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Monday, April 13, 2020

Unconstitutional to Shut Down Churches, and Quarantine Communities

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

In the age of the coronavirus the new normal is to shelter in place, and avoid large gatherings.  Tyranny is loving it, for it is gatherings of liberty minded citizens that always foil their plans, and keeps evil at bay.  Due to the fear of getting sick, around the world folks are staying home and are avoiding groups, and that includes going to church.

While government officials are foaming at the mouth during this alleged crisis because they never like to let such opportunities go to waste, it has been downright depressing watching the American sheep fall into line so easily.  One wonders if the whole coronavirus hysteria, which I believe has been overblown by the media in ways that even conspiracy theorists are baffled, was created in some lab somewhere just to be a test to show them how we would respond.  From liberty's point of view we get a failing grade.  Meanwhile, your friendly neighborhood communist gives everyone an "A" plus for their rapid compliance to the authoritarian mandates raining down on us faster than we can blink.

As the world sheltered-in-place, Easter came and went.  Easter is one of those Holy Days that drags even the most stubborn out of bed and into church.  With a small handful of exceptions, for the most part there were no sunrise services, or Easter brunches.  Families didn't fill up the car in their Sunday best to go to church, even dragging dad who was grumbling he was missing a pivotal game on television.  While I am sure there were still many opportunities for kids to search for secular Easter Eggs, and celebrate the visit of a furry bunny that allegedly hid those eggs, the true message of Easter was either set aside, told around the coffee table by one member of the family, or watched online as everyone sat there in their pajamas.  The Easter Sunday experience at church was not an option.

Don't get me wrong, going to church is not what Salvation in Christ is all about.  Heck, my attendance record at church, of late, looks more like Thomas Jefferson's than that of Mother Theresa's.  But, as I said, while fellowship with other Christians is a good thing when it comes to our Christian walk, missing church does not make us less of a Christian, nor is it a sign that despite our proclamation of Faith in Jesus Christ we are somehow headed somewhere south of Heaven when we die.

That all said, the secular (or should I say "atheist," or even "satanic") liberal left progressive commies who are desperately trying to regain their power so that they may drive this country into a socialist grave are celebrating the fact that we have stopped going to church due to a silly virus, and even crazier yet, local governments have been using their authority as rulers over us to stop services from taking place, and in some instances have actually ticketed or threatened pastors with jail-time over holding church services.  Even parking lot services, with all of the parishioners hanging out inside their vehicles, have been stopped by government authorities.

The first question I get when that happens is, "Is that constitutional?"

The First Amendment of the United States Constitution is directed towards the federal government.  It reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

First, the federal government may make no law establishing any religion as the official religion of this country, and more specifically make that established church a mandatory choice for its citizens (which would include compelled attendance at such denomination, and the use of tax dollars to give government support to the chosen religion).  The second part of the clause, however, is the one we need to zero in on.  It says that the federal government cannot make law "prohibiting the free exercise" of religion.

The true power of the federal government is in its ability to make laws.  Without law creation the executive branch has no duties regarding the execution of such laws.  Any action the federal government takes must be supported by established law.  If there are no established laws regarding a particular action, the federal government may not take that action.  Therefore, the federal government may not constitutional make any laws regarding our opportunities to gather in Worship, and they may take no actions regardless of the law regarding the same.

Suggesting that we not gather during moments such as during the alleged coronavirus pandemic is acceptable, but the suggestion may not be legally binding.  In other words, it may only be a suggestion, but it may not be enforceable.

At the State level, there are no clauses in the U.S. Constitution prohibiting the States from interfering with our free exercise of religious worship.  That does not mean, however, that the States have the authority to do it.  While the Tenth Amendment is clear that if an issue is not delegated as an authority to the federal government, and not prohibited in its text to the States, it is a State issue, we must also remember we have something called "State Constitutions."

Regarding religious liberty, the California Constitution is worded to reflect pretty close to the same as the U.S. Constitution, and according to the University of San Francisco Law Review, "The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.  In Reynolds v. United States, cited as support for this portion of Everson, the Supreme Court accepted Thomas Jefferson’s letter to the Danbury Baptist Association “almost as an authoritative declaration of the scope and effect” of the First Amendment.  “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”

While the language of the text of the above interpretation is not exactly accurate in the sense that the First Amendment was directed at the federal government, not the States, and they also have what Jefferson meant by a "wall of separation of Church and State" in error (he meant, federal government can't interfere with issues regarding religion, it is a State issue), the overall understanding is close enough.  In short, the Founders believed that the politicians should be able to pray, the pastors should be able to preach on politics, but neither should exhibit control over the other.

