A Time to Disobey

There are two ways to think about the current shut-down and its effect on religious liberty. One way views the matter through the lens of equality, the other through the lens of liberty. As a matter of equality, the current rubric is the Supreme Court’s decision in Employment Division v. Smith that justifies government’s safe haven of imposing burdens by way of “neutral and generally applicable laws.” Stay truly neutral, the Court tells local officials, and you may burden religion to the point of extinction. During the current pandemic, it has been rather obvious that many local governments have not acted neutrally or imposed truly generally applicable laws and regulations, and the cases circulating in federal court will likely succeed. Or, most likely, they will result in local governments backing down as the country slowly reopens.

One of the more striking examples is Minnesota Governor Dan Walz’s edict recently allowing “non-essential” businesses, including casinos, to re-open while continuing the restrictions he placed on religious institutions. That has prompted both the Minnesota Catholic Conference and The Lutheran Church-Missouri Synod in Minnesota to file suit against the governor, demanding that the ban on religious worship be lifted. At the same time, the Bishop of Minneapolis has told the Governor that his churches will be open for services in defiance of his order. The legal prohibitions placed on religious worship might be causing Christians to see how reduced their condition is not only within the Smith framework but in a secularized America.

Requiring truly equal treatment is helpful for minorities, religious or otherwise. And Christians now increasingly find themselves in this class. But even-handed suppression of liberty remains a suppression of liberty nonetheless. One’s liberty, of course, has limits. But the American tradition of constitutional liberty demands something more than even-handed oppression. Freedom is hazardous. Liberty does not exist in a zero-risk tolerance state. If a presumed though unquantified risk of harm suffices to extinguish liberty in one area, it will in another. And there are many harms and many risks in life. You may think the current pandemic justifies deference to regulations severely limiting (and sometimes extinguishing) previously permitted activities. Fine. But when this pandemic finally leaves the stage, waiting in the wings are others with their own list of harms that they believe justify severely limiting or extinguishing previously permitted activities (desired restrictions on speech being first in line). On what basis will you resist those efforts?

The American tradition of constitutional liberty does not ignore the existence of harm, or the possibility that some risks cannot be tolerated.  It does, however, impose an obligation on government to justify its abridgment of liberty. What lawyers and judges call “strict scrutiny,” involves placing the burden on the government to explain why the need for regulation is compelling and how the proposed regulation advances that compelling interest in a manner that is no more burdensome than necessary. Absent this obligation, government officials may extinguish liberty for no discernable reason whatsoever beyond a desire to increase political popularity with key constituencies. Or as might be evident in Minnesota, the governor’s indifference towards religious worship: Who really cares when they reopen?

One would hope courts would enforce constitutional text regardless of current pandemics or religious demographics or personal judgment about the value of religion.

This is the real problem with the current “equality” approach of the Supreme Court in matters involving religious liberty. Although never justified in terms of text or original understanding, the Smith approach at least held out the possibility of minimal burdens on religion so long as society remained sufficiently religious. Under these conditions, “neutral” laws severely burdening religious exercise will prompt significant political opposition and hopefully result in more narrowly tailored laws. Unfortunately, when religiously motivated activity is primarily the domain of minorities, political “herd immunity” disappears.

No doubt, determining when conditions do or do not justify imposing a burden on liberty is a task that should give pause to the wisest of justices. But so too is the task of determining when race-based admission programs are justified, or when states have justified their definition of marriage. If justices are justified in engaging in such calculations, it is because they are obligated to do so by the text of the Constitution. Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom? I am confident that it does, at least to the degree that it justifies invalidating laws that impose undue burdens on a women’s right to obtain an abortion prior to viability. To claim otherwise involves a value judgment, not an interpretation of text.

But value judgments are everywhere in American constitutional law. If we as a society value abortion more than religious freedom, who are the courts to demand we do otherwise? One would hope courts would enforce constitutional text regardless of current pandemics or religious demographics or personal judgment about the value of religion. In fact, the current Supreme Court is divided both on the meaning of the text and the value of religiously motivated activity and speech. For the moment, therefore, the ball is in the court of religious believers. It seems a particularly opportune moment for believers to demand more than formal equality and refuse to accept the possibility of government-imposed extinction. Put another way, I think this is an opportune moment for civil disobedience.

