Sunday, November 29, 2020


 I have been deliberately avoiding saying anything about the recent Supreme Court decision (rightly) criticizing unrestrained restrictions of religious activities using the epidemic as excuse. One reason for that is that many of the things to which I might respond are, I think, not things to which I can easily respond temperately. I realized that I should not give direct responses to others when, reading something on the matter by a philosophy professor, the first words of evaluation that formed in my mind on reading it was the phrase 'brain-damaged delusional stupidity'. Best to avoid going down that road.

However, I did want to say something more general, about something which I think is very widely not understood, namely, that the reason the decision was right does not have to do with COVID but with the fact that the actions of certain governors on this point are a usurpation of an authority that is not theirs.

Let it be assumed: This is an emergency situation, and restriction on gatherings of any kind, including religious services, is an action that must be taken. This is not, as many of the anti-liberal critics of the decision have argued, the definitive point. No state authority has infinite power even in an emergency. And this is particularly true in a free society, in which by definition some of the governing authority belongs to the citizens themselves.

This authority is not and cannot be restricted to voting; all the major rights and freedoms of the citizens are relevant to this. All of the freedoms guaranteed by the First Amendment (and extended by the usual interpretation of the Fourteenth Amendment, and generally guaranteed by state constitutions) are forms of self-government. The free exercise of religion, freedom of speech and of publication, the right peaceably to assemble and to petition the government -- these are all powers of self-governance.

When we assume the need for restriction on religious gatherings, the next question is: Who is the primary responsible authority for overseeing this? And there is no question whatsoever: in a free society, in which freedom of religion is one of the explicitly guaranteed freedoms, the citizens who participate in such religious gatherings are. Governors and mayors can provide recommendations, help coordinate, etc., but the primary responsible authority for making sure that a church service takes reasonable precautions is the church and everybody attending. This is because religion is one of the ways in which American citizens are self-governing. Eating into this, even in an emergency, is usurpation of power and responsibility that belongs to the citizens.

This applies, of course, as well to peaceable assembly; the primary authority responsible for overseeing how to handle COVID restrictions for peaceable assembly, for protest or any other civic reason, is found in the participants. (My own view, which might not be upheld in courts, who tend to be quite deferential to state executives in emergencies, but which I think is actually necessary for a consistent understanding of peaceable assembly, is that the recent attempts of several governors and mayors to restrict Thanksgiving celebrations were blatant cases of state officials going beyond their authority to usurp authority that belongs to the citizens. Thanksgiving is a specifically civic festivity; Thanksgiving dinner with family and friends should be regarded as falling under the right to peaceable assembly, just like a protest.) All of the First Amendment rights protect forms of self-governance. And it is important to uphold the principle that state authority is not infinite even under emergencies, that in an emergency situation, the rights and authority of citizens do not evaporate.