Cuomo, COVID and the Notorious ACB

Cuomo, COVID and the Notorious ACB

Yesterday evening, the Supreme Court (“SCOTUS”) barred restrictions on religious services in New York that Gov. Cuomo had imposed to combat COVID-19. The vote was 5-4. If the late Justice Ginsburg were on the bench instead of Amy Barrett, it would have gone the other way.

This is not a permanent decision. Justice Kavanaugh explains:

Importantly, the Court’s orders today are not final decisions on the merits. Instead, the Court simply grants temporary injunctive relief until the Court of Appeals in December, and then this Court as appropriate, can more fully consider the merits.

Kavanaugh concurring opinion, p. 1.

The Roman Catholic Diocese of Brooklyn, along with some Orthodox Jewish synagogues, asked for injunctive relief from Gov. Cuomo’s order that “imposes severe restrictions on attendance at religious services in areas classified as ‘red’ or ‘orange; zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25,” (Decision, p. 1).

It has always been tricky to weigh religious freedom and the State’s legitimate authority to protect public health. In a recent article, I explained my own thoughts on this matter (for now, anyway) in my own context in WA State. This SCOTUS decision is very helpful because it crystallizes much of what I’ve been thinking for some time.

Strict neutrality. If you don’t treat religious institutions with strict neutrality, then a State will likely have a problem. You can’t single churches out for harsher treatment than other organizations:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities

Decision, p. 3.

What is the rhyme and reason for these determinations of “essential” vs. “non-essential?” I’m sure there is an alleged reason, and I’m also certain a binder exists even now in the State’s emergency management office that explains everything. I also know Gov. Cuomo made a moral distinction, a value judgement, when he drew those lines. A garage is more important to society than a church. This is not neutrality.

Irreparable harm. The decision notes:

There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. ‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion).

Decision, p. 5.

This is a point many Governors don’t understand and many Americans don’t understand. Religion is quaint, cute, mysterious and ultimately annoying to so many people today. They don’t understand it, so they don’t value it, and thus marijuana dispensaries are “essential” and houses of worship are not.

Public interest. Here, we have an especially compelling point.

But even in a pandemic,the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.

Decision, pp. 5-6

Justice Gorsuch issued a concurring opinion in which his tone was sharp and he appeared more than a bit … miffed. He proclaims:

At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pickup another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

Gorsuch concurring opinion, p. 2.

A liquor store and a wine shop are not analogous to a worship service, but I take his point. It’s a shame Gorsuch wasn’t similarly outraged in Bostock v. Clayton County. He continues:

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

Ibid. Emphasis added.

Seemingly on a roll, Gorsuch now scales the heights of righteous indignation and observes:

In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. In far too many places, for far too long, our first freedom has fallen on deaf ears.

Ibid, pp. 2-3.

We cannot defer to Governor’s executive orders indefinitely, Gorsuch argues.

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical

Ibid, p. 3.

Justice Kavanaugh echoes his colleague:

In red and orange zones, houses of worship must adhere to numerical caps of 10 and 25 people, respectively, but those caps do not apply to some secular buildings in the same neighborhoods.In a red zone, for example, a church or synagogue must ad-here to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction. In an orange zone, the discrimination against religion is even starker: Essential businesses and many non-essential businesses are subject to no attendance caps at all.

Kavanaugh concurring opinion, p. 2.

However, Kavanaugh goes further and insists States must explain why houses of worship are “excluded from that favored class” of businesses which can operate with fewer restrictions:

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions.

Ibid.

To my knowledge, this point has not yet come up in a meaningful way in a COVID-19 context. This flips the entire script from “may I please stay open?” to “prove to me why I can’t stay open!” as follows:

  • Wrong: You can’t just say, “gyms are closed completely, while churches can stay open subject to restrictions, so there is no discrimination.” This isn’t good enough.
  • Right: Instead, you must say, “I know Walmart is open and the parking lot is always packed to the gills, but churches can’t do that because … (insert reasoning here).”

Thus, Kavanaugh tightens the screws:

Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses

Ibid, p. 3.

COVID is certainly dangerous, Kavanaugh admits. But the great danger, he warns, is if the judiciary continues to defer to the State. This cannot be:

But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised. In light of the devastating pandemic, I do not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake.

