Intelligent Design

Federal Judge: “Complying With the Constitution is Not Optional — Even in a Pandemic”

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Yesterday a United States District Court entered an order barring the enforcement of a mayor’s order banning a “drive in” church service.

Here are the first four paragraphs of the court’s opinion:

On Holy Thursday, an American mayor criminalized the communal celebration of Easter.

That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.

The Mayor’s decision is stunning.

And it is, “beyond all reason,” unconstitutional.

The court’s reasoning is simple: It is one thing to ban mass person-to-person gatherings. But drive in liquor stores are open for business. Drive in restaurants are open for business. Ice cream shops are open for business. If you are going to let people buy liquor, hamburgers, and ice cream from their cars, on what basis can you bar them from exercising their fundamental right to worship God — on Easter of all days — from their cars?

The court sum it up on page 13 of its opinion: “if beer is “essential,” so is Easter.”

Mayor Greg Fischer’s picture is below. I call on the people of Louisville to remove him from office.

The mayor’s decision is crazy, but sadly I have seen even churches self-ban in a similar fashion. I know of a group of elderly members of a south Denver metro mega-church who proposed meeting in the church parking lot in their cars with the windows rolled up.

The pastor of that church shut them down, and told them they could not drive their cars onto the church parking lot for that purpose. Stunningly, a pastor issued an order that, had it been issued by a mayor, would be blatantly unconstitutional.

Finally, the opinion by the judge in the case goes beyond merely the legal. It is astonishing in its beauty; it is not a legal opinion as much as a work of great literature. I hereby nominate Judge Justin R. Walker to fill the next vacancy on the United States Supreme Court.

31 Replies to “Federal Judge: “Complying With the Constitution is Not Optional — Even in a Pandemic”

  1. 1
    Barry Arrington says:

    Do not misread the Court’s opinion. The same federal judge says he would uphold a ban on mass person-to-person gatherings so long as churches were not singled out. This opinion is limited in its focus on drive-in gatherings.

    A more proper analogy would be if the City allowed people to meeting in mass person-to-person gatherings in movie theaters and sports arenas because such meetings are “essential,” but singled out churches and said only they could not meet in person-to-person gatherings.

  2. 2
    ET says:

    The ban on cars was way over the top.

  3. 3
    Barry Arrington says:

    ET, Gary Newman would have agreed. After all, “here in my car . . .”

  4. 4
    polistra says:

    Yup. Banning mass gatherings has always been part of REAL public health rules, which have been tested and improved SCIENTIFICALLY by centuries of experiment. In the polio epidemic, swimming pools were closed, but nothing else.

    It’s all about dosage. Preventing a sudden big dose is good. Preventing gradual “acquaintance” with the virus is lethally bad.

    What we have now is a War On Immunity, not a War on Viruses.

  5. 5
    Seversky says:

    It seems to me the Bible has no problem with private observances.

    Verse:

    Matthew 6:5-6

    5 And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.
    6 But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

  6. 6
    Barry Arrington says:

    Seversky:

    It seems to me the Bible has no problem with private observances.

    Yes, the Bible has no problem with private observances, and if the judge had been interpreting the Bible you might have a point. You don’t actually have a point, because the Bible commands — not just suggests — the assembly of the church. Still, if the judge were interpreting and applying the Bible, your error might be just egregiously bad Biblical exegesis.

    But the judge was not interpreting or applying the Bible. He was interpreting and applying the First Amendment to Constitution of the United States of America. Therefore, your error lies not merely in a flippant and muddleheaded Biblical interpretation. That you would bring up the Bible in the context of a judge doing his best to stop a city from stomping all over its citizens’ constitutional rights is utterly mystifying. Tell me this Sev. Are you in favor of the government stomping on people’s rights generally? Or do you attempt to make apologies for the government only when Christian’s rights are being abused?

  7. 7
    Ed George says:

    As long as people stayed within their cars, and there was no car pooling, I don’t see how this violated any anti-assembly restrictions,, regardless of the constitution.

  8. 8
    Barry Arrington says:

    Ed George:

    I don’t see how this violated any anti-assembly restrictions

    You don’t, apparently, keep up with the news. The mayor told the members of this church that if they showed up in their cars, they would be ticketed and fined, their license plate numbers would be taken down, and they could expect a visit from the health department which might quarantine them for 14 days.

  9. 9
    kairosfocus says:

    Viewpoint discrimination.

