Constitution, Church and the COVID-19 crisis

Photo by Travis Grossen, unsplash.com

Teton County’s Public Health Order #20-4 is among the most drastic in the country. It prohibits anyone from gathering who is not already “living in the same household.” It was issued only days after New York City Mayor, Bill DeBlasio, threatened to shutter permanently synagogues and churches that attempted to hold services.

In this context, it can hardly be argued that Teton County accidentally overlooked the constitutional problems that their order presented. Rather, they simply became the latest example of government officials willing to use force to deny the free exercise of religion and the right to assembly.

Of course, COVID-19 presents an unprecedented social crisis. Desperate times demand desperate measures. Many, especially the unchurched, are ready to blame and shame synagogues and churches for jeopardizing at-risk populations by stubbornly refusing to disband. But before we jump on the shame-wagon, let’s use the opportunity for some thoughtful conversation.

In the scramble to distance socially, a trinity of foundational principles is in play. First-Amendment freedoms are up-front and center. These seem in conflict with a second principle, to love your neighbor by social distancing. Last to be considered—if at all—is the corporate and corporal nature of human life.

We should really reverse this order. Before we can rightly weigh personal responsibility and first freedoms, we first need to observe that human beings are both corporal and corporate.

A man is more than a mind. Our bodies are a part of who we are. We are corporal. Furthermore, human beings naturally congregate. We are corporate. Go to any party and watch how people are not evenly distributed. There are knots and clusters of people with empty space between. As social beings we live life in groups—families, crews, classrooms and cities.

Photo by Ryoji Iwata, unplash.com

This is easily observed as a universal fact. But we rarely think of it as a necessary fact. That’s the first rub in our COVID-19 crisis. The concern of epidemiologists is to separate people in order to “slow the spread.” Bean counters can position people on paper exactly six feet apart. But this is not true to real life. The first thing we must do to meet the present crisis is to recognize that we are not merely working against people’s preferences. We are attempting to deny a fundamental force of human nature.

The force of law and social shaming can work in the short run. But, like stretching a rubber band, the farther it is stretched, the greater is the tension. Soon it takes enormous force just to hold people apart.

The second thing to recognize is that human togetherness is not an indifferent matter; it is fundamentally necessary for life. This principle is turned on its head when people are portrayed as walking petri dishes that only transmit diseases and have no positive value.

We readily see that, from the first moment of your life, you depended upon your mother’s womb. Twins in the womb are often found in embrace. Newborns are placed upon the mother's breast. Models that fail to take this into account lose their persuasive value.

NICU nurses know that babies thrive by human touch and waste away without it. They must find the right balance between a sterile, pathogen-free environment and “risking” the life-giving benefits of human touch.

Balance is the key word. When we talk of personal responsibility to love the neighbor, we can neither command total isolation nor irresponsible contact. In today’s climate of Scientism that is hostile both toward God and toward the human soul, the necessity of an ordered, bodily community is under attack.

Such imbalanced Scientism treats human beings as mere atoms that can be arranged and rearranged willy-nilly. Natural relationships are broken, and unnatural ones are imposed. The CDC’s recommendation that newborn children be quarantined from their own mothers is one such extreme example.

At the other end of life, we see an entire class of vulnerable people forced into solitary confinement. Since the earliest days of the COVID-19 crisis, nursing homes have forbidden families from visiting their loved ones. Not only does this mean that parents are dying alone and isolated from children and grandchildren, it also means that they cannot even eat together or visit with friends they have in the care facility.

At what point is the cure worse than the disease? We simply must recognize that there is a sliding scale between responsible bodily contact and irresponsible bodily contact. Both extremes should be avoided.

It is a risk to let any human being have contact with another person. When we allow nursing home staff to take that risk, but deny it to others, we are making value judgments about the relative worth of natural family bonds. And these judgments are by no means foolproof.

We have seen COVID-19 transmitted from patient to nurse and nurse to patient in spite of the most draconian measures. The fact remains that judgments must be made. Risks must be taken. The question is about authority. Who has the perfect judgment? Who has the absolute authority to make these myriad decisions?

That, finally, brings us to the First Amendment. The ideal—the way our social life is supposed to work—is that perfect knowledge of nature and perfect knowledge of God lead each individual to draw the boundary perfectly between responsible and irresponsible use of our bodies. But such utopian idealism is not the world we inhabit.

Through decades of the sexual revolution, authorities throughout the land have dissipated their credibility by assuring society that obviously unhealthy things are perfectly healthy. Not only does no person or institution have a corner on perfect judgment, our entire populace is divided and distrustful of one another.

So, in this divided and distrustful world, we have constitutions and laws that limit any single authority from having absolute power to impose its judgment. This is especially important when it comes to judging which establishments remain open and under what conditions.

Christians have good cause to question a secular government that designates liquor stores as “essential businesses” while closing churches as non-essential. This moral judgment is, in itself, a religious statement. And if the waiting room at the chiropractor has more people per square foot than a church sanctuary, who is being irresponsible?

First-Amendment freedoms to assemble and worship should not be unilaterally revoked if there is a responsible way to exercise them. The Religious Freedom Restoration Act is a good starting place for federal, state and local governments to work with the Church in finding a responsible sweet spot between draconian restrictions and responsible contact.

It seeks a balance between “compelling government interest,” and “least restrictive means.” Certainly, during the COVID-19 crisis, there is a compelling government interest to prevent irresponsible social contact. But is it the least restrictive means when Christians are forbidden to meet even in groups of 10, as the Teton County order dictates?

Responsible government officials will issue guidelines and encourage responsible boundaries while leaving the details to each local establishment. They are already doing this with everything from grocery stores to gas stations. Activities explicitly protected by our constitution should be no exception.

The governors of Michigan, Colorado, Texas and other states have already recognized this constitutional necessity. Teton County should follow them, rather than New York’s mayor.