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If you were wondering whether the founding fathers premised liberties contained in the Bill of Rights on whether governors have declared statewide emergencies over an outbreak of disease, at least one federal judge says the answer is ‘yes.’
U.S. District Judge John Mendez, an appointee of President George W. Bush, ruled this week in Sacramento that California Gov. Gavin Newsom had the authority to ban church services and religious gatherings in order to ‘mitigate’ exposure during the coronavirus pandemic, KTLA reported.
Translated, that means, according to Mendez, the First Amendment’s guarantees of the freedom to assemble and religious practice are contingent on whether a governor has declared an emergency — though there is no language anywhere in the amendment or the Constitution itself granting governors such power.
The local TV affiliate added:
Pastor Jonathan Duncan had continued to assemble his congregation after the governor banned public gatherings in March despite warnings it was in violation of state and local orders. The church of fewer than 50 members said it was obeying federal guidelines to prevent spread of the virus.
Lodi police entered the church during a service attended by about 30 worshipers in late March and said they were defying the governor’s order. The church responded with a “cease and desist” letter sent to the city and argued they had a First Amendment right to gather and practice their religion.
“Constitutional rights cannot be suspended by a virus,” Dean Broyles, the church’s attorney, correctly argued at the time.
Nevertheless, local police posted a notice on the church that it is nonessential and its continued use constituted a public nuisance. In addition, San Joaquin County health officials warned the building’s landlord, Bethel Open Bible Church, that misdemeanor charges would be filed if religious assemblies continued.
KTLA noted that Duncan wanted to hold Palm Sunday services April 5 but could not enter the church because the landlord changed the locks. Also, police threatened to issue citations to any parishioner who entered the church.
In a statement, Duncan said he was disappointed in Mendez’s rule but vowed to continue fighting for a right he shouldn’t have to fight for — the right to freely practice his religion.
“It is time for pastors and religious leaders across the state to rise up and start pushing back against these draconian stay-at-home orders that completely fail to take into account the true essentiality of religion in our society,” he said, according to the local TV affiliate.
In its suit against Newsom, Lodi police, and county health officials, the church argued that the order was an unconstitutional abuse of power by criminalizing religious worship as people remained free to patronize retailers, liquor stores, pot dispensaries, and other ‘essential’ businesses.
But Mendez claimed in his ruling that argument missed the point because shoppers were going to those businesses to buy certain things, not to gather and commune with each other — a twist of logic that makes absolutely no sense, given the very specific language of the First Amendment.
The judge claimed that a more reasoned comparison would be to other businesses like movie theaters, gyms, and sporting events that were shuttered as well because people gathered at them.
Mendez also claimed that state and local stay-at-home orders are valid exercises of emergency police powers he said were established by U.S. Supreme Court precedence a century ago, allowing officials to promote public safety during a health crisis.
“During public health crises, new considerations come to bear, and government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society’s most vulnerable,” Mendez wrote.
Precedence is one thing, but using Mendez’s logic, all constitutional rights are subject to denial by governors who declare various emergencies. That’s not what the founders believed and that’s not what is written in the Constitution.
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