Shelter in Place Orders- Things of Kings

By KrisAnne Hall, JD

The current application of State and local authority to mandate the closure of businesses and require the people to restrict their activities to a list of government approved venues under the threat of force and punishment, is antithetical to everything America was built upon.  These orders are arbitrary, deny due process, and are rife with unbridled discretion. 

Arbitrariness is the quality of being “determined by chance, whim, or impulse, and not by necessity, reason, or principle.”  A shelter in place order that requires places of worship to close, where a finite number of people attend for less than a few hours once a week, but then claims that Wal-Mart and liquor stores, where a limitless number of people come and go every day, all day may remain open, is completely arbitrary.  Where is the science, where is the reason that says that people sitting in a church are more susceptible to a virus than those who go to Walmart or the liquor store?  The answer is simple, it doesn’t exist.  The decision to close the church, a shoe store, or private vacation rental property, and not Walmart is based upon a whim and an impulse, not facts or reason.  By legal standard a government’s actions are arbitrary and capricious when they are founded upon unreasonable grounds or made with without any proper consideration of circumstances, deny due process and prejudice substantial rights.  Therefore, the government’s exercise of authority in these Shelter In Place Orders to pick and choose which businesses can stay open and which cannot is by definition arbitrary and capricious.

A government’s arbitrary determination on which businesses can stay open and which ones cannot is tantamount to a regulatory taking.  There is no warrant issued for the seizure of this property. No mechanism for the business owner to challenge the government’s arbitrary determination to close their business.  When the government threatens a business owner or forcibly demands that business close, the business owner is being effectively deprived of the economic value of its property and the principal private use of that property.  Whenever a government takes private property for public purpose, both State and US Constitutions require that business receive proper due process consideration followed by just compensation equaling a fair market value for that property.   These Shelter In Place orders neither secure due process nor do they even mention reimbursement of fair market value. 

Learn YOUR Constitution at LibertyFirstSociety.com – The Constitution as if the founders themselves were teaching it.  An education worthy of the highestest institutions of learning because they won’t teach truth anymore!

Every Constitution of every State in the Union, as well as the US Constitution, acknowledge the Rights to freedom of religion and to peaceably assemble as fundamental rights.  Many State Constitutions, as well as the US Constitution, describe these rights as “inalienable rights” or “Natural Rights” meaning they do not come as permissions from governments, but pre-exist all law and government.  These Rights are not the products of governments.  To the contrary, governments exist with sole purpose to secure these rights for the individual.  Inherent in the securing of these rights is the prohibition against government defining the parameters of these rights.  When the government can arbitrarily decide that the only “legal” assembly is one of ten people or less, there is no longer a right to peaceably assemble, but a permission granted under certain limited and confining terms.  One of the most essential reasons for the right to peaceably assemble is the power the assembly brings in the Right to Petition the Government for a Redress of Grievances.  It is a truly despotic government that can create unjust and unconstitutional activity and then also possess the power to set the limits and parameters upon which the people can protest those laws.  The very same can be said about the Right to freedom of religion.  When a government can tell a body of people when, where, and how many can “legally” meet in their church, that government is defining religion and that is antithetical to everything that America is founded upon.  What is even worse, these Shelter in Place Orders not only do all of that, many have also determined that the definition of freedom of religion can be relegated and confined to an internet broadcast and all those who are unable to meet this order are simply denied their right to worship and threatened by force of government to have no assembly whatsoever.

Finally, these Shelter In Place Orders often establish that failure to comply with the order will result in civil or criminal penalties.  Yet these orders do not define the elements of their newly invented crime, the evidence necessary to prove violation of the order, nor do they establish the affirmative defenses available to the accused.  In their attempts to “ensure enforcement” of their orders, those governments have established those terms with a complete disregard for due process, evidentiary rules, and the Rights of the people to be innocent until proven guilty.  As these orders stand, it is up to the individual officer to make the determination of what is proper evidence of compliance and what is insufficient evidence that equates to a violation: American courts call that “unbridled discretion” and for decades have held that to be fundamentally unjust.