The language of the State Constitutions themselves actually more mirror the Virginia Statute for Religious Liberty which was fashioned by Thomas Jefferson and James Madison, than they do the First Amendment of the U.S. Constitution (though similarities do exist), which was the foundation of what led to the exchange between Jefferson and the Danbury Baptists, and the eventual fall of the dominoes when it came to established churches versus religious liberty in the various States.

California's State Constitution, when it comes to religious freedom, in Section 4 reads, "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.  A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs."

Notice that free exercise leads the clause off, forming a barrier against the State regarding making laws compelling attendance, or State actions demanding non-attendance.

In Section 7 the California Constitution goes on to declare, "(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws".

The clause echoes the Fourteenth Amendment of the U.S. Constitution.  "Life, liberty, or property" is another way of saying "your rights", and if that is the proper interpretation, that includes your religious liberties.  That means the State may make no laws interfering with your religious liberty without due process of law, and the last time I checked, a virus is not a judge, a court, or a jury.

While I don't have time to go over every State Constitution, for the most part all of the State Constitutions have similar language regarding religious liberty.  Therefore, as we've seen with the California State Constitution, as with the federal government due to the language in the First Amendment, the State may not make any law for any reason influencing your free exercise to practice your religion.

I must add one caveat; the disallowance of a State or federal government from prohibiting the free exercise of a religion is provided that the exercise is not in direct violation of a non-related law.  For example, sacrificing virgins on an altar of fire would not be permissible by law not because government has a right to interfere with the free exercise of a religion that would call for such insanity, but because murdering an individual for any reason is not permitted by law.  Unfortunately, knowing that little caveat exists, the liberal left is changing the laws to try to steer religion in the direction they wish to steer them, such as with hate crimes laws, and more specifically, laws regarding homosexuality and transgenderism.

Also, in the California Constitution, and most of the State Constitutions are similar, if the law in question is regarding a public health emergency, martial law is not necessarily an option:
California Military and Veterans Code Section 143 is the statute that gives the Governor authority to proclaim Martial Law. This statute reads: 
Whenever the Governor is satisfied that rebellion, insurrection, tumult or riot exists in any part of the state … the Governor may, by proclamation, declare … to be in a state of insurrection, and he or she may thereupon order into the service of the state any number and description of the active militia, or unorganized militia, as he or she deems necessary, to serve for a term and under the command of any officer as he or she directs. 
As you can see, we are not currently in a state of rebellion, insurrection, tumult or riots and as such, the Governor of the State does not have the power to declare martial law. However, that being said, the Governor does have broad powers under the California Emergency Services Act. The California Emergency Services Act can be found starting in California Government Code section 8550.
 Additionally: When a governor calls a state of emergency, this gives him the authority to commandeer or utilize any private property or personnel deemed by him necessary in carrying out the responsibilities. However, the state is liable for the reasonable value of what it uses. (Gov. Code § 8572).

Lastly, California Governor Gavin Newsom has put out "executive orders" regarding social distancing, shelter-in-place recommendations, and the practice of wearing a mask covering one's nose and mouth.  Executive Orders do not carry the force of law, though the liberal left claims they do during a declared state of emergency (there are specifics on that, but we are not going to chase that at this point).  But, that said, in the current "emergency", Newsom's orders seem to understand his limitations.  The language in his orders states, “All residents are to heed any orders and guidance …”

The definition of the word heed is “to give consideration to.”  Governor Newsom knows he cannot technically order any of the activities people believe they are required by law to follow during this coronavirus thing.  His language specifically does not state that you must obey. Gavin Newsom told the citizens of California that Californians should take the advice given by the California Department of Public Health into consideration when making decisions, but that you are not required by law to do so.

Therefore, Newsom did not actually issue an executive order requiring Californians to practice social distancing, nor did he actually order gatherings of over 250 people to shut down. All he did was order people to pay attention to what these organizations were saying, and therefore consider not gathering in large groups, and consider practicing social distancing protocols.

These were merely recommendations, and are not technically legally binding.

