Friday, March 20, 2020

Can the state cancel church services?

From two different conversations:

Hays 
The question at issue isn't whether it's permissible to cancel church under some circumstances, but the circumstances under which it's permissible to cancel church. The abstraction offers no guidance.

Wolfe 
I think that for many it is whether it is permissible to cancel church. So you affirm?

Hays 
It's easy to dream up examples. Take a church near a raging forest fire. The extreme examples are an easy call. The coronavirus is more disputable because the projections are so iffy (for one thing). There's a continuum between unmistakable justifications and hypothetical threats with varying degrees of likelihood and severity.

Wolfe 
If it is disputable, then you defer to civil authority.

Hays 
No I don't. I don't defer to Mayor Blasio or Gov Newsom or Gov Inslee.

Since you don't explain how if it's disputable, you defer to civil authority, it's hard to respond, since I don't know your underlying rationale. We could probably go layers deep on the issue. 

i) If this is a Rom 13 thing, here's my general view of Rom 13:



ii) I'd add that even at a Rom 13 level, for Christian Americans there's a sense in which Rom 13 is mediated by the US Constitution inasmuch as submission to civil authority takes that particular form in our situation.

iii) If you subscribe to a generic deference to civil authority in case a public policy question is disputable, I disagree. That's too abstract. We always need to take the facts into consideration. If we know that a particular civil magistrate is a fool, we have no duty to defer to his judgment in policy matters. He has no wisdom or virtue. Indeed, we have a duty to dissent from his judgment in policy matters.

iv) I'd add that American officials have no authority to cancel church services. That violates the free exercise clause, further augmented by the RFRA. So it's not even civil disobedience to defy them in that regard.

v) There is, of course, a pragmatic dimension to this. We might defer to civil authority because it's too risky to resist. We must weigh the cost. Sometimes you can get away with it. If enough people disregard a law or policy, that often becomes moot. 

i) This isn't directly about a general right regarding free assembly but an explicitly guaranteed Constitutional right regarding the exercise of religion. The exercise of religion includes public assembly, but is more specific. 

ii) This is also about civil authorities taking it upon themselves to judge which kinds of goods and services are essential and which are nonessential, deeming public worship to be nonessential.

iii) I don't subscribe to mandatory evacuations. People should be free to stay at their own risk. many people disregard mandatory evacuations. That's a gamble, sometimes they lose the bet. But it's their life.

iv) Much depends on examples. It ranges along a continuum. Sure, authorities can shut down a building (including a church) with a gas leak. Or it can cordon off a road with a gas leak, indirectly impeding access to a church. 

If there's a raging forest fire, the authorities can block access to the area until the fire is under control. Temporary curfews are sometimes justified.

The question is whether these are valid analogies to an open-ended policy of criminalizing church services for the indefinite duration of a pandemic. Especially when restrictions about social distancing and essential/nonessential services are arbitrarily discriminatory. 

Put another way, there's the fallacy of extrapolating from clear-cut examples to borderline cases to increasingly attenuated examples where the principle becomes ac hoc and tyrannical. 


v) This isn't about shutting down a church building because it violates the fire code, but a sweeping ban on church services citywide and statewide.

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