WTE: Health orders should respect religious gatherings

Three weeks ago, today, this column praised Governor Gordon for declining to ban religious gatherings by law. Instead of power, he used persuasion—to good effect. But even while those words were being written, his order banning gatherings was being rewritten to single out churches for invidious discrimination.

Wyoming Statute 35-1-240(a)(iv), allows the department of health to “forbid gatherings of people” when the state health officer deems it “necessary to protect public health.” On March 19, the governor used this power in “Statewide Public Health Order #2.”

This Order prohibited “any planned or spontaneous event, public or private, bringing together, or likely bringing together, ten (10) people or more in a single room or a single confined space (whether indoor or outdoor) at the same time.” By this definition, ten people in a stadium and ten people in a phone booth are legally indistinguishable.

Therefore, the Order provided 12 exemptions. It never banned all gatherings as 35-1-240 allows. It banned some but not others. One exemption, however, rescued it from charges of discrimination. “Retail or business establishments, where more than ten (10) people may be present but are generally not within six (6) feet of one another,” were also exempted.

This exemption made the Order evenhandedly applicable to any business from commerce to the preaching of the Gospel. Unlike states that arbitrarily dictated some business as “non-essential,” Wyoming focused on objective measures to keep all business safe and legal.

It worked! Early predictions that Wyoming would suffer as many as 251 coronavirus deaths by June 1 have been reduced by 95 percent. By April 28, Governor Gordon held a press conference to roll out new health orders for reopening.

While May 1st brought substantial changes for gyms, restaurants and salons, the order about gathering (#2) remained unchanged except that counties could request a “variance.”

Then, a funny thing happened on the way to the re-opening. The following morning Platte county churches were singled out in an email from the health office. They were told that the county was writing a variance for them.

Ronald Reagan once quipped, “The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help.” On the day that the new orders went into effect, the churches of Platte County suddenly found themselves under a variance that was stricter than anything they had faced before.

It singled them out by name and “subject[ed]” them to nine mandatory provisions. People were “prohibited” free exercise. The government established worship practices with the words “must” and “shall.” Infractions were threatened with “criminal prosecution.”

Soon, this pattern was repeated in 14 counties*—many without even consulting the churches. Every “variance” was nearly identical—seemingly dictated from a single source. In Uinta County, at least, that source was Gordon's attorney general.

As recently as May 1, the governor was carefully avoiding any mention of churches. Now, just when every other service industry was being given greater room to operate, churches were singled out and worship was restricted. On May 13, 2020 this strident and discriminatory language was published in the governor’s “Fourth Continuation, and Modification, of Statewide Public Health Order #2.”

To be clear, nobody objects to the guidance. The language is objectionable for other reasons.

First, it is unequal and discriminatory. Auctioneers and meetings of Alcoholics Anonymous met in groups greater than 10 for six weeks without the requirement to sanitize the building between meetings. But churches are explicitly so required.

This is precisely what Attorney General, Bill Barr, warned against . The CDC Interim Guidance for Communities of Faith stipulates: “in accordance with the First Amendment, no faith community should be asked to adopt any mitigation strategies that are more stringent than the mitigation strategies asked of similarly situated entities or activities.”

Second, “The federal government may not prescribe standards for interactions of faith communities in houses of worship.” The First Amendment prohibits the government from establishing religious practices of any kind. For this reason, “CDC offers these suggestions for faith communities to consider and accept, reject, or modify, consistent with their own faith traditions, in the course of preparing to reconvene for in-person gatherings while still working to prevent the spread of COVID-19.”

State health orders should follow the lead of the Centers for Disease Control and not issue wording explicitly rejected by experts. When Governor Gordon first issued Public Health Order #2, it treated religious gatherings with equality and respect. As modified on May 13 and continued on May 27, it is discriminatory and disrespectful toward religion.

The state has neither the competence nor the authority to dictate the true worship of God. The Fifth Continuation of Health Order #2 is unacceptable and sets an unhealthy precedent. It needs immediate correction.

------------------------

* Links to the 14 County Variances:

• Big Horn, May 8
• Campbell, May 8
• Carbon, May 6
• Crook, May 8
• Goshen, May 5
• Hot Springs, May 6
• Johnson, May 7
• Niobrara, May 1
• Platte, May 1
• Sheridan, May 4
• Sublette, May 8
• Sweetwater, May 7
• Uinta, May 6
• Weston, May 6

Also published in the Wyoming Tribune Eagle on May 29, 2020.

Gatherings are an essential public good

Airforce Acedemy Chapel in Colorado Springs
Photo by Spring Fed images from UnSplash

The Quiet Place was one of the top ten films of 2018. It imagined a world where deadly monsters hunted by sound. Simple human acts like talking, laughing, or singing could bring swift and violent death. Survival in this world required absolute silence.

