So far, the Executive Branch and the vast majority of states and local officials have not transgressed their constitutional authority. Only a small handful of Governors and city councils have overextended their powers.
New Mexico Gov. Michelle Grisham amended her mass gathering ban to fight the spread of the coronavirus to include houses of worship.
Kentucky Gov. Andy Beshear put out a declaration before Good Friday stating that anyone caught attending a "mass gathering" in the state over Easter weekend would have their license plates recorded by state police and then forced into a two-week self-quarantine.
Even my own Governor, Roy Cooper, in North Carolina, has subverted Executive Order 121 and turned it into an Executive Overreach.
These Governors are clearly in the wrong.
Another abuse of powers is the local police department arresting several pro-lifers outside several abortion mills — citing they were breaking the social distance order and deeming their services as "non-essential." Yet, the pro-lifers were not congregating – and it's actually unlawful for law enforcement to force arbitrary rules that infringe upon American's First Amendment rights.
You see, in those occurrences, law enforcement is picking and choosing who they say has a right to assemble and who doesn't. That is limiting individual liberties because several of these local "shelter-in" orders are going beyond the least restrictive means to protect the public and violating religious interests.
The fact that our very own US Justice Department (at one point) sought to suspend habeas corpus to enact emergency securities during the coronavirus outbreak is an outrage. But, thankfully, that was quickly squelched. And instead, the DOJ came out in defense of several churchgoers in Mississippi who were fined $500 for attending a drive-up church service on private property.
Yes, the government is in the right to exercise its enumerated powers that reside over centralized oversight to the public health and well-being of Americans. But, there is no constitutional exception that authorizes Congress unrestricted permission to expand its powers and reach into the privacy of American citizens and strip them of their freedoms based on a "Pandemic Crisis." That would, of course, impinge on our First, Fourth, and Fourteenth Amendments, which deals with the Free Exercise Clause, Due Process, and Equal Protection.
In a time of quarantine, the federal government's primary role is supplying the states with extra supplies, building up the commerce, reducing certain restrictions on supplies, and lifting regulations to allow progress to be made with testing and treatments. But, when it comes to the federal government encroaching on self-governance, that is a big no-no!
That being the case, there are actually ample legal precedents, and common-sense laws that declare the health and safety of Americans is a priority function of sovereign states.
According to the Tenth Amendment, it clearly reserves the right for individual states to impose specific orders (within reason) to protect the health, safety, and general welfare of their residents. This was reinforced in the Supreme Court in 1824 with the Gibbons vs. Ogden case. The Employment Division v. Smith of 1990, is another Supreme Court case that ruled neutral laws can be lawfully executed to the general public, as long as they do not exclusively target a particular group.
What does that all mean? Well, it means that the government cannot enforce special restrictions that infringe upon a religious person and their religious activities. Like imposing criminal penalties from police officers standing outside the entrances of churches or at abortion mills. These sorts of enforcements are unlawful because they are singling out a particular religious institution that is exercising free speech and expression of religion.
Now, back to my main point in all of this. If the safety and well-being is the primary objective, and the scientific and medical data proves an infectious disease can be transmitted drastically by large gatherings – then religious groups should be the first to comply with these less restrictive measures. And as churches do so, they can play an integral role in assisting their communities and local governments throughout the country to stem the tide of Covid-19.
In many ways, religious groups have a unique opportunity during this quarantine to showcase themselves and look to lead the way so that others can know how to respond amid this crisis.
Presently, most of the religious institutions have complied with the "shelter-in" orders and taken to the Internet to continue providing religious services to their congregants. And what we see on both the federal and state level, is minor restrictions that are mainly centered around large gatherings, not the prevention to express and exercise an individual's First Amendment rights.
The truth is, the Free Exercise Clause is not a protective blanket that can be used to put people in harm's way. We are compelled to protect life, and during this quarantine, we may be giving up some privileges and having to sacrifice a few things, but just because churches are meeting online doesn't mean our civil liberties have been sacrificed.
There may be the temporary curtailing or halting of certain religious activities, namely Sunday worship in buildings, but that in no way means the restraining to exercise your faith.
Let me be clear, elected officials have no right to deem public worship services as non-essential.
That is why, if a person or a church believes their First Amendment rights have been violated, then they can refer to their state's Religious Freedom of Restoration Act, and there prove the government has substantially burdened their religious freedoms. Of course, that will vary state to state.
But what about churches that are choosing to have drive-up services on their campuses?
Well, there are a few challenges with this, but if churches are in compliance with the quarantine enforcement in their area, then the states need to be in compliance with these creative worship services. What is blatantly wrong and inconsistent, is to deem a local fast-food chain as an essential business (that can exchange money); and yet, not consider church services as essential and preclude them from tithing. That is direct viewpoint discrimination because it specifically targets and violates a person's fundamental right to assemble.
But, again, I strongly urge churches to evaluate their level of risk in their communities and with the highest degree of certainty — can promise churchgoers that they have taken precautionary steps that are in compliance with their state quarantine laws.
But you know what? We should be proud to witness how amazing so many of our churches and essential workers have been during this quarantine. The vast majority of Americans have remained in quarantine because we know how to self-govern ourselves and care for those around us better than the government.
Our religious freedoms are what made the United States so great, and now more than ever, we must pray for God's hand of mercy on our elected officials, and for the men and women who are treating people infected with the coronavirus.