Ibid, p. 3.

However, Justices Breyer, Sotomayor and Kagan disagree. They wish to continue to defer.

Thus, according to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces. The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.

Breyer dissent, p. 4.

I suspect (but, of course, cannot prove) these Justices simply do not appreciate the importance of religious worship and are therefore incapable of adequately protecting it. I’m unmoved by stories about how Joe Biden (et al) have “deep Christian faith.” The Christian faith isn’t play-dough to be molded and appropriated by the owner. It’s objective. It has content. It has meaning. The ideologies of Joe Biden and Kamala Harris (and, for that matter, President Trump) largely do not comport with the Christian faith and message.

The dissenting justices continue:

We have previously recognized that courts must grant elected officials “broad” discretion when they “undertake to act in areas fraught with medical and scientific uncertainties.” That is because the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.”

Breyer dissent, p. 5.

Sotomayor, in her own dissent, writes:

I see no justification for the Court’s change of heart, and I fear that granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn (Diocese) will only exacerbate the Nation’s suffering

Sotomayor dissent, p. 1.

To her, the nature of religious activities make it more dangerous.

But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time

Ibid, p. 2.

Sotomayor epitomizes this deference to public health authorities. No sane person would deny these individuals have expertise. The dispute is over whether public health concerns can trump religious freedom, and if so for how long. Can, as Gorsuch quipped, the Constitution actually take a sabbatical? Sotomayor apparently believes it can:

Unlike religious services, which “have every one of th[ose] risk factors,” bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. Id., at 7 (“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

Sotomayor dissent, p. 3.

I wonder, then, why States do not issue edicts forbidding potlucks at Baptist churches because, according to the Centers for Disease Control and Prevention, 655,381 Americans died from heart disease in 2018. One could marshal precisely the same public interest arguments for abolishing potlucks and communal meals at all houses of worship. Of course, that’s absurd. Why is COVID different, given the COVID death rate in 2020 (262,158) is only approximately 40% that of heart disease?

I can only see this continued judicial deference to the State as a sophisticated extension of the “stay safe at all costs” mindset that is so common, today. Sotomayor concludes thus:

Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives

Sotomayor dissent, p. 5.

Predictably, Gov. Cuomo dismissed this injunction as a partisan political move by SCOTUS. However, the decision signals how the Court will likely rule on similar cases that come its way, and lower courts may well use these same arguments to rule in favor of houses of worship.

Legal experts said that despite the governor’s assertion that the decision was limited to parishes and other houses of worship in Brooklyn, the court’s ruling could be used to challenge and overturn other restrictions elsewhere. “The decision is applicable to people in similar situations,” said Norman Siegel, a constitutional lawyer and former leader of the New York Civil Liberties Union. “It’s applicable to any synagogue, any church, to any mosque, to any religious setting.”

Jesse McKinley and Liam Stack, “Cuomo Attacks Supreme Court’s Emboldened Majority Over Virus Ruling,” in New York Times (26 November 2020). Retrieved from https://nyti.ms/378Wmwp.

In its amicus brief to SCOTUS, the Southern Baptist Ethics and Religious Liberty Commission asked for clear guidance on how lower courts should weigh public interest and the free exercise of religion:

This Court’s guidance is needed, and, in its absence, the lower courts are left grasping for whatever they can find. Indeed, a search of Westlaw reveals that the concurring opinion in South Bay (declining to grant the requested injunction) has been cited 118 times in the past five-and-a-half months, leading to a hodge-podge of results across the United States and uncertainty as to what standard the lower courts should apply … It is time for the Court to weigh in and provide clear rules for lower courts struggling to resolve these questions during the COVID-19 pandemic.

ERLC amicus brief, p. 4. Retrieved from https://bit.ly/39gWDjp.

Well, SCOTUS did just that. Whatever else they may feel about his fitness for office, all people of faith owe President Trump a debt of gratitude for appointing Justice Barrett, a convictional and faithful Roman Catholic, to the Court. This decision is a wonderful victory for religious liberty, and I suspect 2021 will see many of these executive orders struck down State by State.