More than a thriller, The Quiet Place is a thought experiment. It explores the difference between mere survival and human thriving. Sound is a primary element of living life together. Raising a family, working together, and enjoying one another’s company are all noisy activities. What of these would you give up in order to survive?

The COVID-19 monster does not bring a certain, violent death. But it does bring death to some. The infection fatality rate (IFR) is still uncertain, even after six months of data-gathering. Is it one out of every 20, as first suggested? Or is it one in 5,000 or more?

Also unknown are the exact ways that infection can come. Early in February, a German study claimed that the virus could be transmitted even before the carrier showed symptoms. That study has since been discounted. Last week the CDC withdrew previous claims that the virus spreads by contact with contaminated surfaces. Neither of these claims has been proved, nor has either been disproved.

These three unknowns—IFR, asymptomatic transmission, and infection from surface contamination—are the unknowns that have put the world into a remake of The Quiet Place. The monster is out there. It can come for anyone at any time. But we lack clarity on what triggers its random arrival.

The impulsive response has been to make every place a quiet place. Invoking Wyoming Statute 35-1-240(a)(iv), the Governor has allowed the department of health to “forbid gatherings of people” on the statistical theory that it is “necessary to protect public health.”

“Gatherings” were defined as “any planned or spontaneous event, public or private, bringing together, or likely bringing together, ten (10) people or more in a single room or a single confined space at the same time.” This could be applied so broadly that ten people in the Super Dome are indistinguishable from ten people in a phone booth.

To compensate for unclear language, Public Health Order #2 exempted select facilities and buildings from the start. It was never a ban on all gatherings as 35-1-240 allows. It was a ban on the use of some buildings but not others. It forbids gatherings for some purposes but not for others.

Thankfully, amid a dozen specific carve-outs is one catchall. “Retail or business establishments, where more than ten (10) people may be present but are generally not within six (6) feet of one another,” are exempt from this Order.

This made sense of the Order. Had gatherings been defined this way in the first place, most of the exemptions would have been redundant and unnecessary. It serves to strike a balance between the cessation of all social activity and the commonsense precautions that mitigate the spread of a potentially deadly virus.

It also made the gatherings order easily defensible against First Amendment claims. Rather than shuttering some free association and free exercise while exempting others, the “six-foot rule” was evenhandedly applicable to all.

Most importantly, it worked.

Two and a half weeks after the order, new cases of COVID-19 peaked at 90 per day on April 9, and have not risen above 27 since. Eight days later, the number of recovered cases surpassed the number of active cases. Most importantly, predictions that Wyoming would suffer 134 deaths by June 1 have been reduced by a factor of ten. As of this writing, we stand at 12.

All this data prompted the state and the nation to begin a process of re-opening. On April 28, Governor Gordon held a press conference to roll out new health orders that would go into effect on May 1. While substantial changes were made to the two orders governing the service industries, the order about gathering (#2) remained unchanged except for a provision that allowed counties to request a “variance” for each local situation.

Then, a funny thing happened on the way to the re-opening. Rather than increasing the freedom to gather, multiple additional restrictions were imposed. It began in Platte County. The morning after Gordon’s press conference, churches were singled out in an email from the county health nurse. She told them that the county was working on a variance on their behalf.

Ronald Reagan once quipped, “The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help.” On the day that the new orders went into effect, the churches of Platte County suddenly found themselves under a variance that was stricter than anything they had faced before.

President Ronald Reagan

Those that had been holding multiple services of ten each, suddenly had the additional burden of sanitizing the building from top to bottom between each service. They had government instructions on mandatory masks, worship forms, and forbidden activities—all under threat of criminal prosecution.

Uinta county churches experienced the same phenomenon. After consulting with one another, churches had decided not to ask for a county variance. But without their knowledge or approval, a variance was sought anyway.

Language nearly identical to the Platte county language was sent from the state attorney general’s office to the county health officer. This language was pasted into a request to the state health officer and, voilá, by March 6 Uinta county churches were under the same extra measures as those in Platte.

For six weeks of COVID-19 restrictions, the governor had carefully avoided any mention of churches in deference to the Constitution’s protection of the free exercise of religion. Now, just when every other service industry was being given greater room to operate, churches were singled out and worship was restricted.

Churches in 12 other counties were similarly restricted before the governor published an updated order on May 13 that imposed these restrictions on the entire state. Three weeks ago, I wrote to commend the governor for his restraint. Today I plead with him to return to that restraint.

Governor Mark Gordon (left) Dr. Alexia Harrist (right)

Under the former language, Church and state worked together to protect the public health. Churches did their part without any threat of criminal prosecution. There was absolutely no reason to insert that threat and additional restrictions now.