In regards to quarantine-related actions, the California Department of Health Services does have certain authorities to issue emergency regulations, but there are no regulations, or constitutional provisions, allowing their policies to have the full force of law. Laws are passed by the legislature.

At the county level, California law does allow counties to declare a health emergency when the local health officer determines that there is a threat of the introduction of any contagious, infectious, or communicable disease. (California Health and Safety Code § 101080).  Note, those powers do not reside in the hands of the State agency, the California Department of Health Services.  In California, the system is set up to allow more local control over such issues, leaving these powers in the hands of local Health Officers.

Cal. Health & Safety § 101040 permits local health officers to take any preventive measures that may be necessary to protect and preserve the public health from any state of emergency declared by the governor. After a local health emergency has been declared, “The sheriff of each county .. may (emphasis added by me) enforce within the county … all orders of the local health officer issued for the purpose of preventing the spread of any contagious, infectious, or communicable disease.” (Cal. Health and Safety Code 101029).

Cal. Health & Safety § 101030 specifically gives the county health officer the authority to order quarantines.  However, the county health officer does not have the authority to order a quarantine of healthy people.  The system is set up to allow the health officer to make determinations on a case by case basis, not for a health officer to issue a quarantine of everyone in the county.

According to Lawyer, and former Secretary of State candidate, Mark Meuser, "In 1921, Laura Culver petitioned the courts to be released from a quarantine. The Court’s held that the law permitted public health officials to quarantine individuals who have come in contact with cases and carriers of contagious diseases."

He goes on to explain, "As one studies California law, it is clear that the law used to be very explicit that a quarantine was only applicable to those who had a contagious disease or those who had come in contact with someone who had a contagious disease."

Meuser points out that "While most of the laws regarding quarantine are very broad, Cal. Health & Safety § 120215 appears to have limiting language. This statute reads: Upon receiving information of the existence of contagious, infectious, or communicable disease for which the department may from time to time declare the need for strict isolation or quarantine, each health officer shall: (a) Ensure the adequate isolation of each case, and appropriate quarantine of the contacts and premises. (b) Follow the local rules and regulations, and all general and special rules, regulations, and orders of the department, in carrying out the quarantine or isolation."

As I stated earlier, if health officers have sufficient information that there is a communicable disease they may issue quarantine policy regarding individuals on a case by case basis, but they do not have the authority to order a county wide shelter in place law since the law only allows “adequate isolation of each case, and appropriate quarantine of the contacts.” Local health officials have overstepped their authority. The counties are not looking at this on a case by case basis. Instead, they are issuing broad orders that affect both the healthy and the sick.

Cal. Health & Safety § 120225 uses the language “A person subject to quarantine …”. The quarantine laws where designed to quarantine an individual or a location, not an entire community or organization.

Cal. Health & Safety § 120235 makes clear that the quarantine powers of the local health officer were never intended to be a community lock down. Cal. Health & Safety § 120235 clearly states that “no quarantine shall be raised until every exposed room, together with all personal property in the room, has been adequately treated, or, if necessary, destroyed, under the direction of the health officer, and until all persons having been under strict isolation are considered noninfectious.”

Mark Meuser explains it as follows:  "The quarantine laws are clearly intended to be applied to individuals not to the entire county. The quarantine laws are designed to stop those who might have been infected from passing the disease onto others. Absent the local health officers finding that an individual has the disease or is likely to have the disease, California law does not give them broad authority to quarantine the entire county.  As such, it appears counties such as San Francisco that have issued broad shelter in place laws may be violating California law."

I also believe these shelter-in-place laws will cause more damage in the long run.  The virus will mutate, but since we hid from it, a large portion of the population will not build antibodies, or whatever their body needs, to combat the stronger version once this thing mutates.  Herd immunity, as pointed out by Dennis Jackson during last week's radio program, would have enabled the healthy to get sick with it, and in a couple weeks it would have been gone, and we would all be equipped with what we need in our body's immunity systems to fight it if it comes back stronger.

The liberal left, after accusing President Trump of mismanagement, or not following science, regarding this disease, have acted exactly as they have been charging their opponents.  They have ignored science with their draconian shelter-in-place mandates, and they have acted illegally, unconstitutionally, and in a manner that teeters very close to the line between liberty and tyranny, with their policies.  In the long run, more people will die, and liberty is being pushed closer and closer to its grave.

-- Political Pistachio Conservative News and Commentary

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