The Archdiocese of St. Paul and Minneapolis has taken the first (overt) step by disobeying the governor’s edict and simply moving forward with carefully constructed plans for resuming public worship. Other churches and religious groups have already made similar moves. Are some of these moves dangerous to the point of justifying fines or imprisonment? Perhaps. Let the government prosecute, let the believers submit to the prosecution, and let courts do their job of requiring government officials justify their abridgments of our very textual constitutional liberties.

Reader Discussion

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on May 22, 2020 at 07:59:06 am

It is ironic that the Chinese Communist Party, which ruthlessly suppresses religious minorities (indeed, operates a gulag just for them) and forcefully denies the freedom of worship, would export to Blue States in the U.S. both its deadly virus and its toxic religious policies. Democrats since long before the days of Engel vs Vitale have circumspectly concealed their widespread personal animosity toward and subtle efforts at legal repression of both the informal establishment and the public exercise of religion. The Wuhan China Virus has exposed this particular political subterfuge of the Democrats and their Party in America.

Neutrality in a secular world hostile to religion is but verbal sarcasm. Equality which puts worship in a public position inferior to liquor consumption is laughable black humor, not law.

It would seem past time not only for the faithful to screw up their courage and deploy the art of civil disobedience ( the courageous display of which not long ago raised Negro civil rights out of the ash heap of official bigotry) but also for the lawyer Knights of Faith to take to the courts and to the press and demand in law and public opinion the "preferred position" in the hierarchy of constitutional liberties which the Supreme Court once held was the just due of a "discrete and insular minority," which Christians in our society today most certainly are but which deference they seem so seldom to receive at the hands of Democrats, Blue State laws and those who enforce them so unconscionably.

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on May 22, 2020 at 12:08:59 pm

It is extremely important to note that “transparency about the nature of the virus will be essential to overcoming this crisis”.



“Understanding transmission of the virus is key to its containment and future prevention,” says David Veesler


We all have a vested interest in getting information from China in regards to what pathogens were being studied in the Wuhan Bio Laboratory and whether or not any of these pathogens were manipulated for good, or for ill.

Understanding the “Distant sequence similarity between hepcidin and the novel coronavirus spike glycoprotein: a potential hint at the possibility of local iron dysregulation in COVID-19”, as well as the Furin “cleavage site”, is crucial in order to reverse the ability of the pathogen’s ability to attach to the host and cause infection.

One would think a Global Court Of Law would view this to be of utmost concern if it really desires to save lives, but then who knows anymore what would be the main concern of the atheist materialist overpopulation alarmists globalists these days, especially if it is true that China, a Nation that promotes the heinous act of abortion and euthanasia through coercion, “is positioned to lead on climate change as the U.S. rolls back its policies”.


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on May 23, 2020 at 14:29:28 pm

A couple of corrections to the article are needed. First, Governor Walz's first name is TIM not Dan. Second, there is no "Bishop of Minneapolis" and no "diocese of Minnesota". The bishop in question is Archbishop Bernard Hebda, JDk JCD (both a civil and a canon law lawyer) of St. Paul and Minneapolis. There are five (5) other Catholic diocese in the state, and the bishops and administrator all supported the Archbishop. Otherwise, a nice analysis.

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Joseph Fitzharris
on May 22, 2020 at 12:45:13 pm

Let us hope that this comment somehow manages to elude our "moderate" moderator unlike the last comment. which simply cited another commentor AND agreed with him.

I am somewhat less sanguine than others on the prospects for civil disobedience as well as outcomes comparable to those cited by Mr Lash, i.e., civil rights actions of the 1960's. (BTW: This is not intended as a critique of Mr Lash, for whom I have the highest regard).