Give guidance and data to support it. The churches will continue to act responsibly to protect public health as they have until now. Government commands about worship and threats of criminality will not serve the public health any better. It will only serve to undermine public confidence in the government’s respect for the Constitution.

I am not a constitutional lawyer and do not want to be. Others may take the state to court to litigate the letter of the law and precedents set by arcane case law. For myself, I want only to reassert the first principles that American laws and constitutions were meant to protect.

The true worship of God is an essential public good. It makes the difference between mere survival and full human thriving. For this reason, it is not merely to be tolerated, but encouraged.

Since the state has neither the competence nor the authority to determine the true worship of God, the best its officials can do is to protect the free exercise of religion and pray that its worshiping citizens worship rightly. Using state power to dictate religious doctrine or practice is always an abuse of state power and can only harm the public good.

WTE: Of Virtue and a Virtual Convention

The Wyoming Republican Party held part of its convention on May 9, 2020. I was present, sort of. The term, “convention,” means “coming together.” But digital platforms don’t actually bring people together.

Everyone who has ever participated in a Zoom “meeting” knows the technical challenges. More troublesome is the loss of real human contact and all the subtle yet vital interactions that make a real convention invaluable.

This is not a complaint. It’s a reality check. Zoom “meetings” will never be a viable substitute for actual meetings. We must keep this reality in mind so that we do not expect a virtual “meeting” to do what only a real meeting can accomplish.

Leaders in the Republican Party recognized this reality early on and responded with two strategies. First, they split the business of the convention into two parts—one that could be attempted virtually and one that could not. They decided that it was simply not feasible to debate resolutions, platform amendments and other deliberative business of the convention. This would have to be done in person, at a later date.

The time-sensitive nature of election to national offices forced convention planners to find a way to do other convention business online. However, even this could not be done without major rules changes. Robert’s Rules of Order simply never contemplated convening a convention that was never convened.

Changes to the rules and leniency in their enforcement were required even for the county conventions to elect delegates for the state convention. These rules changes were approved by national party leadership and put as the first item of business at every county convention. They were passed with little discussion. Few anticipated the effects of these changes.

At the center of the electoral process is the secret ballot. When people are together in one place, there are well-established and time-tested rules that allow ballots to be handled with near-complete accountability while also keeping the identity of each voter confidential.

But how can this be done in cyberspace? Counties that identified every ballot compromised secrecy. Those that emphasized secrecy compromised accountability. There exists no virtual way to maintain both.

The Credentials Committee of the convention is appointed to make sure that delegates are properly elected. Concerns arose about election integrity in three of Wyoming’s 23 counties. After carefully examining the claims of each, the committee concluded that irregularities at the Natrona County election prevented them from seating many of their delegates.

Approval of the Credentials Report is always the first order of the day, and usually uncontroversial. Not so last Saturday. A motion to amend the credentials report to seat the delegates was put on the floor and eventually adopted by the convention.

The Casper Star Tribune quickly posted an article titled, “GOP infighting culminates in attempt to block Natrona County from state convention.” This headline is the opposite of the truth. The culmination was that the GOP convention seated the delegates, giving them the benefit of the doubt.

Responsible reporting would have included the fact that the GOP spent three hours in good-faith discussion. Delegates wanted to know the nature of the rules violations and the reasons for them. They wanted to weigh the gravity of the irregularities against the gravity of not seating the delegates.

Coming to see the novel circumstances forced upon them by the novel coronavirus, they learned the extent that standards developed for in-person conventions must be adapted. Strict application would make the conduct of any business impossible.

Convention leaders then spent the next three hours finalizing and explaining the ballot that would be the main purpose of the convention. When the balloting was opened, technical difficulties were painstakingly addressed one at a time until an entire hour had passed with no additional issues raised.

Only then were the ballots counted. This count raised questions identical to those settled by accepting the results of Natrona County’s election. Did all the ballots cast make it into the hands of the counters? By successfully keeping the balloting secret, it was no longer possible to answer this question after the fact.

The moral of this story is two-fold.

First, it is time that we put to rest the fantasy that virtual “meetings” can ever be real meetings at all. All the wonders of technology can never replace human gatherings.

Second, every community ultimately depends on integrity and trust. Procedural rules cannot prevent every abuse. Nor can technical questions alone undermine confidence. Abuses are absent when every individual is acting with integrity and honor.

The Wyoming Republican Party Convention was a success because of the personal integrity, skill and good sense of the leadership that worked tirelessly to create the best and fairest environment possible under the circumstances. I thank God for their leadership.

