Church and State, Part 2: Civil Disobedience and Constitutional Rights Questions

Click here for Part 1 with biblical and historical perspectives from Martin Luther, Charles Spurgeon, and American pastors during the 1918 Spanish Flu (closest parallel). Part 2 below considers modern respected pastors and proponents of religious liberty who weigh in on the 2020 pandemic's restriction of church assemblies.

Note: GCBC has participated in a series of meetings and calls with Pacific Justice Institute, a group dedicated to legally defending churches. Ther topics have included: Reopening Churches Safely and Legally, Q&A on Your Religious Rights During COVID-19, Outdoor Church Services, etc. We will be consulting with them and others in these days. Here are some statements from them in resources they have made available to us:

Pacific Justice Institute Memo: Church Rights Amidst Bans of Mass Gatherings – California: “Where does the Governor derive the authority to take drastic actions like banning core First Amendment activities including church gatherings? California authorizes emergency declarations through the Emergency Services Act (ESA), Gov’t. Code §§ 8550-8669.7. Combating an epidemic is one of the specified reasons for issuing such a declaration. Gov’t. Code § 8558… In one of the leading cases interpreting the ESA, the California Supreme Court opined, “Thus, the Emergency Services Act makes clear that in situations of ‘extreme peril’ to the public welfare the State may exercise its sovereign authority to the fullest extent possible consistent with individual rights and liberties.” Macias v. State (1995) 10 Cal. 4th 844, 854…

Based on our more than 20 years’ experience litigating in the federal and state courts in California, as well as in many other states, we believe it is highly likely a court would defer to government officials in this crisis—at least in the short term—and uphold these bans notwithstanding the First Amendment… churches should be aware that failure to comply with an Executive Order under the ESA is a misdemeanor. Gov’t. Code § 8665. The penalties under that section are a $1,000 fine, six months imprisonment, or both. Slightly lesser penalties are prescribed for violation of local health directives, under Cal. Health & Safety Code § 120295…churches not yet subject to bans may be well served to limit the size of gatherings and become more reliant on home-based fellowships and gatherings. In many ways, this would be a return to the church’s New Testament roots.

There is reason to be concerned about governmental overreach during a state of emergency. As noted [in other cases], statute and precedent provide a basis for raising First Amendment arguments during this crisis. At the same time, it seems most likely that a court would uphold almost any shutdown order by the Governor during the present crisis as it relates to churches, at least in the short term… In order to help empower churches, PJI will soon make videos available on our website”iv

Alliance Defending Freedom training resource for Pastors: “The U.S. Department of Homeland Security has recognized your essential role… Clergy are listed under the OTHER COMMUNITY … ESSENTIAL FUNCTIONS section in the Cybersecurity and Infrastructure Security Agency (CISA) guidance [p. 16].v ADF is monitoring federal, state and local government policies, guidance and rules closely to consider the legal implications… prepared to take legal action to protect our Constitutional rights.”vi 3

Albert Mohler tracks legal concerns as he writes: ‘Still is government’s responsibility, in the defense of public health, to respect those rights articulated in the Constitution. The corresponding role of the church is to demonstrate love for God and neighbor by respecting the authority of the state when it requests we forgo, just temporarily, the assembly of the saints until it is once more safe to gather again. Nonetheless, the authority of the state cannot escape the thoughtful limitations of the Constitution… Every court in the country would agree that curbing the spread of a worldwide pandemic is sufficiently compelling to merit government orders limiting the gathering of Americans in large groups. So long as those restrictions are applied temporarily and fairly… Church and state should work together to exercise prudence in the face of this contagion… let our churches be known for the ministry and support they uniquely provide: care, comfort and calm. And may the government continue to protect the health and safety of citizens.’vii

Washington Examiner article: ‘“It’s not a violation of religious liberty for the state to use its police power towards social distancing,” said the Southern Baptist religious liberty advocate Russell Moore. “But it has to be consistently and fairly applied, and it can’t single out churches or religious organizations as opposed to other groups.” … in the Washington Post in early April, Albert Mohler…and religious liberty advocate Kelly Shackelford, said... “Asking houses of worship to briefly suspend large gatherings is neither hostile toward religion nor unreasonable…this is a time for all of us to exercise prudence over defiance.’viii

Richard Land, former head Southern Baptist Religious Liberty Commission: “In the last few weeks, social media and the internet in general have been replete with debates about whether or not churches should comply with government mandates to suspend worship services and related church group activities as the country seeks to stem the spread of the incredibly contagious coronavirus. Many have said, “Yes, we have an obligation to obey the civil magistrate for conscience sake” (Rom 13:7). Others have responded, “No, we have special freedoms and protections under the First Amendment, and our ultimate loyalty must be to Jesus, not the state!” Are Christians being good citizens by complying with the government’s attempts to protect the public welfare of the citizenry, or do we exercise our freedom of conscience and trust that God will protect us from the potential health consequences? Which option is a more winsome and appealing Gospel witness to a watching world?

Such discussions and debates concerning the interplay and interaction between Christians and civil government have been ongoing since the early days of the Christian church. After all, the Apostle Paul addressed this very issue in his letter to the church in Rome as early as approximately AD 58. Almost certainly addressing a question perplexing the Christ-followers in the capital of the Roman Empire, Paul informed them that the civil magistrate was “ordained of God” and that their divinely mandated purpose (Paul even calls them “God’s ministers”) was to punish those who “doeth evil” and to reward those who “do that which is good” (Rom. 13:1-7). The Apostle exhorts his Roman Christian brothers and sisters to obey the civil authorities “for conscience sake,” concluding, “Render therefore to all their due: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour” (Rom 13:7).