What makes all of this so very tragic is that America’s founders pledged their lives, fortunes, and sacred honor to throw off the very artifices of government we are experiencing today.  James Otis, Jr,  a lawyer whom our founders termed as the “midwife to liberty,” brought a valiant legal battle against the laws of Parliament that attempted to legally authorize what our governors, county commissioners, city councils, and mayors are doing today.  He referred to these laws as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.”  In an America that once declared independence from Kings forever, we have all too quickly succumbed to king-like authority under the wiles of fear and necessity.  William Pitt, the Younger would likely remind us that “necessity is the plea for every infringement of human freedom.  It is the argument of tyrants.  It is the creed of slaves.”

Let’s be clear, I am not asserting that the individual should not choose a behavior that respects the most prudent measures available to ensure the best health and welfare of their neighbor.  But when a government uses threat and force to compel behavior and the Rights of the people are ignored and due process denied under the pretense of necessity, the people are not safe, the welfare of the people is not respected and the body of the people are in danger of becoming enslaved by the very government they’ve elected to secure their rights.  Samuel Adams said:

“No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffused and virtue is preserved.”

At stake are the inherent rights to Freedom of Religion, Freedom of Speech, Freed of Press, Right to Peaceably Assemble, Right to Petition Government For a Redress of Grievances, Rights of Due Process, and Security in Personal Property.  These rights are simply summarized as The Natural Rights of every individual and are derived from the First Law of Nature. 

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.” Samuel Adams, 1772

America was not constructed upon the principle of National Security or power of National Emergency; America was built upon the Principle of Liberty.  Our founders understood the eternal and essential nature of the principles of Liberty and believed that the preservation of these Rights was more important that life itself.

 “Liberty must at all hazards be supported…” John Adams, 1765

“What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” Patrick Henry, 1775

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”  Benjamin Franklin, 1755

Perhaps it is time we begin to educate ourselves on the Constitutional Republic we legally have and the principles that truly make America great, instead of tolerating the authoritarian government we are being subjected to.

Learn YOUR Constitution at LibertyFirstSociety.com – The Constitution as if the founders themselves were teaching it.  An education worthy of the highestest institutions of learning because they won’t teach truth anymore!

The following is are the summary key points that follow from my previous publication A Message To The Church: COVID19 Restrictions and Freedom of Religion.  For the full document please visit https://bit.ly/CovidReligiousLiberty

The Church: A Refuge in A Time of Need

• Throughout all of history the church has been an essential part of society.
• Throughout American culture and tradition the church house was not just the place for spiritual gatherings but the hub of society.
• In American settlements the churches were often the very first buildings to be built in a community.
• Churches have been, for generations, the common meeting place where the local community received key information about cultural and political events, and even world affairs.
• The Church is a place where people turn for help and for comfort in a climate of fear and uncertainty.
• Even people who do not attend church regularly, or perhaps never go to church, commonly view the church as somewhere for them to go when they need help.
• Throughout history the church has been viewed as an essential part of society, a refuge in time of trouble or need, a place of peace and a sanctuary for the weary, even a place of healing and provision.
• Because of the historical and cultural role of churches in American history, the church house is the perfect place for a safe haven to be established in this current time of need.
• Not only are churches culturally viewed as a place of refuge:
  • The facilities of the church are designed to accommodate large groups of people in need of assistance, shelter, and nourishment.
  • The people of the church are trained to facilitate large gatherings of people
  • The body of the church is practiced in the function of efficiently and equitably distributing aid
  • Churches are established throughout communities and can easily become coordination centers to aid in crisis recovery
  • Many churches already have established ministries that are already established distribution centers for clothing or bulk food items, a shelter, a childcare center, a communication center, or an information center for other organizations.
• Churches make the perfect place for information staging areas for volunteers or work units and often provide their own ready pool of volunteers; providing transportation, assistance for services needed, and certain staff and members are already trained to provide counseling and assistance for special needs.
• Because of the nature of the church as a body of those in service to others, the church can also serve as a training ground for those who wish to volunteer but have no previous experience in that service.
• The church is not only historically a place of spiritual deliverance but an essential part of the organization of society and its physical preservation.
• The church may not be the only place where people can gather, but it is traditionally one of the first places people turn to for help and one of the few places where many feel free to receive the help they need.