This was also published in the Wyoming Tribune Eagle on May 22, 2020

Virtue and a virtual convention

The Wyoming Republican Party held the first session of its annual convention last week. I was present, sort of. The term, “convention,” means “coming together.” But in these days of the coronavirus from Wuhan, conventions strictly speaking are forbidden. It tortures language to say otherwise.

Over the past two months, practically everyone has learned a new term. It is the so-called “Zoom meeting.” Wyoming’s school children, from preschoolers to postgraduate students, have learned to navigate the Zoom platform. Others are using platforms like Digitell, GoToMeeting, and Skype.

These platforms all purport to bring people together without the cost of travel, the inconvenience of leaving home and now, the chance of contracting the novel coronavirus. These clear advantages, however, come at a high cost. Not the least of which is that they don’t actually bring people together.
Everyone who has ever participated in a Zoom “meeting” has known, personally, the shortcomings of this novel idea. In every such “meeting” there is always one participant who forgets to mute his or her microphone so that conversation is dominated by a barking dog, a crying child, or a flushing toilet. These are the comical kinds of Zoom shortcomings. They frustrate clear conversation and leave the meeting’s chair helpless to keep order.

The more serious deficiencies involve the loss of human touch. There can be no tapping your seat-mate on the shoulder, looking directly into his or her eye, or quietly discussing during a lull in the action. Lost are hallway conversations and the ability to eavesdrop on various candidates as they answer questions from other conventioneers.

These observations are not meant as complaints, but as reality checks. After two months of experience, we have all learned that Zoom “meetings” will never be a viable substitute for actual meetings. After all, by definition, a virtual “meeting” possesses some of the “virtues” of a meeting but is not a meeting in “in actual fact” (See Merriam-Webster). We must keep this reality in mind so that we do not expect a virtual “meeting” to do what it is not capable of doing.
Leaders in the Republican Party recognized this reality early on and responded with two strategies. First, they split the business of the convention into two parts: one that could be attempted virtually and one that could not. They decided that it was simply not feasible to debate resolutions, platform amendments and other deliberative business of the convention. This would have to be done in person, at a later date.

The time-sensitive nature of election to national offices forced convention planners to find a way to do convention business online. However, even this could not be done without major rules changes. Robert’s Rules of Order simply never contemplated convening a convention that was never convened.

Changes to the rules and leniency in their enforcement were required even for the county conventions to elect delegates for the state convention. These rules changes were approved by national party leadership and put as the first item of business at every county convention. They were passed with little discussion. Few contemplated the unintended consequences that would follow.

At the center of decorum for convention delegates is the secret ballot. Open voting on personnel matters can seriously hinder the preservation of healthy working relationships. When people are actually together in one place, there are well-established and time-tested rules that allow ballots to be handled with complete accountability while also keeping the identity of each voter confidential.

One of the casualties of a virtual “meeting” is that those rules must be modified. Depending on how the rules are modified, confidentiality can be lost, or ballot integrity compromised. There exists no virtual way to keep both at the highest standards. That reality dominated the day.

Joe McGinley, Natrona Chairman

The Credentials Committee met the previous day to verify the results of 23 county elections. At that meeting, objections were raised about the elections at three of them. After hours of testimony and discussion, the Credentials Committee judged that irregularities at two of the counties were within acceptable bounds, but that the Natrona County election was not. On the narrowest of votes, it decided to report that those delegates are not seated.

Approval of the Credentials Report is always the first order of the day, and usually uncontroversial. Not so last Saturday. Immediately, there was a motion to amend the credentials report to include the delegates disqualified by the committee.

This motion forced the convention to take up deliberative business—the very thing that virtual “meetings” are most ill-equipped to do. After three hours of cumbersome debate and heroic leadership by the chair, the motion was adopted.

The Casper Star Tribune quickly posted an article titled, “GOP infighting culminates in attempt to block Natrona County from state convention.” This headline is the opposite of the truth. The culmination was that the GOP convention seated the delegates giving them the benefit of the doubt.

Responsible reporting would have included the fact that the GOP spent three hours in good-faith discussion. Delegates wanted to know the nature of the rules violations and the reasons for them. They wanted to weigh the gravity of the irregularities against the gravity of not seating the delegates.

Many began to see that, under the coronavirus circumstances, the scrupulous standards of years past were not possible. Some even concluded that strict adherence to standards written for in-person conventions, would prevent even this state convention from conducting the business of the day.

After that vote, the convention spent the next three hours finalizing and explaining the ballot that would be the main purpose of the convention. Every question that could be asked was asked multiple times.

When the balloting was opened, technical difficulties were painstakingly addressed by email and voice for more than an hour. Only after another hour had passed with no additional technical issues raised were the final tabulations made.