At the same time, Jesus teaches that our ultimate loyalty must be to God, not Caesar (Mark 12:17). In the book of Acts, the Apostles Peter and John illustrate the limits of divinely mandated civil authority when they were commanded to be silent and cease witnessing to Jesus crucified and resurrected for the sins of the world. When threatened in order to “cease and desist for preaching the gospel, the apostle replied, “For we cannot but speak the things which we have seen and heard” (Acts 4:20) and said, “We ought to obey God rather than men” (Acts 5:29)…The question is, does that paradigm apply in this particular instance? I think not. The state is not singling out churches and telling them and them alone to cease assembling for worship. They are banning all gatherings [while actually encouraging preaching online].

Second, the reason for banning assemblies is not ideological or theological, but is simply seeking to protect all citizens from serious physical harm… the state has a compelling interest in protecting the public safety and the churches should willingly comply with such government actions. What the church should be doing is exploring innovative ways to “do church” … Let’s not seek a needless confrontation with governmental authorities in order to demand the exercise of our “rights.” Instead, let’s heed our obligations and responsibilities to our neighbors as good citizens and not endanger their health and wellbeing. And let’s do look for the Lord to use this crisis to give us opportunity to expand our Gospel witness in new and innovative ways.”ix

Below blog was linked by Challies from April 18, 2020: Christians are struggling to know how to self-consciously live out God’s command: “Let every person be subject to the governing authorities” (Romans 13:1)… I don’t [believe in the U.S.] our government is perfect. We have passed and upheld laws that give permission for sin. Tragically, I don’t think everyone is treated fairly under the rule of law. Additionally, I’m suspicious that there’s legislation that violates the Constitution, or creates loopholes to existent laws.

Admittedly, there’s also regulations and ordinances that inconvenience my life. But in nearly four decades of living I’ve never had a law forced upon me requiring that I choose between God and man. For that I’m tremendously thankful! … the church isn’t a political party, policy maker, lobbyist organization, or an institution of checks-and-balances for the civil government. I’ve often been reminded of Jesus’ question to the man who wanted him to settle a legal conflict: “Man, who made me a judge or arbitrator of you?” (Luke 12:14). With perfect knowledge Jesus could have decided the dispute better than any civil court. But he deferred to the lawful authorities appointed to make such decisions…

It could be that the restrictions on public gatherings as applied to religious assemblies is unconstitutional. Personally, I expect challenges to be made in the judicial courts which is the appropriate place for those challenges to be made (see Acts 25:10-12) — not the court of public opinion. But the unconstitutionality of a law is not the same thing as an unbiblical law. In asking questions about civil disobedience we cannot conflate these two. Civil disobedience is not “We must obey the constitution rather than men,” it is “We must obey God rather than men.”

…This is a time when narratives are being spun and misinformation spread like wildfire — sensational headlines are so much more exciting than fact! But as Christians we must be concerned about the truth. For instance, I have heard over and over again that the… governor has forbidden Christian worship. Actually, the Governor has only restricted the number of people who can be present in a public facility. That’s an important distinction. In Kansas we’re not being prohibited from preaching the gospel, reading the Bible, praying together, or singing. We’re not even prohibited from having a public gathering. We are only restricted in how many can be present in our church building. I admit that limiting makes for a pastoral head and heartache since our whole congregation cannot legally gather in one place. But my point is simply that as those who serve the Truth we need to avoid sensational and misleading narratives …

The Apostle Peter is able to write with little qualification: “Fear God. Honor the emperor” (1 Peter 2:17). The Roman emperor — even if he is the wicked and persecuting Nero — is still to be honored by Christians. Further, inconsistency doesn’t delegitimize a government’s authority. I’ll admit, inconsistency in the application of executive orders is really frustrating. Yesterday, our Governor gave a qualified A-Z list (literally) of who is exempted from her restrictions — the church is not one of those exceptions. But simply because not everyone on the road is ticketed doesn't mean I can now lawfully speed. Our submission to the government doesn't depend on their political commitments, moral character, or consistency. Rather, we submit to all that isn't contrary to the Bible as the free children of God (Mt 17:26)

Fifth, we need to carefully have a heart-check. There are times when as Christians we need to disobey our governing authorities (see Acts 5:29). But it is only when they require us to be disobedient to God [clear biblical examples would be to stop speaking of Jesus, to stop praying (Daniel), to require worship of a false god (Daniel’s friends), to kill babies (Exodus midwives)]… For the Christian the only motivation for civil disobedience is a deep biblical conviction that obedience to man would be disobedience to God. x 

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

iv https://www.pacificjustice.org/about-us/

v https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastruc ture_Workers_4.pdf

vi https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/resources/trainingresources/care-in-the-midst-of-covid-19_mobile_v5.pdf?sfvrsn=5d3dd4bd_4

vii https://www.washingtonpost.com/opinions/2020/04/03/mandatory-social-distancing-is-not-threat-religiousliberty-its-essential-humanity/

viii https://www.washingtonexaminer.com/news/top-protestant-and-catholic-leaders-church-shutdowns-are-not-athreat-to-religious-liberty

ix https://www.christianpost.com/news/ask-dr-land-should-churches-obey-govt-on-no-church-services-duringcoronavirus.html

x https://gentlereformation.com/2020/04/18/some-thoughts-on-christian-civil-disobedience/