  10. 10

    This governmental behavior in these times has been a major concern of mine – what comes after?

    https://ayearningforpublius.wordpress.com/2020/04/08/corona-the-aftermath-update-1/

  11. 11
    bornagain77 says:

    By the way, Happy Easter. He Lives!

    Nicole C. Mullen – My Redeemer Lives – Video
    https://www.youtube.com/watch?v=6QvX4CwSmwY

  12. 12
    Seversky says:

    Barry Arrington @ 6

    But the judge was not interpreting or applying the Bible. He was interpreting and applying the First Amendment to Constitution of the United States of America. Therefore, your error lies not merely in a flippant and muddleheaded Biblical interpretation. That you would bring up the Bible in the context of a judge doing his best to stop a city from stomping all over its citizens’ constitutional rights is utterly mystifying. Tell me this Sev. Are you in favor of the government stomping on people’s rights generally? Or do you attempt to make apologies for the government only when Christian’s rights are being abused?

    I call myself a Millian (from John Stuart Mill) libertarian. That means I endorse the principles of individual rights and freedoms he sets out in On Liberty. At its simplest, he argues that individual members of a free society should be free to do whatever they like. The boundary to the exercise of that freedom is where it infringes on the rights, freedoms and well-being of other members of society.

    That means I would certainly defend the right to the free exercise of religion and the right to free association.

    However, if some extremist cult were found to have been killing children, it would be no defense to argue that human sacrifice was one of the tenets of their faith.

    By the same token, suppose we have a church which insists on holding services where its congregants gathering together in close physical proximity in the midst of a pandemic of a highly infectious disease. If those services are likely to spread the disease then it is not unreasonable for society to request that the church suspend them for the duration of the emergency, is it?

    The mayor was certainly unnecessarily heavy-handed in his approach and I agree with the judge’s ruling but, unfortunately, it seems that “social distancing” is the most effective measure we have for slowing the spread of this disease. Religious beliefs don’t alter that and I’m sure the vast majority of Christians would not want to do anything that would harm their fellow citizens.

  13. 13
    Barry Arrington says:

    Sev,

    By the same token, suppose we have a church which insists on holding services where its congregants gathering together in close physical proximity in the midst of a pandemic of a highly infectious disease.

    I was at the deposition of a crusty old miner many years ago. The lawyer taking the deposition asked the miner a stupid hypothetical question, and I will never forget the miner’s reply: “If a squirrel’s butt was square, he would poop bricks.” (True story)

    I cleaned the quotation up some, but it applies to your hypothetical. The scenario you raised has nothing to do with what was happening. I interpret it as merely an attempt to make your first comment seem less asinine. The attempt failed.

    The mayor was certainly unnecessarily heavy-handed in his approach and I agree with the judge’s ruling

    It warms my heart to know that you are no longer cheerleading for the blatant violation of constitutional rights. I wish you had never forayed into that to begin with.

    but, unfortunately, it seems that “social distancing” is the most effective measure we have for slowing the spread of this disease.

    A totally irrelevant observation, since these church members were in complete compliance with CDC’s social distancing guidelines.

    Religious beliefs don’t alter that

    No one said they did. You just can’t seem to help yourself can you?

    and I’m sure the vast majority of Christians would not want to do anything that would harm their fellow citizens.

    Are you implying that these Christians were doing anything whatsoever that would harm their fellow citizens? I’m torn. I’m trying to decide if that comment is more stupid, more irrelevant, or more vicious. It is certainly a toxic mixture of all three; I just can’t decide which one predominates. Sev, first rule of being in a deep deep hole of your own making: Stop digging.

  14. 14
    ET says:

    Methinks seversky is either high or just stupid.

  15. 15
    BobRyan says:

    There is nothing in the Constitution that enables any government to violate any rights for any reason. They wrote it when smallpox was a common health concern and there was no smallpox clause. You can have security or liberty, but cannot have both. If anyone wants the heavy hand of government to control their lives, they are more than free to pick form any number of countries already doing so.

  16. 16
    Bob O'H says:

    Barry – OT, but have you heard anything from Denyse O’Leary recently? She hasn’t been posting here, so I hope she’s OK.

  17. 17
    kairosfocus says:

    BO’H: she is okay. In due course she will be more active. Similarly, I expect GP will be busy over in Italy. Here we just went into a seven day total lockdown. KF

  18. 18
    Truthfreedom says:

    @17 Kairosfocus:
    Thank you for sharing. I miss Denyse. (And Silver Asiatic!). Best wishes to Gpuccio.