In the highest irony of the day, the announcement of election results brought questions identical to those raised about Natrona County’s election. Did all the ballots cast make it into the hands of the counters? Or, were some possibly lost? Once again, the good faith efforts to maintain a secret ballot made it impossible to answer this question to the satisfaction of everyone.

Frank Eathorne,

State GOP Chair

The moral of this story is two-fold.

First, it is time that we put to rest the fantasy that virtual “meetings” can ever be real meetings at all. God made us bodily people for a purpose. Even the wonders of modern communication can never substitute for being face to face with teachers, co-workers, family or party. I am absolutely longing for the second session when the Wyoming GOP can actually meet in Gillette.

Second, every community ultimately depends on integrity and trust. No number of procedural rules can ever compensate for a lack of good faith. Conversely, no number of technical glitches can undermine confidence when every individual is acting with integrity and honor.

That is why I count the Wyoming Republican Party Convention to be a success in the face of high challenges. I, personally, know the people who worked tirelessly to create the best and fairest environment possible under the circumstances. State GOP leaders are people of integrity, skill, and good sense. I thank God for their leadership.

WTE: As the state opens for business, churches have a role

All three COVID-19 orders from Wyoming’s department of health were updated last week. For the first time since the beginning of the crisis restrictions, were eased. But there was no mention of churches.

In fact, from the first health order to the present, houses of worship have never been mentioned. This omission is no accident. Despite pressure both to restrict and to exempt churches specifically, Governor Gordon has adamantly remained silent.

However, a direct question about the status of churches was asked at the April 28 press conference. This forced the issue. Still, rather than address the question himself, Gordon deferred to Dr. Alexia Harrist, the state health officer.

Harrist answered. “You have all seen the orders, that there is nothing specifically addressing churches or other places of worship—although certainly order number two, which limits gatherings to less than ten, does apply to all types of situations, including religious gatherings.” Even without using the word “church,” this answer seemed to break the silence.

Immediately, the governor followed up by emphasizing that he has always emphasized personal responsibility over any “shelter in place” orders. He said, “we continue to convey that same sense of responsibility to our faith leaders to make sure that they don’t put their congregations in any kind of peril.”

Anyone looking for a clear word on the subject was left unsatisfied. Shouldn’t the opening of businesses that involve physical touch (hair, nail and massage establishments) mean that worship restrictions are likewise eased? If not, why not?

When these questions persisted, the governor arranged a teleconference with pastors around the state. After a brief opening statement, he allowed ample time for clarifying questions. The discussion helped us to appreciate the extremely fine line that he is walking.

The specter of death hovers before us. Emotions are raw and the long-term stakes to America’s economy and Constitution are extremely high. In this atmosphere, the governor must not only protect the citizens of Wyoming, but be perceived as protecting them. This is played out on a stage where there are wildly different opinions about what this should look like.

Meanwhile, Attorney General Bill Barr is publicly saying that the Constitution is not suspended in times of crisis, and has directed his department to “be on the lookout” for coronavirus orders that violate it. He has also filed two Statements of Interest in cases where church worship was restricted.

These considerations are behind Governor Gordon’s omission of churches from his health orders. The state can advise churches on healthy practices but cannot forbid the free exercise of religion. This explains why the governor put such stress on personal responsibility.

I believe his emphasis is well-placed. Every pastor I know feels as protective of his congregation as he does of his own family. Not one of them would willingly imperil a single soul. This concern naturally leads them to inform themselves on physical precautions—especially for their most vulnerable members.

As a leader of the Wyoming Pastors Network, I can assure the governor that churches share his deep concern not only for the wellbeing of members, but for every citizen.

Religious leaders are also eager to honor and respect authority. They believe that God Himself has placed people in government in order to facilitate our life together. People like Dr. Harrist, who are helping Wyoming to move forward responsibly, are gifts from God. They and their wisdom are received with thanksgiving.

From that foundation of respect and love, the churches of Wyoming are in a unique position to help lead Wyoming through the process of reopening. During this process, there will be thousands of discretionary details that will fall to individual citizens, businesses and churches. Churches should warn against the temptation to demonize those who decide differently.

They can also lead by example. Churches, like all communities, are not all the same. Hollywood’s depiction of congregants sitting shoulder-to-shoulder is rarely realistic. More often there are a few dozen people sitting in a sanctuary that could seat ten times more.

Most of Wyoming’s churches, can comply with CDC safety protocols without breaking a sweat. Others can implement the guidelines with less draconian adjustments than the cancellation of in-person services.

Governor Gordon has granted specific exemptions for health care—both physical and mental—and has given protocols to help them serve people safely. He has every reason to believe that these same protocols can guide churches as well.