Churches provide ESSENTIAL SERVICES to the local community and are part of the CRITICAL INFRASTRUCTURE. At times of crisis THE CHURCH in coordination with other private sector organizations serve as a force multiplier to the local government in providing multiple essential services when other services reach max capacity.  I encourage every pastor, leader and American patriot to understand and articulate this message so ALL will remember that WE THE PEOPLE ARE UNITED.

Learn YOUR Constitution at LibertyFirstSociety.com – The Constitution as if the founders themselves were teaching it.  An education worthy of the highestest institutions of learning because they won’t teach truth anymore!

A Message To The Church: 

COVID19 Restrictions and Freedom of Religion

By KrisAnne Hall, JD

KrisAnneHall.com

A bloody path was trod to bring religious freedom to modern America. Christian martyrs and patriots secured our God-given right to Freedom of Religion with their suffering and even with their lives.  Religious freedom in America is not simply a fundamental right but a foundational one.  The settlements of the first American colonies were established in the flight from oppressive religious persecution and the struggle continued even on these shores.  From the beating of Obadiah Holmes, the lynching of Quakers and the imprisonment of 50 Baptist preachers who were defended by a fiery attorney named Patrick Henry, religious liberty in America has been something Christians have always been willing to stand for or even to die for.  This history and more gave us our First Amendment to the Constitution and its underlying principle of religious conscience which has been part of the bedrock of our Republic for more than two centuries.

The “Father of the Constitution” and fourth President James Madison wrote in 1792,

“Conscience is the most sacred of all property…the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle…”

Indeed prohibitions upon the government’s authority to infringe, limit, or dictate the operation of the church have been codified in western law long before the settlement of American colonies.  Many American Christians have heard of Thomas Jefferson’s famous letter to the Danbury Baptists ensuring them that America would never return to a time where the government sought to dictate the operations of the church.  But long before 1802, Jefferson’s “wall of separation of church and state” that kept government outside the sacred walls of the church was one alluded to by King Henry I in the 1100 Charter of Liberties. Henry declared the body of the church to be free from government intrusions. Two-hundred years later, one of the tipping points in the fight that brought us Magna Carta was the crown’s attempt to interfere in the free operation of the church. This charter history of our founding documents continued its development through the Grand Remonstrance of 1641 and the English Bill of Rights of 1689 under which our founders arrived in this New World.  Each of these installments, which would later culminate in our founding documents; all happened amid the fight for religious liberty.

Learn YOUR Constitution at LibertyFirstSociety.com– The Constitution as if the founders themselves were teaching it.  An education worthy of the highestest institutions of learning because they won’t teach truth anymore!

However even with the clear language of our First Amendment and the history that should inform our actions, the struggle to maintain this essential right from the control of government continues to this day. Modern lawmakers like to carve out excuses and causes for government intrusions into our inherent rights when some imagined need arises.  William Pitt, The Younger warned in 1783, “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants.  It is the creed of slaves.”  Necessity seems to always be the most powerful tool to persuade the masses into accepting these infringements.  Today because of the coronavirus scare, religious liberty is facing a huge “necessity plea” in the form of limits upon assembly. At least one church has been descended upon by police and threatened with the National Guard for having more than 250 people attend.

According to the courts, a law that infringes upon a fundamental right, like Freedom of Religion, must overcome certain challenges:  The law must not be arbitrary, oppressive, or unreasonable.  The law must be equally applied to secular businesses and it must satisfy a qualification of being the least restrictive means necessary to accomplish a compelling governmental interest. The restrictions imposed by Governors and municipalities upon the number of people who can assemble in a private church gathering appears to fail these tests. 

