28 March 2020

Equating Church with a Hardees Drive Through: Insulting Virginia's Faithful and Violating the Constitution

Up until a few minutes ago, I was writing a blog post finessing the religion question, the Virginia Governor's Emergency Order 53, and its requirement that no more than ten people gather. Basically, I'd written a post talking about how none of the violations of "the right of the people to peaceably assemble" specifically included in the order are either about expressive behavior or class based. Therefore, while the order violates both the 1st Amendment of the US Constitution and Article I section 12 of the Virginia Constitution, the courts would let them get away with it under a rational basis test. The courts allow the government to do just about anything under a rational basis test. I opined that this was done intentionally because if the order included infringements on religion, media, or political activity it would be subject to strict scrutiny and as we all learned in law school, Strict in Theory = Fatal in Fact. Assuming the Governor wasn't that stupid, I was going to opine that the order was not meant to bar religious meetings.

Sure, I knew that someone from the governor's office evinced a stunning lack of constitutional knowledge and told a reporter that churches couldn't have more than ten people in a service. I assumed that was a one off from a person shooting from the hip and didn't reflect actual policy. Because there was no way the Governor would be pinned down espousing a position so far over the constitutional line as to be entirely indefensible. But then someone texted me yet another question about whether they will be prosecuted if they come together to worship God and when I said my opinion was that the Governor did not intend to ban them from their religious duties and obligations - surely not during Lent, surely not in the highest, holiest Christian season, surely not with an emergency order that would ban services during the holiest week of the year and Easter, the celebration of the resurrection itself - the person on the other side told me that the Governor had included it specifically in his FAQ about the order.

And here it is:

What about religious services? Can I still go to my church, synagogue, or mosque? 
 Virginians are strongly encouraged to seek alternative means of attending religious services, such as virtually or via “drive-through” worship. Places of worship that do conduct in-person services must limit gatherings to 10 people, to comply with the statewide 10-person ban.
I'll admit it. I lost my cool more than a bit when I read that. Never mind the serious constitutional line it crosses, the level of insult, ignorance, and arrogance in that FAQ is mindblowing. That answer equates going to church, synagogue, and mosque with going to Hardees. You can get all your business done at Hardess through the drive through window in five minutes that should be all you need to worship God, אדוני ,الله, or whatever the divine appellation is in your delusion.

Oh, and hey guys, maybe you can tell me and the rest of the 240,000 Catholics in Virginia how we're supposed to take Holy Communion virtually? Pretty sure the Orthodox Christians out there have the same issue. And, of course, the 200,000 Muslims will be happy to blow off that requirement that men go to the mosque on Friday. They'll be even happier to blow off Ramadan when it starts next month. No sweat. Of course, the Jewish faith allows worship wherever 10 men can gather, so they should be okay as long as they don't bring their wives and kids, because, eh, who needs them, אדוני only cares about men anyway. And Passover next month? I'm sure being denied their right to worship as a group won't cause any issues with that. Of course, we Christians never make all that big a deal over Easter. After all, it's only the day the Lord Jesus rose from the dead after serving as the sacrifice meant to save us from damnation through sin. No biggie. We can skip it when it comes by next month.1 

Look, obviously you don't believe or you have an academic belief that views religion more as social in nature. That's fine. I'd rather see you on board, but I'm far from a perfect Christian, Catholic, or person so I won't point fingers. Nevertheless, your disdain for the religious and inability to comprehend needs to stop at the end of your nose. Try to at least pretend to understand that the faithful have faith. This isn't just something they do to kill time while waiting for football, baseball, soccer, or cricket to come on the television. It's an expression of love for and loyalty to a compassionate Creator and Sustainer without whom there is no meaning in the universe.

It's a matter of vital importance. It's not a trip to Hardees. 

Constitutional Issues

Both the Federal Constitution and the Virginia Constitution recognize the fundamental right to be free from governmental interference in religion. The very first line of the 1st Amendment in the Bill of Rights guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" and in Virginia "No man . . . shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief." In other words, in the USA there can't be a law prohibiting the exercise of religion and in Virginia a person can't be stopped physically from acting in accord with his religion.

Those are nice words, but how do they play out in reality? The courts have two vectors whence they come to analysis in this sort of thing. The first is the fundamental rights analysis. The second is the specific religious rights analysis.