Some will find that these guidelines enable them to re-establish worship quickly. Others will keep congregants out of their buildings for a while longer. Each has a unique situation and a different set of concerns.

Community-mindedness made Wyoming one of the safest states during the crisis. The same love and respect should characterize our reopening.

Also published in the Wyoming Tribune Eagle on May 8, 2020.

It’s high time for an investigation into the beef packing industry

It’s that time of year when calves can be seen frolicking in Wyoming’s pastures. For most, they are merely cute. But for ranching families, calving season is an annual gift from God to provide for another year.

Agriculture adds $2 billion to Wyoming’s annual economy. It is our third-largest industry and, also the oldest. Ranching brought cowboys to Wyoming before Yellowstone was made a National Park in 1872, or the first oil well was drilled in 1884.

Cattle cover nearly half of Wyoming’s private land, with 1.32 million head. The cattle industry feeds 11,000 families. One typical family in southwest Wyoming runs 240 head on 2,500 acres to support a half-dozen people.

For ranching families, disruption of the industry doesn’t stress cows or faceless corporations, but people. Of course, every industry has been hurt by the virus from China. But the cattle industry’s problems are magnified by underlying injustices stretching back for years.

meat packers in Lexington, Nebraska

On May 5th, Bridget Hill, Wyoming’s attorney general, joined with eleven beef producing states to send a letter to Bill Barr, head of the U. S. Department of Justice. It asked for an anti-trust investigation of the beef-packing industry. The following day, President Trump added his voice in support of it.

For the average consumer of beef, it may be difficult to understand how ranchers can be in trouble when the price of beef at the grocery store has spiked. Average consumer prices nearly doubled between March 2019 and the March this year. During the first week of April, boxed beef prices (the cost that retailers pay to the packing plant) increased by 25% while consumers saw a package of ground beef increase from $3.79 on April 2, to $4.96 by April 9. That’s more than a 30% increase in one week.

But, while beef is skyrocketing at the check-out line, ranchers are being squeezed at the sale barn. Since January, the market for butcher cattle has dropped almost 20% below the five-year average. Nonie Proffit, an Evanston rancher, explains that lower prices mean that a family has to run more cows to make ends meet. Operations unable to handle more than 200 head will likely lose money.

With prices at the sale barn down by 20% and prices at the grocery store up by 100%, who is raking in the profits? According to the letter addressed to AG Barr, “the four largest beef processors,” which control 80 percent of U. S. packing facilities, “have achieved sizeable profit margins.”

In a fair free-market environment, rival packers compete to buy cattle from the ranchers—driving up prices at the sale barn. These same rivals then compete to sell their products by increasing quality and lowering prices to the retail outlets.

But when only a few control the market, “firms can engage in tacit—or even express—collusion, providing artificially low prices to suppliers (e.g. farmers and ranchers) and inflating prices to consumers,” the letter explains. That is why it asked the Department of Justice to investigate.

This is not the only unfair practice. Two other federal laws are also in play.

The “Packers and Stockyard Act” of 1921 prohibits meat-packing corporations from owning livestock and thus, manipulating the price at the sale barn. Despite this, giants like Cargill, Tyson, National Beef and Swift effectively own feedlots filled with cattle being fattened for slaughter.

In January 2020, the USDA proposed several rule changes to address these loopholes, but by that time, the coronavirus was already on the loose. When it hit the beef packing industry, the sudden glut at the packing houses, amplified a market ripple into a tsunami.

Imported beef weakens the market further. With less stringent quality control, foreign-raised and foreign-butchered beef is cheaper. If that’s what the consumer wants, fine. But clear “country of origination” labeling laws have not been enforced since 2016. Loopholes enable imported meat to be sold as “Product of the U.S.A.” merely by repackaging it on American soil. This both deceives the consumer and hurts the rancher.

Every Wyoming citizen should be more aware of the challenges that face our ranching families. They are our neighbors and the backbone of our state. When we support their calls for the enforcement of federal laws, we are not only helping 11,000 families, we are also supporting Wyoming’s entire economy.

Consumers can also support ranchers by paying more attention at the meat counter. Read the fine print and learn which companies are actually selling American beef processed in American plants.

Better yet, go in with a few people and buy a locally raised beef for your freezer. Bypassing the meat-packing giants will give you better meat at a lower price. It will also give a higher price to your local rancher and support our local, custom meat processors. It’s a win-win for Wyoming.

As the state opens for business, churches have a role

Photo credit: Nagesh Badu, unsplash.com

Updates to all three COVID-19 orders from Wyoming’s department of health were issued this week. They represent the first time since the beginning of the crisis that restrictions were eased. From the issuance of the first order on March 19, 2020 through the continuation of all three on Friday, May 1, houses of worship have never been mentioned.