Glory! Glory! Hallelujah! His truth is marching on …

Happy Thanksgiving.

COVID, the Church, the State and a more excellent way?

COVID, the Church, the State and a more excellent way?

What to think about government public health edicts and the Church regarding COVID-19? In an outburst of representative frustration, a Southern Baptist theologian recently posted the following on Twitter in response to his Governor’s new lockdown restrictions which, among other things, forbade dancing:[1]

As the American philosopher Yosemite Sam has often remarked, “them’s fightin’ words!”

Basic principles

We begin with some principles to help us consider how to react to the latest public health directive from Governor Inslee.

  1. The Bible tells us we need community and relationship to be truly human, and the Church is God’s community.

God saves His people to join them to the brotherhood of faith so we can be in relationship with Him and with our new brothers and sisters in the faith.[2] This is why God gave us pictures of the Church as God’s bride (Hos 1-3; Ezek 16; Eph 5), His body (1 Cor 12), and His spiritual house (1 Pet 2). It means we are only complete in community and fellowship with each other. This cannot be done solely by Zoom or YouTube. Therefore, just as a marriage does not exist unless there is a spatial closeness and relationship, so the Church cannot long exist if it does not meet for corporate worship. There are reasons why long-term, long distance marriages often die!

For God’s people to not meet in community is to deliberately hinder the image of God that Father, Son and Spirit are refurbishing in our individual and corporate lives (2 Cor 3:18; cp. 1 Cor 15:49).

Therefore, the Church should close its doors only as a matter of extreme necessity, as a last resort.

  1. The Bible says God puts the government official in place.

We cannot forget this, no matter who is in office:

Daniel 2:21: “He changes times and seasons; he removes kings and sets up kings.”

John 19:11: “You would have no authority over me at all unless it had been given you from above.”

Romans 13:1-2: “Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment.”

  1. The Bible says we must obey the secular authorities.

This also cannot be wished away.

We do it because we would be disobeying God if we disobeyed the authorities. “Therefore one must be in subjection, not only to avoid, God’s wrath but also for the sake of conscience,” (Rom 13:5).

Paul told Titus to “remind them to be submissive to rulers and authorities,” (Titus 3:1).

We do it for the sake of evangelism. “Be subject for the Lord’s sake to every human institution, whether it be to the emperor as supreme, or to governors as sent by him to punish those who do evil and to praise those who do good. For this is the will of God, that by doing good you should put to silence the ignorance of foolish people,” (1 Pet 2:13-14).

  1. The Bible tells us we can disobey the authorities in certain circumstances.

The penultimate examples are Acts 4:1-22 and Acts 5:27-33. But, before we use these as the escape pod for which we have been searching, we must note three things:

  • The authorities singled the Christians out for discriminatory treatment. They treated the Church differently than other groups.
  • The State ordered the Church to not preach the Gospel. The State wanted to stop evangelism, not corporate worship.
  • The State did this maliciously and on purpose because it hated the Gospel.

We also think of Daniel and his friends who refused to compromise the way they practiced their faith—even after the State commanded them to do so (Dan 1:8). Would they have done so if there were a legitimate public health reason? Perhaps a famine, a crop failure, or something similar? We do not know. We do know the king’s order did not supersede God’s command, and Nebuchadnezzar provided no compelling reason for them to think it did. God blessed Daniel and his friends for their allegiance (Dan 1:17-21).

In non-canonical but very helpful Jewish literature from the period between Malachi and Matthew, the theme of staying loyal to God in foreign lands was also a tough issue. The Book of Tobit is set during the Assyrian exile, and it is about a man named … (you guessed it) … Tobit, who struggled to be a faithful Israelite in a strange land. He explained:

Now when I was carried away captive to Nineveh, all my brethren and my relatives ate the food of the Gentiles; but I kept myself from eating it, because I remembered God with all my heart (Tobit 1:10-12).