Fundamental Constitutional Right


When a law treads upon a fundamental constitutional right it is subject to a strict scrutiny standard. Strict scrutiny has a test that is sometimes listed as three prongs and sometimes two. Here's a fairly well stated version from Virginia case law:
Laws that affect fundamental constitutional rights, as we have seen, are subjected to strict judicial scrutiny. In order to satisfy such an examination, the law (1) must be a necessary element for achieving a compelling governmental interest. To be viewed as necessary, (2) the classification or infringement must be the least burdensome means available for attaining the governmental objective in question.  Mahan v. Nat'l Conservative Political Action Comm., 227 Va. 330, 336 (1984) (numbers and bolding added).
The second part is broken in two by some to require the law to be  (2a) "narrowly tailored" and to use the  (2b) "least restrictive means." I've got to admit I've always felt those two were redundant.

In any event, it is clear that practice of one's religion is a fundamental constitutional right and infringement would fall under this standard. As stated above, this standard is almost impossible to meet. The buzz phrase used when I was in law school was "Strict in Theory = Fatal in Fact."2

That's almost certainly true here.  The "least burdensome means available" section of the test is going to wreak merry havoc on the Governor's order. Look at this map of Virginia:

In case you can't read the legend, white = 0 infections and light blue = 5 or less. Shutting down religious services across the entire Commonwealth is far from the least burdensome means available to stop the spread of the disease. Perhaps the Governor might want to concentrate his efforts in Northern Virginia and the Peninsula region? Even if closing churches were somehow to be the answer (it's not), then closing all the churches where there are few or no outbreaks is not the least burdensome means. The least burdensome means would be isolating anyone who showed infection and quarantining those with whom she has had significant contact.


Thus, if the Governor wants his shutting down of religion to stand, he's going to have to go looking in the cases specifically applying to religion and find a standard there. As the Blaine Amendments are being pushed off the board as unconstitutional under the Federal Constitution, the standard that seems to be firming up is that if there is a general law applying to all it applies to the religious and religious organizations as well. Thus, murder is illegal so no matter how important you believe human sacrifice is, you can't carve a person's beating heart out of their chest to honor Huitzilopochtli. Nobody else can commit murder therefore you cannot either. More realistically, things like zoning laws apply equally. If an area is zoned for suburban housing no higher than two stories neither a church nor a Wal-Mart gets to buy up a block and build a ten story building. On the other hand, if there are grants available to build school playgrounds the government cannot exclude qualifying religious schools because they are religious. In the eyes of the constitution a religious organization can neither benefit from nor be denied things simply because it is a church. It must be treated just like anyone else.3

 However, this is problematic as well because the Governor has created favored classes. Emergency Order 53, Directive 5 establishes several places where more than ten people can be. Some of these (grocery stores) are obviously needed. Others (lawn and garden stores and pet stores) are marginal, at best. At least one is either just ridiculous or perhaps predatory behavior on the part of the Governor (liquor stores - all of which are owned by the Commonwealth).

The labeling of non-constitutionally protected businesses as "essential" creates people and locations that are favored while leaving the rest as disfavored. It's not terribly constitutionally problematic in relation to the other retailers. It is massively problematic if the government's policy is favoring other members of society while inhibiting churches and the religious.

The Governor's preferential treatment of certain entities over churches might have more oomph to it if the "essential retail businesses" were actually essential. Even putting aside the exception to the ten person rule for liquor stores, perhaps a third of the listed retailers are not essential: pet stores (buy food for Rover at the grocery), lawn and garden stores (it's not vital to trim your hedges), the retail part of gas stations (do you really need to buy that coke and twinkie?), electronic stores (not vital that you buy an iPhone 12), etc. Arguing that any of these deserve and require preferential treatment is a losing proposition. I have every faith that the consummate professionals in the Attorney General's office could find someone in their ranks who could do it with a straight face in a convincing tone of voice. They'd best pray for a pretty dim or biased judge though, because even if they can gloss over the rest of them, there's no way self dealing by declaring liquor stores "essential" passes muster.

But, you say, the courts can just throw out all of Directive 5 and the playing field becomes even again making the order legit. Most of those businesses could survive if they kept the number of people in their stores at less than 11. 

Nope. Look at Directive 9(c).4 "Nothing in the Order shall limit: (c) the operations of the media." And here we have the Governor specifically favoring one part of the 1st Amendment while disfavoring another. There's no condescending suggestions of drive-up journalism or that they could provide their constitutionally protected activity via YouTube (which they would be better set up to do than a church as it would merely be a variant of the job they do now over cable). Nope, you can have fifty people in the room if that's what it takes to do a press conference or the five o'clock news.