This omission is no accident. Governor Gordon has been pressured both specifically to restrict churches as well as specifically to exempt them. Clearly, the governor does not want to do either.

However, last Tuesday (April 28, 2020), a direct question from Jim O’Reilly (24:30) of Bigfoot 99 radio forced the issue. Even then, rather than address the question himself, Gordon deferred to Dr. Alexia Harrist, the state health officer.

Harrist answered. “You have all seen the orders, that there is nothing specifically addressing churches or other places of worship—although certainly order number two, which limits gatherings to less than ten, does apply to all types of situations, including religious gatherings.” She went on to say, “It is still a concern, having large numbers of people together in one place. Having close contact with each other is, unfortunately, a very good way to spread this virus. And so, we need to be extremely cautious before taking steps to do that.”

Dr, Alexia Harrist (left), Governor Mark Gordon (right)

Immediately, the governor followed up by commending the responsible way that religious leaders around the state have acted. He continued, “We started this order with the expectation that people in Wyoming would take responsibility for their actions. We didn’t have to issue a ‘shelter in place.’ And we continue to convey that same sense of responsibility to our faith leaders to make sure that they don’t put their congregations in any kind of peril.” Then, once again, he reminded the assembly that “we did not separate out anything specifically with churches.”

This exchange was troubling for many people of faith around the state. Some wanted him to say more, others thought he said too much. When these concerns were conveyed to the governor, he arranged a Friday teleconference with pastors around the state. He gave some opening remarks and allowed ample time for clarifying questions. The discussion helped us to appreciate the extremely fine line that he is walking.

The specter of death hovers before us. Emotions are raw and the long-term stakes to America’s economy and Constitution are extremely high. In this atmosphere, the governor must not only protect the citizens of Wyoming but be perceived as protecting them. This is played out on a stage where there are wildly different opinions about what this should look like.

Attorney General Bill Barr

Meanwhile, Attorney General, Bill Barr, recently directed U. S. attorneys around the country to “be on the lookout” for coronavirus orders that violate the Constitution. The U.S. Department of Justice has filed a Statement of Interest in just such a case regarding a church in Mississippi. Barr is reminding governors that the Constitution is not suspended during a time of crisis.

The First Amendment, in particular, has guided Governor Gordon away from issuing any direct orders to churches. Dr. Harrist, speaking as an epidemiologist, can advise churches to find alternatives to in-person worship services, but as an officer of the state, she lacks constitutional authority to go beyond that. This explains why Governor Gordon put such stress on personal responsibility.

I believe his emphasis is well-placed. Every pastor I know feels as protective of his congregation as he does of his own family. Not one of them would willingly imperil a single soul. This concern naturally leads them to inform themselves on physical precautions—especially for their most vulnerable members. Anyone who would accuse a church or a pastor of being loveless or careless is fanning flames of hate without any basis in fact.

As a leader of the Wyoming Pastors Network, I can assure the governor that his confidence is well-placed. Churches share his deep concern for the well-being of every Wyoming citizen.

Religious leaders are also eager to honor and respect authority. They believe that God Himself has placed people in government in order to inform and strengthen our communities for life together. People like Dr. Harrist, and everyone who is helping Wyoming to move forward responsibly, are gifts from God. They and their wisdom are received with thanksgiving.

From that foundation of respect and love, the churches of Wyoming are in a unique position to help lead Wyoming through the process of reopening. The first thing to notice about churches—as about all our communities—is that one size does not fit all.

Religious gatherings are not uniform—far from it. In the movies, worship is depicted as uniform congregants packed in pews shoulder-to-shoulder. Occasionally this is true, but more often there are a few dozen people sitting in a sanctuary that could seat ten times more.

With the goal of preventing “large numbers of people together in one place, having close contact with each other,” most of Wyoming’s churches can comply without breaking a sweat. Others can implement CDC guidelines with less draconian adjustments than the cancellation of in-person services.

Governor Mark Gordon
April 28, 2020

Governor Gordon has no interest in preventing churches from establishing protocols that follow CDC guidance. He recognizes the necessity of a wide range of services for the physical and spiritual well-being of Wyomingites. For this reason, he has given protocols designed to help them serve people while remaining as safe as possible. These can guide churches as well.

In all these cases, the ten-person gathering limit is waived due to building size. Big box stores and small mom-and-pop stores remain able to serve the public by being mindful of the ratio of people present to the available floor space.

Arbitrary numbers are best translated into some fraction of maximum occupancy. Since every public building already has a maximum occupancy dictated by fire code and posted on the premises, this can serve as an objective guide. Wyoming’s way forward might be facilitated by guiding the proprietors of any establishment to limit occupancy to some percentage of that number. Such guidance can be easily understood and uniformly applied by changing the percentages as we move through the different phases of reopening.