Like Daniel, Tobit loved God and so tried very, very hard to observe the dietary laws even in hard circumstances. As with Daniel, it was not about the dietary laws per se; it was about an honest desire to do what God ordered.[3]

What “certain circumstances,” then, allow us to disobey the State? Based on our survey, there are three triggers:

Considering COVID in Thurston County

This brings us to COVID, and Governor Inslee’s proclamation 20-25.8 of 15 November 2020.[5] These are his new directives for congregations:

Governor Inslee explained during a press conference:[6]

This spike puts us in a more dangerous a position as we were in March … And it means, unfortunately, the time has come to reinstate restrictions on activities statewide to preserve the public’s well-being, and to save lives. These were very difficult decisions that have very real consequences to people’s livelihoods. I recognize that and don’t take those impacts lightly, but we must act now and act quickly to slow the spread of this disease.

As of 15 November 2020, the Thurston County Health Department reports the following statistics:[7]

This data shows a 98.4% survival rate and indicates 6.4% of those infected have required hospitalization. The Thurston County Public Health Officer recently wrote the community[8] (p. 1, §7) that her recommendation to abandon in-person school instruction was “made based on our local patterns of transmission, rising transmission rates, hospital capacity, public health capacity, and our likely trajectory of disease going into winter.” It is reasonable to assume Governor Inslee’s proclamation is predicated on similar concerns.

As of 15 November 2020, the cumulative data for the State of Washington is as follows:[9]

This data shows a 98.1% survival rate and demonstrates 7.3% of those infected have required hospitalization. For comparison, here are the State of WA and Thurston County datasets side by side:

COVID and basic principles

We now turn to the triggers we previously discussed which allow the Church to disobey the government. We can eliminate one of these and further explore two others, as follows:

Discrimination?

The State has not engaged in intentional discrimination. Has it engaged in defacto discrimination? In this context, to discriminate means to “make an unjust or prejudicial distinction”[10] regarding the Church. To be unjust is to not behave “according to what is morally right or fair.”[11] Something is prejudicial if it is “harmful to someone or something; detrimental.”[12] Therefore, we can summarize and say Governor Inslee’s proclamation is defacto discriminatory against the Church if it draws morally wrong or unfair distinctions between it and other organizations in society, and these distinctions cause harm.

In his proclamation 20-25.8, Governor Inslee states (p. 3, §3):

These below modifications do not apply to education (including but not limited to K-12, higher education, trade and vocational schools), childcare, health care, and courts and judicial branch-related proceedings, all of which are exempt from the modifications and shall continue to follow current guidance.

Is this distinction morally wrong? Is it unfair to allocate the Church less societal value than a daycare? Is it morally wrong to say the Church is less valuable than an undergraduate institution which runs a course about the sociology of gender, in which students read texts that advocate transgender ideology?[13]

In this context every policy decision has, at its root, a moral calculus that weighs the organization’s value to society.[14] Governor Inslee has decided public schools, universities, trade schools, childcare, health care, the courts and their associated activities are more valuable than religious community. He has conducted a moral reckoning, and he sincerely believes his conclusions are correct.

But, the fact remains he has made a distinction. Is it an immoral or unfair distinction? According to Governor Inslee, both the organizations above are more precious than the Christian church. Thus, they may operate under current guidelines and are not subject to this new proclamation. According to the scriptures, gathering in community is not optional, it harms God’s people to prohibit it, and transgender ideology is a false construct of self-identity and humanity.

Therefore, we could say Governor Inslee’s proclamation 20-25.8 is defacto discriminatory against the Church. However, he has not prohibited churches from meeting. He has set limits on the manner of worship, and he has set similar (financially) harmful limits on how other organizations conduct their operations. The State economy has been crippled and is only now beginning to recover.[15] It is safe to say this latest proclamation will rip the new scab off this wound for all manner of organizations, across all sectors. If Governor Inslee is explicitly or implicitly injuring the Church, even his foes must admit he is making a very clumsy job of it.

Evidence suggests the allegation of defacto discrimination against the Church is ambiguous and unclear.

We turn to the next issue.   

Adequate cause to change the manner of worship?

The question is about predication. In SKRBCs context, the weightiest issue from WA’s new restrictions is whether Governor Inslee has adequate cause to prohibit congregational singing in a worship service. Does he? In his press conference, Governor Inslee declared:[16]

We have a pandemic raging across the state. It is a potentially fatal disease. Left unchecked, it will assuredly result in grossly overburdened hospitals. It will keep people from receiving routine but necessary medical treatment because of the stresses our hospitals will be under.

