Friday, March 12, 2021

Tennessee Bill Could Limit Unlawful Restrictions Placed On Churches During Emergencies

Rod's Comment:  This is one of those issues about which I honestly am not sure how I feel.  I guess that is why I make a poor pundit.  I often don't have certainty about an issue. Not everything is a case of black and white.  I see a lot of shades of gray. Sometimes my view develops over time and sometimes I even change my mind after reaching a first conclusion.  However, here is my thinking on the issue:

First of all, I believe the Covid-19 is a real and a serious health hazard. It is not just like the flu.  I wear a mask and take reasonable precautions.  I am not one who thinks wearing a mask is submission to government and wearing a mask marks me as someone who would willingly get in the boxcar. 

Secondly, however, I am bothered by the authority of the government to exercise the kind of authority exercised to close restaurants and retail establishments and bars and concerts and sporting events.  A reading of the right of the government to quarantine looks like it is a right to quarantine sick people, not healthy people.  However, enough scholars have argued government has this authority that I cautiously accept that assertion. Also, while I am a constitutionalist and a strict constructionist, the constitution is not a suicide pact. If to avoid a pending catastrophe, at times it may be necessary to take bold action and then determine the constitutionally of the action later, then I am OK with that.   

Thirdly, however, the authority of government to control religious activity or the power of religious institutions to control government action is different in kind than the power of the state to close a bar or sporting event.  The conflict between church and state is a different category than other conflicts that may seem similar. The First Amendment of the Bill of Rights recognizes this relationship between religion and state by stating, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  And, it looks to me like prohibiting church gatherings are, "prohibiting the free exercise thereof."

Fourth, however, this is the first time this situation arose.  Previously use of the power to quarantine was exercised against sick people.  During the polio scare of the 1950's pubic swimming pools were closed and there may be rare instances of where for health reasons, gatherings were prohibited but we have had nothing on this scale before.  This is the basically the first time we have had this situation.  If may never arise again.  If it does, it might be another hundred years before it does and it appears this period of government mandated quarantine is coming to an end.  If those who content the government exceeded their authority by closing churches have a case, let them take that case to court.  However, before they get far in the courts the ban on church gatherings will probably be lifted and the court is not very likely to consider a case in which the issue has already been resolved.

So, in conclusion,  this is one of those issues in which I would be in favor of "kicking the can down the road."  Put if off a year and see if there is still any passion around the issue. If not, then put it off until the issue comes up again. Not every issue has to be solved.  Sometimes, an issue can just be deferred and left for someone to deal with in the future.  I know that is not an inspiring "call to arms."  However, some issues can be deferred without any ill effects, especially when it is an issue that has resolved itself is unlikely to arise again anytime soon. So, send this bill to send to summer study.

Tennessee Bill Could Limit Unlawful Restrictions Placed On Churches During Emergencies 

The Tennessee Conservative – A new bill proposed by Representative Rusty Grills, from the 77th district, would limit the authority of county health officers in Tennessee if passed. 

On March 9, the Civil Justice Subcommittee voted to send the house bill forward to the full committee for another round of voting. The goal of the bill is mainly to keep the Tennessee Emergency Management Agency from imposing unlawful restrictions on churches during emergencies. 

A companion bill in the state Senate proposes the same thing. If passed, the bill “limits the present law authority of county health officers to order quarantines to protect the public health from an epidemic, and closures of public establishments by prohibiting county health officers from issuing an order that closes or limits the lawful operations of a church or religious organization and declaring any such order that it issues to be void and unenforceable.” (continue reading)

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