The Pushback Continues [Updated]

Around the country, citizens are fighting back against extreme and likely illegal shutdown orders. An inspiring example comes from Minnesota, where today all of the state’s Catholic bishops signed a letter to their congregants saying that they will not obey Governor Walz’s current order. Walz modified his shutdown order again today, but it still prohibits churches from gathering in groups of more than ten. A local newscaster commented:

These are excerpts from the bishops’ letter:

Given our willingness to coordinate with the Governor, we are especially disappointed that his most recent order (20-56) does not address both the vital importance that faith plays in the lives of Americans, especially in this time of pandemic, and the fundamental religious freedom possessed by houses of worship that allows our country to thrive. The Governor’s remarks today further underscored a failure to appreciate the role of our Church and other faith groups in serving the community.
The bishops of Minnesota are united in our conviction that we can safely resume public Masses in accordance with both our religious duties and with accepted public health and safety standards. We can worship in a way that reflects both the love of God and the love of our neighbors (cf. Mark 12:30-31). Therefore, we are giving our parishes permission for the resumption of the public celebration of Mass on Tuesday, May 26, which will give us time to be ready for the celebration of Pentecost on May 31. Parishes will be required to follow the strict protocols we have published for sanitation and social distancing and will have to limit attendance to one-third of the seating capacity of the church. No one will be obliged to attend, as the bishops of Minnesota will continue to dispense from the obligation to attend Sunday Mass.
We are blessed to live in a nation that guarantees the free exercise of religion. This right can only be abridged for a compelling governmental interest, and only in a way that is narrowly tailored to be the least restrictive means of achieving the desired end.

This is a correct statement of the law.

That is why a large majority of states now allow in-person religious services, including many states that had previously suspended in-person religious services. We think that the executive order issued last Wednesday fails this test. An order that sweeps so broadly that it prohibits, for example, a gathering of 11 people in a Cathedral with a seating capacity of several thousand defies reason. Therefore, we have chosen to move forward in the absence of any specific timeline laid out by Governor Walz and his Administration. We cannot allow an indefinite suspension of the public celebration of the Mass.

Two Twin Cities churches have sued Governor Walz, alleging that his shutdown order violates First Amendment freedom of religion. I wrote about that case here. It is brought by the Upper Midwest Law Center, on whose board I serve, and includes several small businesses as plaintiffs as well. On Tuesday, the churches will argue their motion for a preliminary injunction against Walz’s order in federal court. I am confident that they will win, as churches have done across the country in response to irrationally anti-religious shutdown orders.

On another front, the owner of several restaurants and bars in central Minnesota whom I wrote about here will be in state court on Friday to contest the order of that court shutting down his Albany, Minnesota restaurant. Attorney General Keith Ellison obtained the order improperly by appearing ex parte before the court, something that is not permitted unless it is impossible to give notice to the opposing party, which was certainly not true here. The Upper Midwest Law Center is involved in that case as well.

In Ohio, a state court judge held today that Ohio’s Health Department’s shutdown order exceeded statutory authority.

Such pushback against arrogant government authority is taking place across the country; I can’t begin to summarize it here. Perhaps the most surprising aspect of the coronavirus story has been the alacrity with which Americans have, sheeplike, obeyed government orders that made little sense and infringed on their most fundamental rights. For those who thought it can’t happen here, this passive compliance has been an eye-opener. Let’s hope the pushback continues and gains strength.

UPDATE: The Wall Street Journal Editorial Board has weighed in on the side of Minnesota’s discriminated-against churches:

Minnesota churchgoers were hoping for a reprieve Wednesday when Gov. Tim Walz, as expected, announced steps for easing restrictions on bars, restaurants, hair salons and barbershops starting June 1. But churches didn’t make the cut.
The churches are asking for equal treatment not special treatment, and the decision to reopen came only after efforts to work out an arrangement with the Governor were ignored. As a result, starting June 1, while a restaurant or bar can serve up to 50 people outdoors, churches remain restricted to gatherings of 10 or fewer—indoors or out. As the Becket Fund notes, these Minnesota churches plan to reopen with only 33% capacity, rigorous social distancing and hygiene protocols.

This will put Gov. Walz in an awkward position. Are the cops going to cite or arrest people for going to church? It is a dilemma entirely of his making, and he can’t say he hasn’t been warned.

Last month Attorney General Bill Barr reminded mayors and governors that there is no “pandemic exception” to the U.S. Constitution. The Sixth Circuit Court of Appeals ruled against a Kentucky lockdown biased against churches. And this week the head of Justice’s Civil Rights Division warned California Gov. Gavin Newsom that civil-rights protections forbid favoring secular over religious activities.

Gov. Walz might take a look at that letter. It’s hard to see how under any reading of the First Amendment the Mall of America can be allowed to reopen while churches must keep their doors closed to all but a handful.

Governor Walz will lose in court, probably in the District Court in Minneapolis and if not, certainly in the 8th Circuit Court of Appeals. Does he care? Probably not. He is a member of a political party that is anti-religious, and specifically anti-Christian, to its core. He will get credit with his base for taking an anti-Christian position, regardless of what the courts decide.

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