Left unchecked, the economic devastation, long term, will be continually prolonged. And, most importantly, left unchecked, we will see continued untold numbers of death.

We will not allow these things to happen.

This brings us back to the datasets about COVID:

Just from this admittedly simple review, COVID-19 does not seem to be a serious disease. The number of WA dead (2,519) seems only to be so high because so many have been infected (130,419). And yet, this data masks the true horror of the virus. Even this seemingly modest amount of hospitalizations may overwhelm the public health sector:[17]

… in the hardest-hit areas, there are simply not enough doctors, nurses, and other specialists to staff those beds. Some health-care workers told me that COVID-19 patients are the sickest people they’ve ever cared for: They require twice as much attention as a typical intensive-care-unit patient, for three times the normal length of stay.

The article goes on:[18]

The entire state of Iowa is now out of staffed beds, Eli Perencevich, an infectious-disease doctor at the University of Iowa, told me. Worse is coming. Iowa is accumulating more than 3,600 confirmed cases every day; relative to its population, that’s more than twice the rate Arizona experienced during its summer peak, “when their system was near collapse,” Perencevich said. With only lax policies in place, those cases will continue to rise. Hospitalizations lag behind cases by about two weeks; by Thanksgiving, today’s soaring cases will be overwhelming hospitals that already cannot cope. “The wave hasn’t even crashed down on us yet,” Perencevich said. “It keeps rising and rising, and we’re all running on fear. The health-care system in Iowa is going to collapse, no question.”

In the imminent future, patients will start to die because there simply aren’t enough people to care for them. Doctors and nurses will burn out. The most precious resource the U.S. health-care system has in the struggle against COVID-19 isn’t some miracle drug. It’s the expertise of its health-care workers—and they are exhausted.

Just how difficult is it to care for a single COVID-19 patient?[19]

A typical patient with a severe case of COVID-19 will have a tube connecting their airways to a ventilator, which must be monitored by a respiratory therapist. If their kidneys shut down, they might be on 24-hour dialysis. Every day, they’ll need to be flipped onto their stomach, and then onto their back again—a process that requires six or seven people. They’ll have several tubes going into their heart and blood vessels, administering eight to 12 drugs—sedatives, pain medications, blood thinners, antibiotics, and more.

All of these must be carefully adjusted, sometimes minute to minute, by an ICU nurse. None of these drugs is for treating COVID-19 itself. “That’s just to keep them alive,” Neville, the Iowa nurse, said. An ICU nurse can typically care for two people at a time, but a single COVID-19 patient can consume their full attention. Those patients remain in the ICU for three times the length of the usual stay.

Are some Christians so insulated in their echo-chamber of favored news commentators that they do not realize how awful COVID is? One public health worker recently lamented:[20]

Health-care workers and public-health officials have received threats and abusive messages accusing them of fearmongering … They’ve pleaded with family members to wear masks and physically distance, lest they end up competing for ICU beds that no longer exist. “Nurses have been the most trusted profession for 18 years in a row, which is now bull**** because no one is listening to us,” Neville said.

Add to it that the Centers for Disease Control and Prevention now concludes COVID-19 spreads through droplets in the air:[21]

Some infections can be spread by exposure to virus in small droplets and particles that can linger in the air for minutes to hours. These viruses may be able to infect people who are further than 6 feet away from the person who is infected or after that person has left the space.

This kind of spread is referred to as airborne transmission and is an important way that infections like tuberculosis, measles, and chicken pox are spread.

There is evidence that under certain conditions, people with COVID-19 seem to have infected others who were more than 6 feet away. These transmissions occurred within enclosed spaces that had inadequate ventilation. Sometimes the infected person was breathing heavily, for example while singing or exercising.

In light of this, does the Church have cause to question the State’s motives in a public health emergency? Can it responsibly ignore the recommendations of public health experts? It seems the following guidelines should apply when considering public health emergency orders:

In the State of Washington’s context, the answers to these questions are, in order, No, Yes and Yes.