As Lash avers, religious liberty will, and has encounter(ed) considerable difficulty when situated in a highly secular, if not outright hostile environment.
So too, will the proposed (and I think proper) civil disobedience fail as it must be examined in light of the present distaste for non-approved government and elite opinion. Witness the charges, slanders actually, strewn across the media landscape against the few thousands who, to date, have been the only citizens to assemble and protest against the overbearing, ill considered and delusional policy pronouncements of our Progressive Potentates.
"fascists, Racists and Populists" - one and all!
Is it not fair to say that the environment is not conducive to the exercise of the right of assembly, association and free speech?
Is it not fair to say that both the media and elected officials are hostile to such expressions and are both dismissive and disdainful of any countering opinion?
Is it not appropriate to note that our Progressive, albeit elected Potentates are able and willing to deploy state power against those who object as is evidenced by the Governor of Oregon unleashing the States Child Protective Services against a family who dared to open their business in order to escape bankruptcy?
One could cite hundreds of such examples.
How long can the common citizen resist? when recourse to the "wise jurists" that Lash cites is no more likely to yield a favorable outcome than betting "red" on a roulette wheel? Michigan district Judge upheld Gov Whitmer orders in spite of the Legislature unwillingness to "authorize" such orders.
One asks, "Why does the Legislature not simply repeal the Legislation originally authorizing these actions? Given that the Michigan legislature is controlled by GOP, one may not unreasonably conclude that liberty itself subsists in a hostile environment? and that the Legislative is in fact part of the problem.
What else may the Legislative propose that will further restrict liberty?
No, boyos, the climate is not supportive of such "disobedience"
Given that lack of a supporting milieu, regrettably it may be that the only disobedience that will be heralded to work may be somewhat more sanguine than the civil tone advanced by many.

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on May 22, 2020 at 14:43:32 pm

Gabe may be right that now is not then, that today is unlike the period 1960-64, that now public opinion and media are so united in hostility to Christianity that massive civil disobedience could not succeed. Yet, then, at the beginning, public opinion in the South was no more hostile toward African-Americans than it is now toward Christians in Blue States.

However, two historical differences stand out and argue against civil disobedience. Then, the national media was sympathetic to the protesters; today it is hostile toward them and can hide its cowardly hostility behind the shield of feigned concern for public safety. Secondly, then the protesters were physically abused while the world was watching. Today the mistreatment of protesters consists (to date) of psychological, not physical violence, abuse which is not captured on video.

But there is a major, dispositive factor present today that did not exist then in the states of conflict, a powerful local political constituency that may well support the Blue State protesters. African-Americans remain strong among the ranks of the Christian faithful. If they were to join the civil disobedience fight the Wuhan Virus War for Religious Liberty would be won in a New York minute (even in New York.) No Blue State governor, mayor or police chief is going to shut down a Black religious service. To do so would be not only to resurrect Jim Crow but to attack the heart of their political base and to lay themselves vulnerable to that most hideous of Democrat Party slurs, "racist."

How about some "high-tech lynching" lingo to describe Blue State use of debunked computer models as grounds for barring African-Americans from entering the church doors (shades of Little Rock) and praying to the God that delivered them from slavery?

To African-American Christians worshipping at home today, I would say (quoting a great American,) "What have you got to lose?"

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on May 22, 2020 at 15:13:00 pm

Paladin is correct.
Should religiously inclined blacks join the protests than all of the Progressive slanders and machinations again the present protesters will dissipate in Comrade DeBlasio's New York minute.
Still what is needed is for not just black religious types to rise but for ALL Americans to finally proclaim:
"Thank God, almighty, I am [finally demanding that I be] free at last."

Failing that, the only other viable, albeit regrettable action may be one of "heraldic" sanguinity.

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Image of gabe
on May 23, 2020 at 12:01:22 pm

Good essay, but two things to note -- the governor of Minnesota is Tim Walz and Archbishop Bernard Hebda sits in St. Paul, not Minneapolis. It's the Archdiocese of St. Paul and Minneapolis.

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Mr. D
on May 24, 2020 at 07:21:35 am


Why is it that the U.S. is “bearing the brutal brunt of the pandemic”.

And why does no one seem to be concerned that no one at WHO or the CDC is concerned that something else may be contributing to the fact that the U.S. is “bearing the brutal brunt of the pandemic”?


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Image of Nancy
on May 23, 2020 at 01:01:29 am

[…] Time – John D. Davidson Live Perpetual Adoration Of The Blessed Sacrament – EWTN Poland A Time to Disobey – Kurt T. Lash at Law & Liberty Opening Salvos in Pope Francis’s Financial ‘Reform […]

on May 23, 2020 at 09:50:49 am

[…] by Kurt T. Lash – Law & Liberty […]

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