To my mind, that's more damning than the incongruity with the favored businesses. This is an example of the Governor deciding which parts of the Constitution are allowed to be exercised in Virginia. If churches, mosques, and synagogues can't have 11 people then there is absolutely no reason the press can. There is no reason for any press conference assuming Governor Northam has an 18 year old intern to tell him how to film and release statements on YouTube (or Facebook if you're desperate). That way the message would be delivered without putting all those people in one room and endangering them all. The same can be done for the nightly newscast. How many people does it take to live stream a YouTube video? Most of the streamers I've seen do it themselves. The really advanced ones have a guy or two to help out. As well, you don't need more than one announcer. They may need more than ten people to produce a show to put out over cable, but they're not guaranteed a particular medium. One announcer, one person running the streaming computer and maybe a person or two for odds and ends. There's no reason to have eleven people in any room for the announcing of the news to the endangerment of them all.

Ridiculous? Maybe. Is it as ridiculous as the First Church of Hardees the Governor shoved at us above? No.

The Governor is favoring the media and disfavoring religion (by specifically "prohibiting the free exercise thereof"). Could this be cured by removing the media's protections from the order? Maybe. Would any governor have the guts to do it? Unlikely.

What's to be Done?

It'll be interesting to see what happens this weekend when thousands of people go to church in defiance of the Governor's ban. I just don't see local sheriff's deputies going in to issue summons to everybody. And if they did, the courts are closed to non-emergency matters until at least 26 April 2020 so nothing would happen. And next week people will be back. When Easter rolls around there are going to be a lot of people who openly defy this infringement on their religion (probably the same for Passover and Ramadan).

Want to fight it in court? Issuing you a summons for violating the Governor's order is not a emergency and won't end you up in court for at least a couple months. On the other hand, a massive violation of the constitutionally guaranteed fundamental right to practice your religion seems like the kind of thing that screams "EMERGENCY" and therefore should be allowed by your circuit court per the order of the Supreme Court of Virginia. Filing a writ of prohibition to stop enforcement against people exercising their fundamental right to practice their religion might be the best way to go. 

If you go this route, hire the biggest bigwig attorney you can - preferably one with some smarts so he can put this argument together better than I have today on the fly. Expect the AG to send someone good at his job who will try to get your case thrown out or delayed until it bankrupts you or does you no good, or, failing both of those objectives, does the best flim-flam job he can while he tries to sell the judge some constitutional bottom land. They're not going to mess around with this because, as best I can tell, it's the most glaringly wrong thing in all the the orders and they don't want things to start unraveling so that they have to start defending all the *ahem* questionable things in them.


Unconstitutional things happen; they get corrected. I can live with the fact that the Governor has acted unconstitutionally. Heck, I had a blog post pretty much written which navigated around the unconstitutionality. Unconstitutional acts happen sometimes because of error, sometimes because of malice, and sometimes because of different understandings of basic principles. That's all a normal part of the process.

Telling believers that their religion is the equivalent of a Hardees drive through is insulting. Telling believers that they should be satisfied with watching on video is ignorant. Both are signs of arrogant behavior toward the religious people whom you believe are below you. This should never be a part of the process.

Somebody needs to fix this.


1  My apologies if I got something wrong about your faith. I've not studied other faiths in depth since I graduated college. My Arabic has deteriorated to pretty bad; my Hebrew is down to almost non-existent (never got much higher than minimally passable in Biblical Hebrew even back in the day - and, yes, I know I used the substitute rather than the name; it felt more respectful). Anyway, this screed relied upon my basic rememberings with quick checks on the web (after I calmed a bit) that seem to confirm them.

2  In fact, the only case I remember being taught in law school that passed strict scrutiny was a case where an African-American officer was denied a job in an undercover position that was to infiltrate a group of white skinheads and he sued.

 3  I've not gotten into the weeds enough to be sure if this is a refinement of or a substitution for the old Lemon test which I recall stated no law could  (a) encourage a religion,  (b) inhibit a religion, or  (c) get too entangled in a religion. I suspect it is a replacement of (a) and (b), per Trinity Lutheran, to a test of whether the religious organization is treated the same as everyone else. I think (c) still remains valid in some form at least inasmuch as the government can't force the religious to violate their core religious principals. Hobby Lobby.

4  As an aside, I find it disturbing to get "Directives" from the government of a Commonwealth with the motto "Sic Semper Tyrannis."

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