Does Governor Inslee therefore lack adequate cause to restrict congregational singing? Only if the Church believes the proclamation (and others like it from other Governors) is part of a conspiracy against Christ and His Church. Such theories abound on the internet, that warm incubator for so much cold darkness.[22]

Of course, these questions do not consider that Satan disguises himself as an angel of light (2 Cor 11:14) and rarely works in an overt way. He seeks to destroy the Church (1 Pet 5:8; Rev 12:17). “For we are not ignorant of his designs,” (2 Cor 2:11). We also must consider whether the Church is the proverbial frog in the pan that slowly boils to death … and never notices. Is the burner dial turning to “MED-HIGH” even now? 

We must remember we live in two worlds: the City of God and the City of Man. This world does not like the Church, does not respect it, does not value it, and never will. We must only go along with public health decrees that re-shape our community and our worship as long as we are reasonably certain there is no explicit or implicit evil motivating them.

Is there, in this case? With Satan, we can never be sure. But the evidence suggests no.

A more excellent way?

We make a mistake when we consider COVID and the State from the perspective of Satan as the moving force in the universe. Yet, that is what we have done. It is what we have all done. We forget the most biblical way to think of COVID is as God’s judgment on the world. Examples from scripture are too numerous to list, but here is one (Jeremiah 14:11-12):

The LORD said to me: “Do not pray for the welfare of this people. Though they fast, I will not hear their cry, sand though they offer burnt offering and grain offering, I will not accept them. But I will consume them by the sword, by famine, and by pestilence.”

God brings curses on a world that rejects Him. True, the world is not Israel. But the point remains—God brings judgment so people might repent. We do not know what His specific message is, but we can be certain it has to do with repentance and allegiance to His name.

While it is necessary to focus on the Church’s obligations to the State regarding public health orders, it is perhaps best for the Church to re-double its efforts to fulfill its mission. That mission is to preach the Gospel. To build bridges to the community in service of that Good News. To be innovative, creative, and winsomely aggressive in this outreach.

That is what God would have us do.

Notes

[1] See https://twitter.com/ostrachan/status/1328413157325410304. This was posted on 16 November 2020.              

[2] See the sermon “Made for Each Other? The Bible on Marriage” (preached 01 November 2020) for an exposition of Genesis 2:18-25. This sermon is essentially about the imago dei and how it is imaged in the covenant of marriage. Retrieved from https://youtu.be/BHZaV6YwXSg.

[3] See also 1 Maccabees 1:58-64 for a similar theme. 

[4] The case of defacto discrimination is well illustrated by Pliny the Younger’s letter to Emperor Trajan querying how he ought to handle Christians. This came about after Pliny issued a general edict outlawing political associations. Christians were then caught up in this administrative dragnet. This was not an explicit, but a defacto discrimination.

[5] Retrieved from https://www.governor.wa.gov/sites/default/files/proclamations/proc_20-25.8.pdf

[6] TV Washington, “Governor Inslee Press Conference on COVID-19,” (15 November 2020). Retrieved from https://www.tvw.org/watch/?eventID=2020111099.

[7] Retrieved from Thurston County Public Health and Social Services on 15 November 2020 from https://www.thurstoncountywa.gov/phss/Pages/covid-19-data.aspx

[8] Dr. Dimyana Abdelmalek, “Letter to the Community: 10 November 2020.” Retrieved on 15 November 2020 from https://www.thurstoncountywa.gov/phss/phssdocuments/11%2010%2020%20letter%20to%20community%20FINAL.pdf

[9] WA State Department of Health, “COVID-19 Dashboard.” Retrieved on 15 November 2020 from  https://www.doh.wa.gov/Emergencies/COVID19/DataDashboard.

[10] New Oxford American Dictionary, 3rd ed. (New York: Oxford, 2010), s.v. “discriminate,” verb, 2; p. 497. 

[11] Ibid, s.v. “unjust,” p. 1893. 

[12] Ibid, s.v. “prejudicial,” p. 1378. 

[13] For example, see SOC 235 “Sociology of Gender” from South Puget Sound Community College. The assigned textbook is Lisa Wade and Myra Ferre, Gender: Ideas, Interactions, Institutions, 2nd ed. (New York: Norton, 2018).

