I’ve been a civil liberties lawyer my entire professional life. I volunteered on my first free speech and religious liberty case my second year of law school. I had absolutely no idea how to practice a case, but I could read and summarize cases for the real lawyers, and that’s what I did. In the 28 years since—in the hundreds of cases and controversies that followed—I learned and relearned a fundamental truth of legal argument: Judges and juries are human beings.
I’m not talking about the outright bias or corruption that occasionally haunts the halls of power. I’m talking about something more basic, perhaps more primal. At the end of the day, when a jurist issues an opinion or a juror votes to render a verdict, they want to feel like they did the right thing. They want to feel at peace with their decision. That’s why every single time that I reasonably could, I wanted to make arguments not just for liberty but for the value of liberty. I wanted to make arguments not just for my client’s cause, but also for my client’s virtue.
Yes, on occasion, civil libertarians can even represent Nazis and win, but even with the worst of clients a lawyer can and should make arguments for the best of liberties—including that liberty has a value that transcends a person’s use or abuse of that freedom.
Why bring this up now? Because one of the most important civil libertarian projects in constitutional law has been the effort to restore the Free Exercise Clause of the First Amendment to its rightful place in the Bill of Rights. In 1990, Antonin Scalia and the rest of the Supreme Court’s conservative justices ripped out the heart of the Free Exercise Clause, deciding in Employment Division v. Smith that free exercise claims would fail in the face of any “neutral law of general applicability.”
The practical result of the ruling meant that an expanding state would lead invariably to a religious retreat, an outcome at odds with the intent of the American founding and the text of the American Constitution. I do not believe it was any coincidence that this dreadful case was tied to an individual’s asserted right to religious use of a hallucinogenic drug (peyote) during the height of America’s war on drugs and during the height of one of America’s worst crime waves. Bad facts made bad law. The court could not see the virtue in freedom.
In the 30 years since that ruling, religious liberty advocates have done two things at once—filed cases that chipped away at Smith and expanded religious freedom protections under the Free Speech Clause while also patiently and persistently arguing for the immense value of free exercise in constitutional republic.
I can think of few things better calculated to undo this good work than reckless free exercise during a national pandemic. Yesterday, Florida sheriff’s deputies arrested Pastor Rodney Howard-Browne for violating a county order directing residents to stay at home except for “essential services,” and corporate church worship was not deemed “essential.” You may remember Browne from a previous edition of the French Press. He’s the pastor who declared that he wouldn’t close church because they were “raising up revivalists, not pansies.”
As my friend Casey Mattox, a senior fellow for free expression at the Charles Koch Institute, tweeted after Browne’s arrest, “This is how you get Employment Division v. Smith.” Like night follows day, irresponsible exercise of civil liberties all too often leads to the cultural and political devaluation of those liberties and—ultimately—to the suppression of those liberties.
And make no mistake, Browne’s attempt at free exercise was grotesquely irresponsible. Consider this story, about coronavirus rampaging through a choir in Washington state. While coronavirus had already hit the Seattle area, there were no cases in Skagit County, and there was no order in place prohibiting large gatherings. So a choir director held practice. What happened next was terrible:
Sixty singers showed up. A greeter offered hand sanitizer at the door, and members refrained from the usual hugs and handshakes.
“It seemed like a normal rehearsal, except that choirs are huggy places,” Burdick recalled. “We were making music and trying to keep a certain distance between each other.”
After 2.5 hours, the singers parted ways at 9 p.m.
Nearly three weeks later, 45 have been diagnosed with COVID-19 or ill with the symptoms, at least three have been hospitalized, and two are dead.
Stories like this are not unusual. A funeral in Georgia also had dreadful consequences:
Like the Biogen conference in Boston and a 40th birthday party in Westport, Conn., the funeral of Andrew Jerome Mitchell on Feb. 29 will be recorded as what epidemiologists call a “super-spreading event,” in which a small number of people propagate a huge number of infections.
This rural county in southwest Georgia, 40 miles from the nearest interstate, now has one of the most intense clusters of the coronavirus in the country.
With a population of only 90,000, Dougherty County has registered 24 deaths, far more than any other county in the state, with six more possible coronavirus deaths under investigation, according to Michael L. Fowler, the local coroner. Ninety percent of the people who died were African-American, he said.
Stories like this are reasons why Browne is highly unlikely to prevail if and when he mounts a religious liberty defense to the county’s case. He’ll almost certainly lose even under the most expansive religious liberty protections, including the strict scrutiny placed on state actions under Florida’s Religious Freedom Restoration Act .
In this case, bad facts hopefully won’t make bad law. Florida’s law is good, and it will likely be applied correctly without altering traditional doctrine to prevent Browne from continuing to transform his church into a menace to public health.
But Browne’s bad facts can do something worse than make bad law. They can undermine the public cultural and political case for free exercise. They break the social compact. America’s conception of ordered liberty requires government to safeguard individual freedom, but it also asks individuals to exercise those liberties responsibly. As John Adams famously declared, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”
Rodney Howard-Browne is certainly religious. What he did, however, was profoundly immoral.
The very day that Browne defied governing authorities and risked the lives of his congregation (and all those they encountered), there was a very different example of free exercise in action. Samaritan’s Purse, a Christian ministry led by Franklin Graham, was busy building a field hospital in Central Park:
In my experience, the Samaritan’s Purse field hospital is far, far closer to the beating heart of American Evangelicalism than Browne’s grandstanding recklessness. Acts of heroic compassion are par for the course in America’s Christian communities.
And that’s exactly why the collective Christian response to pastors like Browne should be clear and firm—he does not act in our name, and he does not represent our church. There are times when the defense of liberty requires condemning those who break the law.
Don’t think I didn’t notice …
Earlier today, just as I was putting the finishing touches on this newsletter, a number of friends forwarded me an Atlantic article by Harvard Law professor Adrian Vermeule arguing that conservative jurists should jettison originalism in favor of something he calls “common-good constitutionalism.” It’s a decidedly authoritarian vision of constitutional law that’s, in his words, “based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”
Take this section of the newsletter as a placeholder. I’m going to respond more fully to Vermeule’s argument later, but it represents a natural evolution of the arguments laid out in last summer’s exhausting, months-long legal and philosophical battle triggered by Sohrab Ahmari’s broadside, “Against David French-ism.” At its heart the debate is about the continued viability and worth of America’s liberal constitutional order and whether the American right is going to move (gradually or rapidly) toward a more authoritarian view of state power.
More to come, but for now, this sums up my feelings quite nicely:
One last thing …
We don’t have live sports, but thanks to ESPN, we will soon have The Last Dance. An epic story of the second-greatest basketball player of all time. Cannot. Wait.
Video still of Rodney Howard-Browne from YouTube.
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