Unrighteous Dominion

We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion.—Doctrine and Covenants 121:39

Why do we limit government’s powers? Because governments are made up of individual humans, some good, some not so good. None perfect. Many are petty tyrants. So we limit government. We must.

But what about when there’s an emergency? Like now?

Governments have ordered people to stay home as much as possible. Lose their livelihood for the time being. Lose businesses, some of them permanently. Lose many of our basic freedoms. But we have been going along with the restrictions—for now. Assuming there is a greater good we are doing it for. And assuming it is temporary, and damages might be mitigated later.

But, as petty tyrants do, they step further than necessary. And they have to be swatted back.

A good swat happened this past weekend, in Kentucky. 

On Thursday, Louisville Mayor Greg Fischer ordered a prohibition on churches—but particularly on a single local church that had made plans—to have drive-up services, including for Easter.

The church, On Fire, pushed back. And quickly, District Court Judge Justin R. Walker issued a temporary restraining order, Saturday afternoon—before the prohibition could take effect on Easter Sunday.

On Fire Christian Church, Louisville, Kentucky
image from On Fire Facebook page, found here

I’ve been binge-watching the Viva Frei Vlawg—a law-related video blog, with Canadian lawyer David Frei, for some months now, since impeachment. Even though he’s in Canada, he often covers American issues, and is a serious student of our Constitution. My son Political Sphere told me Frei had posted yesterday morning, out in his car, with his wife texting him to get back in the house, because he just had to share this ruling—about the Kentucky case. 

So I went and looked for it. Of this ruling Frei says, “Some judgments, however long or short, are just tedious to read, while other judgments are just things of beauty.” And he's right; this is a thing of beauty in written thought.

Frei says he’s often asked about the constitutionality of these restrictions during the pandemic. He says, “The questions is not, ‘Are these measures unconstitutional?’ The question is whether the unconstitutionality of these measures can be justified by the circumstances.” The measures must be “proportionate to the urgency of the situation.”

So he goes through the TRO (temporary restraining order) written by Judge Walker. 

Here’s the introductory paragraph of the 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 Easter 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,”[i] unconstitutional.

Introductory paragraph of the opinion
from here

The judge said the Church would suffer irreparable harm, because missing Easter services is not something that can be made up to them. Saying, “Oh well, you can try again next Easter” won’t do.

And he said the government would be substantially burdening the believers, preventing them from practicing their religion on one of the most important religious holidays.

He said the temporary restraining order was necessary because of the urgency of the timing. A hearing is to happen on Tuesday, April 14. (In the TRO, he suggests how to get the contact information for the virtual hearing—which includes allowing the public to listen in.[ii]) Waiting until the hearing would mean the irreparable harm—of missing Easter—would be done. So this was urgent.

Further, he did not require the plaintiff, On Fire Christian Center, to put up security; that is, a possible payment amount set aside in case they lose. The judge said there would be no damage done to the city of Louisville if On Fire were to lose; its right to prohibit public gatherings to prevent the spread of the virus would be intact. He also waived notice of judgment because of the timing and urgency—but he was likely pretty sure the Mayor got the message in time to rescind the order to have police at the church taking license plate numbers.

In his reasoning Judge Walker spends some time introducing the history of Easter, to explain why it is seen as important to a Christian. And he also makes some comparisons that show the Mayor and Louisville what category he puts them in:

Of course, pockets of society have not always lived up to our nation’s ideals. Slaveowners flogged slaves for attending prayer meetings.[iii] Murderous mobs drove the Latter-day Saints into Utah.[iv] Bigotry toward Roman Catholics motivated a majority of states to enact Blaine Amendments.[v] Harvard University created a quota system to admit fewer Jewish students.[vi]

And now we have Louisville’s mayor preventing the celebration of Easter.

Frei tells us there are four criteria for a TRO:

1.       Plaintiff (On Fire) has strong likelihood of success on the merits.

2.       Plaintiff would suffer irreparable injury without a TRO.

3.       The “balance of the equities” tips in Plaintiff’s favor.

4.       Injunction is in the public interest.

On Fire satisfies all four requirements for a TRO. And the judge lays out why for each one.

What was Mayor’s Fischer’s side? What was his justification for the prohibition? He claimed it wasn’t “practical to accommodate drive-up services in our community.” But he does not prohibit drive-through restaurants or liquor stores. He claimed what the church was planning was “clearly a very, very unsafe practice.”

But on what basis? The cars were going to be parked six feet apart. People were going to remain in their cars, with windows no more than halfway down throughout the service. The only people out of cars would be the pastor and the videographer, who would be well separated from the cars (and presumably from each other). The church had every intention of abiding by CDC guidelines for social distancing.

Why would it be unsafe to be in a car away from others in a church parking lot, but not at a drive-thru restaurant or a liquor store? Or any other type of parking lot, for that matter?

It’s true that the mayor could fulfill his own religious convictions from home on Easter Sunday; many people would. (We did.) But that doesn’t mean it has to be true for everyone. People believe differently. The judge says, quite beautifully,

It is true that On Fire’s church members could believe in everything Easter teaches them from their homes on Sunday. So too could the Pilgrims before they left Europe. But the Pilgrims demanded more than that. And so too does the Free Exercise Clause. It “guarantees the free exercise of religion, not just the right to inward belief.”[vii] That promise is as important for the minister as for those ministered to, as vital to the shepherd as to the sheep. And it is as necessary now as when the Mayflower met Plymouth Rock.