[14] “A man who acts, makes decisions, ranks things above or below, sets a high or low value on things, is acting according to definite principles—even though theoretically he may deny these principles—and he is acting with the consciousness—although in theory he would certainly deny it—that it is right to act in such a way,” (Emil Brunner, The Divine Imperative, trans. Olive Wyon [Philadelphia: Westminster, 1947], 18). 

[15] See State of Washington Economic and Revenue Forecast Council, Economic & Revenue Update – October 15, 2020, pp. 3-5. Retrieved from https://erfc.wa.gov/sites/default/files/public/documents/publications/oct20.pdf

[16] TV Washington, “Press Conference,” 00:25 – 01:10. Retrieved from https://www.tvw.org/watch/?eventID=2020111099.

[17] Ed Yong, “‘No One Is Listening to Us,’” The Atlantic (13 November 2020). Retrieved from https://www.theatlantic.com/health/archive/2020/11/third-surge-breaking-healthcare-workers/617091/.

[18] Ibid.  

[19] Ibid.

[20] Ibid.

[21] Centers for Disease Control and Prevention, “How COVID-19 Spreads,” updated 28 October 2020. Retrieved on 16 November 2020 from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. Emphasis added.

[22] These theories usually include varying amalgamations of George Soros, the World Economic Forum, Bill Gates, microchips, a belief COVID-19 is not real or is being exploited for nefarious purposes, and conviction that there exists a coordinated, multi-national cabal of political and civil service conspirators ready to execute sinister orders from on high across the globe. I believe the latest colloquial term for this conspiracy at the moment is “the Great Reset.” You can read a short, breezy article skeptical of this theory here.

A bad argument from a good man

Grace Community Church, where John MacArthur serves, has released a statement announcing its intent to defy California’s latest rollback of church gatherings due to concerns of a resurgent COVID-19.

The statement is a disaster.

If MacArthur wishes to defy the California government, he needs to do better than this. Here are some relevant excerpts:

As pastors and elders, we cannot hand over to earthly authorities any privilege or power that belongs solely to Christ as head of His church. Pastors and elders are the ones to whom Christ has given the duty and the right to exercise His spiritual authority in the church (1 Peter 5:1–4; Hebrews 13:7, 17)—and Scripture alone defines how and whom they are to serve (1 Corinthians 4:1–4). They have no duty to follow orders from a civil government attempting to regulate the worship or governance of the church. In fact, pastors who cede their Christ-delegated authority in the church to a civil ruler have abdicated their responsibility before their Lord and violated the God-ordained spheres of authority as much as the secular official who illegitimately imposes his authority upon the church.

He continues:

History is full of painful reminders that government power is easily and frequently abused for evil purposes. Politicians may manipulate statistics and the media can cover up or camouflage inconvenient truths. So a discerning church cannot passively or automatically comply if the government orders a shutdown of congregational meetings—even if the reason given is a concern for public health and safety.

MacArthur explains:

When officials restrict church attendance to a certain number, they attempt to impose a restriction that in principle makes it impossible for the saints to gather as the church. When officials prohibit singing in worship services, they attempt to impose a restriction that in principle makes it impossible for the people of God to obey the commands of Ephesians 5:19 and Colossians 3:16. When officials mandate distancing, they attempt to impose a restriction that in principle makes it impossible to experience the close communion between believers that is commanded in Romans 16:16, 1 Corinthians 16:20, 2 Corinthians 13:12, and 1 Thessalonians 5:26. In all those spheres, we must submit to our Lord.

Unfortunately, MacArthur made no substantive case, here.

In the New Covenant, without a Yahweh-mandated theocracy, we find precedent for defying the State in the Book of Acts. That volume shows the Church (1) being ordered to not preach the Gospel because the quasi-civil authorities do not like the Gospel, and (2) the Church refusing to obey (Acts 4:15-20).

In order to take advantage of this precedent, the Church must argue a local jurisdiction is acting in a way that fits the pattern. Specifically, persecution or otherwise discriminatory treatment because of religion. Of course, Luke is not on hand to take us into the minds of civil authorities, so we must use a “reasonable person” standard.