  19. 19
    Bob O'H says:

    kf – thanks for the update. Best wishes to her and GP, and everyone else caught up in this (we’ve been lucky in Norway, because the country closed down early).

  20. 20
    ET says:

    Earth to BobRyan- You are sadly mistaken: Police powers during a pandemic

  21. 21
    BobRyan says:

    ET @ 20

    The Supremacy Clause means anything in the US Constitution cannot be violated by any state. All states must abide by the US Constitution. Just because states are violating the Constitution right now, does not mean they are constitutionally allowed to do anything of the sort. What’s happening is a serious breech of liberty in the name of safety.

  22. 22
    BobRyan says:

    Everything that’s happening is not based on a pandemic, but a projected pandemic based on China telling the truth. They are the only ones showing a high death rate compared to those who test positive. China lies about everything and will not allow any independent verification of their claims. COVID-19 is not the Spanish flue and never has been.
    The US Supreme Court has only ruled on one case of violation of liberties, which was a primary election. The wording was very clear that no state can violate rights guaranteed by the Constitution for any reason.

  23. 23
    ET says:

    LoL! So BobRyan is an infectious disease expert now. 🙄

    Covid-19 is more contagious than the Spanish flu. The Supreme Court also set a precedent with respect to pandemics- and regardless of what BobRyan says, this is a pandemic.

    BobRyan thinks that the lies China has told has killed thousands of people in the USA and Italy. Over 100,000 dead even given the precautions countries are following.

    Clearly BobRyan did not read the article that I linked to. Willful ignorance is not going to stop the spread of covid-19

  24. 24
  25. 25
    Ed George says:

    On a related note, I read a piece about the pastor who held a service with around 1300 congregants packed in the church. At the same time, the pastor and his servants on the stage made sure that they kept several meters apart. If this is true, this action is deplorable. Regardless, holding the service is criminally negligent. For the safety of his parishioners and those they come in contact with, this pastor should be confined until after this crisis is over. He can argue his constitutional rights later.

  26. 26
    ET says:

    Evidence, Ed. I know it isn’t important to you. But it is for thinking people

  27. 27
    BobRyan says:

    ET

    I guess you believe none of the Constitution matters under any given emergency, or projected emergency. The Supreme Court ruled the right to vote cannot be stopped. Maybe you should read the 10th Amendment. Pay close attention to the part where it says anything not in the Constitution. The Supremacy Clause does not vanish simply because you want it to.

    Over 100,000 dead? Influenza kills 500,000 every year on average. Should we be forced into hiding every flu season in the name of safety? The models are based on China telling the truth, which they never do. Willful ignorance and fear has caused suicides to increase and increases in domestic abuse.

    Where is the link for the virologists saying this is the next Spanish flu? They are the ones who specialize in viruses, yet strangely absent from the reports.

  28. 28
    BobRyan says:

    Ed George @ 25

    It would be criminal to do anything about it. The 1st Amendment states the government cannot prohibit the free exercise of religion. You may view the Constitution as a negative, which limits what government can do. I view it as a positive to prevent government from abusing power.

  29. 29
    BobRyan says:

    As I have pointed out many times, the inner-cities are not distancing themselves. Apartment complexes have narrow stairs and people have to leave to do laundry and buy food. They are going to come into contact with people on a regular basis. The gangs are still continuing to do what they have always done. There is no such thing as a drive-by shooting with only 1 person in the car. Dealers and prostitutes are still out on the corners making money. Why are we not seeing increases in the inner-cities?

  30. 30
    BobRyan says:

    Everything is based on China telling the truth. Why are they the only ones who show a death rate to be 10 times that of influenza, which is exactly what they showed with COVID-2. COVID-2 and COVID-19 are from the same family. COVID-2 was SARS, which makes this SARS 2.
    With the numbers continuing to drop from countries whose data can be trusted, we are seeing less people die from COVID than influenza. Social distancing is not happening in the inner-cities, which is where the greatest populations live.
    Is China telling the truth about COVID-19? How does the 7th largest city in China not have millions infected? How did their international airport not spread it to Beijing and every other city within China? Has China allowed any independent verification of any of their claims?
    Remove China from the models and you get something less lethal than influenza.

  31. 31
    BobRyan says:

    Here’s an open question which no one has answered. When did COVID-19 start? Not when was it noticed, but when was the point of origin? Discovery of clusters in Wuhan does not guarantee a starting point.

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