us toward the virus… You have to take away a bit of humanity, to become a bit antisocial, to protect humanity.” When reasoning such as this influences decisionmakers, life itself becomes an idol and the foundation for liberty collapses.

It is, perhaps, excusable that secular leaders are swayed by such arguments—they have, as it were, no official stake in the notion of transcendence, or the idea that life is given to human beings not simply for existence but for the purpose of reflecting and glorifying the Creator. Yet few religious leaders or lay persons have offered much in the way of dissent from this line of thought either. Despite the few examples of dissent we note above, the vast majority of American worshippers from all backgrounds have attempted to accommodate their religious practice to the state orders. A report released by an ecumenical group convened by the Chandler School of Theology is indicative of the ways many have even gone above and beyond the government’s guidelines, calling for the creative use of silence in worship, abbreviated preaching, and the abandonment of traditional liturgies. Likewise, the Central Conference of American Rabbis’ statement on the acceptability of virtual minyan in times of ‘emergency’ (in contradiction of their earlier rejection of such technological presence) is a display of risk-aversion that suggests temporal rather than spiritual priorities.

There is another way. Drawing on the heritage of Reformed resistance theory, American Christians can and should cast a wary eye on public policies imposed by executive fiat. After months of “emergency powers” rhetoric, we have a right to expect that any new public health measures will be laws passed by duly elected representatives, and not simply imposed by experts and executives as if we were subjects of imperial authority. This would be an important first step towards reclaiming our rights—but even then, all policies rooted in the rejection of transcendence ought to be publicly resisted. Both religious leaders and the laity ought to make an even stronger stand in favor not only of religious liberty but of human flourishing and undertake a renewed assessment of COVID’s real risks to our faith and freedom alongside the virus’ threat to our health.