So, you must separate government directives into two broad categories of impetus for our context; (1) public health, and (2) persecution or otherwise discriminatory treatment because of religion. In order to trigger civil disobedience, a church must make a plausible case Scenario #2 is happening. In this, MacArthur has not succeeded.

He’s essentially advocating civil disobedience whenever a church disagrees with civil authorities. In fact, on his argument, why should any Christian ever obey his government? This logic is a blank cheque for anarchy, for those looking for it. I expected better from MacArthur.

What about Nevada?

Consider the situation in Nevada.

The Supreme Court (“SCOTUS”) declined last week to hear arguments from Calvary Chapel Dayton Valley alleging religious discrimination by the State of Nevada. Calvary Chapel sought to hold services with 90 people, with appropriate social distancing. However, Nevada restricts churches (and certain other institutions) to 50 people flat. But certain other public facilities, including casinos, are limited to 50% of the fire code capacity. Clearly, these are different metrics. When SCOTUS declined to hear the case, it let the lower court decision stand. In Justice Alito’s dissent, he noted:

The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities.

Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy—and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.

If I were in Nevada, I would give serious consideration to defying the State’s order. To return to California, if Grace Community Church feels it’s in an analogous situation, it should explain. Perhaps it cannot.

In short, MacArthur (et al) has made a bad argument. No doubt, some evangelicals will gleefully post it as though Christ has spoken and the matter is settled.

It is not settled.

Perhaps there is an argument to be made that churches can defy the California governor. John MacArthur just hasn’t made it. No Christian should rely on this statement as a basis for defying his State government. We must do better than this.

Return to California

In response to questions about what, precisely, has changed to warrant this reaction, Grace Community Church released a clarification appended to the original article. It reads, in part:

But we are now more than twenty weeks into the unrelieved restrictions. It is apparent that those original projections of death were wrong and the virus is nowhere near as dangerous as originally feared.

This appears to be the beginning of an argument for civil disobedience based on government incompetence. But, again, the examples from the Book of Acts show us quasi-civil authorities who order the Church to not preach the Gospel because they doesn’t like the message. We have no example of the Church disobeying civil authorities simply because it disagrees with public policy. If Grace Community Church believe otherwise, it ought to prove its case.

Still, roughly forty percent of the year has passed with our church essentially unable to gather in a normal way. Pastors’ ability to shepherd their flocks has been severely curtailed. The unity and influence of the church has been threatened. Opportunities for believers to serve and minister to one another have been missed. And the suffering of Christians who are troubled, fearful, distressed, infirm, or otherwise in urgent need of fellowship and encouragement has been magnified beyond anything that could reasonably be considered just or necessary.

To be sure, this is hard. Every pastor feels it. But, is there really nothing that can be done? A full, corporate worship service in your auditorium is the only solution to this problem? You can’t do visitation? You can’t have smaller gatherings in homes? You can’t have outdoor services?

Major public events that were planned for 2021 are already being canceled, signaling that officials are preparing to keep restrictions in place into next year and beyond. That forces churches to choose between the clear command of our Lord and the government officials. Therefore, following the authority of our Lord Jesus Christ, we gladly choose to obey Him.

If MacArthur believes California is doing this to deliberately target religious institutions, then he must provide evidence. If he has none, then he’s encouraging any Christian on earth to disobey the State whenever he disagrees or otherwise finds civil authority inconvenient. This is puzzling coming from MacArthur, who believes (rightly, in my view) there was no biblical warrant for the Colonies to revolt against the British!

This is a terrible document. Too many Christians will accept it uncritically. Some of them will do so because they’re anxious for theological cover, any cover, to justify what they already want to do. Others, perhaps some of the same, will be moved by conspiracy theories or animated by political animus. Given MacArthur’s stature in the evangelical world, the bad arguments here are particularly disappointing. Even worse, MacArthur encourages you to “add your signature to the statement,” regardless of whether California’s civil context is your own.

I shall close with a summary from Phil Johnson, of Grace Community Church, made in the context of a dispute with Mark Dever about a 9Marks article which disagreed with the decision:

This is not an argument that triggers Scenario #2. Again, I say it’s possible there is an argument to be made for civil disobedience in California’s context. MacArthur just hasn’t made it.

Read the statement here.