The mayor’s threats actually violate both the First Amendment and Kentucky law. Still, government is not always and necessarily in the wrong. Judge Walker concedes that, in an emergency such as an epidemic, a state may implement emergency measures that curtail constitutional rights. But these measures must be:

·         Proportionate.

·         Justified.

·         Necessary.

·         Effective.

Frei explains that even very minimal measures would not be justified if they didn’t relate to the public health crisis—or whatever the crisis might be, or if they were ineffective in addressing it. And the most massive, sweeping, draconian measures could be effective—"such as making everyone stay at home in their bathroom,” he suggests—but those measures would be too overly burdensome to be justified.

Viva Frei Vlawg: "Louisville Mayor Tried to Cancel Easter"
screenshot from here

So there must be a balance. The Judge recognizes that Louisville shows a compelling interest—the public health, saving lives. But government must show it lacks other means of achieving its desired goal.

The measures are both underinclusive and overbroad. Louisville does not narrowly tailor the measures to avoid unduly burdening the right of Freedom of Religion in this case. Nor does it include other similar non-religious circumstances. Together, this looks pretty clearly like infringement of religious rights specifically.

After laying out all the legal views, here is the Judge’s final paragraph:

But for the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, “it isn’t a matter of reason; finally, it’s a matter of love.”[viii]

Judge Walker is a recent Trump appointee, only 38 years old. We’re going to need judges who can both see the legal issues, but be sensitive to the philosophy underlying what our founders put in place.

Frei ends with this:

Health emergencies, even if they are most legitimate emergencies, do not give the government carte blanche to take all one fundamental rights and liberties. Even in the context of health emergencies, violations to one’s fundamental rights and liberties have to be justified; they have to be proportionate; and they have to be reasonable. They have to be properly and narrowly crafted in order to achieve the desired result without unduly infringing on rights and freedoms.

And if we don’t have judges like Judge Walker holding the government to task, it is not long before we have no rights at all.

My own Church has been very well set up for worship from home, and for now I’m comfortable with that—trusting that it’s only for this special time.

There have been other churches who have looked at the social distancing guidelines and tried to find ways to abide by those within their buildings. They offer hand sanitizer. They seat people with each family separated from others by at least six feet. They’re trying to find a balance. It doesn’t look different from social distancing at a grocery store. So, whoever is telling them they can’t ought to be proving it’s somehow less safe than in the grocery story. I think there’s likelihood in-person is more dangerous than drive-thru, but it may not be more dangerous than other working conditions that are allowed.

I heard of a place deciding that people shouldn’t be allowed to shop for non-necessities when they do go out to shop. No clothing, for example. Only food. But who is to say that the family with a growing toddler doesn’t absolutely need more clothing—which they can see the size and feel of in person, and which they may not have the resources to buy with shipping costs online?

And then there was the closing of parks—for fear people would use them inappropriately, not because they had been misused and causing danger. So this means that people who have no other outdoor choice (and outdoors is supposed to be good for us, and safe) can’t go to the park for a walk or run.

Police in Colorado arrested a dad who was playing catch with his young daughter—away from everyone but their nuclear family. The ones who violated the social distancing were the police. They had to release him almost immediately, with an apology—and investigation coming. What violation did they even think they saw?

A friend of mine was walking with her husband and son—away from all others. A car drove by and yelled at them to get home and stay away from people. Why? Wouldn’t you assume a family walking together also lives in the same house together?

Petty tyrants pop up in times like this, when our usual freedoms are suspended. We’ll need to reassert our rights as soon as we can, and repeatedly. We can thank judges like Judge Walker. But we also need to do more than trust the courts.

If we want our world back, as we begin to open back up, we will need to do whatever we can that is safe enough, and insist on our rights to do those things.

Frei ended with this quote on the screen:

“Those who deny freedom to others deserve it not for themselves; and under the rule of a just God, cannot long retain it.”—Abraham Lincoln

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[i] The “beyond all reason” quote is from Cf. Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).

[ii] Point 8 in the TRO reads: “The Court GRANTS On Fire’s request for Oral Argument. The Court will hold a

telephonic hearing on the preliminary injunction motion on April 14, 2020 at 11:00 A.M. Counsel

shall email Ms. Megan Jackson at Megan_Jackson@kywd.uscourts.gov for the hearing’s call-in

number and access code. Members of the public interested in listening to the hearing may also

email Ms. Jackson.”

[iii] Footnote in the TRO: Albert J. Raboteau, The Secret Religion of the Slaves: They often risked floggings to worship

God, CHRISTIANITY TODAY https://www.christianitytoday.com/history/issues/issue-33/secretreligion-of-slaves.html (last accessed Apr. 11, 2020).

[iv] Footnote in the TRO: See Mormon Pioneers, PIONEERS, https://www.bbc.co.uk/religion/religions/mormon/history/pioneers_1.shtml. (last accessed Apr. 11, 2020).

[v] Footnote in the TRO: See Jane G. Rainey, Blaine Amendments, THE FIRST AMENDMENT ENCYCLOPEDIA,

https://www.mtsu.edu/first-amendment/article/1036/blaine-amendments (last accessed Apr. 11,2020).

[vi] Anti-Semitism in the U.S.: Harvard’s Jewish Problem, JEWISH VIRTUAL LIBRARY, https://www.jewishvirtuallibrary.org/harvard-s-jewish-problem (last accessed Apr. 11, 2020).

[vii] Judge Walker refers to Trinity Lutheran, 137 S.Ct. at 2026 (Gorsuch, J., concurring).

[viii] In this last phrase, Judge Walker is quoting from Robert Bolt, A Man for All Seasons 141.