It is not only religious leaders who care about the community. Every business owner and manager does as well. The most important step that Wyoming can take in the work of reopening is to extend to one another the courtesy of mutual respect.

Religious leaders have a vital role in this regard. As Wyoming opens up for business, there will be thousands of discretionary details that will fall to individual citizens, businesses and churches. In every case, there will be differences in how those decisions are made. The temptation is to condemn those who come to a different decision. Churches can warn against this temptation.

Some will find protocols that enable them to follow CDC guidance while quickly re-establishing worship. Others will keep congregants out of their buildings for a while longer. Each has a unique situation and a different set of concerns. Either way, we can all treat one another with respect and charity.

WTE: The Supreme Court corrected itself; there’s still more to be done

Evangelisto Ramos was convicted of murder by a split jury (10-2). While 48 states and all federal territories require a unanimous verdict, two states do not. During the Jim Crow era, Louisiana (1898) and Oregon (1930) dropped that requirement.

This was an intentional move to deny the rights of racial minorities. Louisiana’s Supreme Court recently admitted that “the nonunanimous jury verdict system in Louisiana was created for the invidious discriminatory purpose of minimizing or canceling out the voting power of black jurors and to deny African-Americans meaningful participation in the institution of jury service.”

Last week, the U.S. Supreme Court (SCOTUS) overturned Ramos’ nonunanimous conviction. Justice Gorsuch wrote for the majority. He began by examining British common law reaching back to the 14th century. He showed that through all of America’s history, in almost every jurisdiction, this standard has been consistent. “Trial by jury” includes a unanimous conviction, or it is not a jury trial at all.

Justice is not subject to majority opinion. It is known in the soul of every human being. So, the jury is not a democracy, but twelve independent people—each of whom has the solemn duty to convict only upon evidence “beyond a reasonable doubt.”

All nine justices agreed on this. So, why has it taken 122 years for Louisiana’s law to be overturned? The answer to that question is found in a strange Supreme Court decision that’s 48 years old.

In Apodaca v. Oregon (1972) the same activist court that handed down Roe v. Wade, the most divisive and poorly argued opinion since Dred Scott, also produced a tangled decision concerning a man convicted by mere majority.

Four justices on the 1972 Court wanted to overturn the nonunanimous jury laws as violations of the right to “trial by jury.” Four other justices argued that a jury trial “no longer” requires a unanimous verdict.

The tie breaker was Justice Powell. He agreed that a unanimous verdict is required at the federal level, but that the Fourteenth Amendment does not apply this provision of the Bill of Rights to every state. His strange opinion has stymied legal scholars for five decades.

Even though every justice condemned the Apodaca opinion, only six of the nine were willing to overturn it. The doctrine of stare decisis (“let the decision stand”) was the central issue.

Justices Roberts, Alito and Kagan were simply unable to bring themselves to overturn Apodaca’s precedent—no matter how obviously wrong it was. Gorsuch, however, wrote, “stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.” How can the Court ever correct any mistake if stare decisis makes every past opinion untouchable?

Gorsuch concludes, “Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory.  But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

Justice Clarence Thomas concurred with the majority’s judgment but dissented from its reasoning. For him, stare decisis, should not be applied to Apodaca’s tortured opinion, but to the Court’s unanimous and repeated definition of “trial by jury.” He reasons that since SCOTUS has ruled repeatedly for 233 years that a unanimous verdict is required for conviction, there is no reason to waste time by parsing the phrase, “trial by jury.”

His point is to correct a misunderstanding of stare decisis that, “does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.”

The second point of Thomas’ opinion is to explain that the real power of the Fourteenth Amendment is not the “Due Process Clause,” but the “Privileges or Immunities Clause.” He argues, “a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property,” does not adequately protect the rights of citizens.

The Privileges and Immunities Clause is much stronger than the right of due process. It guarantees, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities [i.e. rights] of citizens of the United States.” He argues that the Court has played a shell game of finding rights under “Due Process,” which are properly grounded in every citizen’s “Privileges and Immunities.”

When “Privileges and Immunities” are ignored and replaced by “Due Process” citizen are robbed of constitutional rights. This erroneous theory, argues Thomas, lies behind “many incorrect decisions,” including, “Obergefell v. Hodges, (2015); Roe v. Wade, (1973); Dred Scott v. Sandford, (1857).”

Justice Thomas deserves high praise for pressing his fellow justices to give attention to the full rights of American citizens.

Also published in the Wyoming Tribune Eagle on May 1, 2020.