First, these numerical restrictions are completely arbitrary in nature.  There has been no tested nor proven scientific or medical data to show us what “number” of people that congregate together are a danger to society.  The number has varied from place to place and moment by moment. Somewhere it’s 50, other places its 10 and there are still other variations.  When politicians assign an “acceptable” number of people allowed in a private church, they are reducing our right to Freedom of Religion to a first come, first served privilege.  Our first foundational document reads:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

The government deciding who can attend a service by way of a numerical limit does not demonstrate an equality of rights and ought to be seen as a per se violation of the principle of separation of church and state.

Secondly, in the current scare, these orders are not being applied equally upon secular businesses and other institutions.  When arbitrary number limits are applied to a church and not to a library, post office, grocery store, or hotel gym, there is not equal application.  These orders try to justify unequal application based upon the definition of “essential” services.  By what authority does the government declare the church non-essential? The Church is a place where people turn for help and for comfort in a climate of fear and uncertainty. In a time of crisis, people are fearful and in need of comfort and community, more than ever before. Even people who do not attend church regularly, or perhaps never go to church, need to know that there is somewhere for them to go when they need help.  Since Roman persecution of the church ended, the church has been viewed by Western civilization as an essential part of society, a refuge in time of trouble or need, a place of peace and a sanctuary for the weary, even a place of healing and provision.  More salient for believers is that the Bible pointedly addresses the issue of assembling during troubled times:

“Not forsaking the assembling of ourselves together, as the manner of some is; but exhorting one another: and so much the more, as ye see the day approaching.” Heb 10:25

Many in the church take this as a solemn command. To deny a Christian his obligation to gather with his local called out body is to put him at odds with a fundamental tenet of the faith.  For a believer in Christ there are few things as essential as the gathering of the body of Christ in the study of God’s Word and worship of His Glory.  As a matter of fact, the Bible teaches that since we are eternal beings in this temporary world, God’s word is more essential than food.

“But Jesus replied, “It is written and forever remains written, ‘Man shall not live by bread alone, but by every word that comes out of the mouth of God.’” Matthew 4:4

When those in government can assign a label of non-essential to the practice of religion, then government is taking a very serious and dangerous role of defining religion, which is expressly forbidden in our Bill of Rights and in a majority of our State Constitutions. 

Finally, these restrictions are not reasonable and not the least restrictive means necessary.  The case law used to define reasonableness in these laws are easily distinguishable.  In Moore v. Draper, the Florida Supreme Court held that Moore could be quarantined and prevented from attending church because he had Tuberculosis.  The court also said that once he was healthy he could no longer be reasonably or legally quarantined and prevented from attending church.  The current laws restricting the number of attendees of a church are not restrictions on one unhealthy individual.  They are restrictions upon a group of healthy people from attending church. The court said that such a restriction would be unreasonable.  Additionally, the court did not order the entire church to be shut down to keep Moore healthy, which is exactly what these orders are trying to suggest is a reasonable and Constitutional solution. 

Limiting an entire congregation of people for the safety of those who may be at risk of infection does not meet the standard of Moore, nor can it be seen as the least restrictive means necessary.   The Florida case of Varholy v. Sweat is distinguishable for the same reasons as Moore.  Finally, in Employment Division vs. Smith, the U.S. Supreme Court held that a “neutral, generally applicable law” restricting use of a hallucinogenic plant was not an unreasonable interference upon freedom of religion. Because the current restrictions upon church assemblies are not generally applicable to every other place where people will congregate, Smith is not controlling and proponents of church meeting bans find it no support.

Although it is argued the “protection of the public health is one of the prime duties resting upon the State” we cannot escape the reality that the FIRST prime duty of every state is codified in the Declaration of Independence:

“…that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

There is nothing in the law or precedent to establish a blanket and arbitrary assertion of “state of emergency” as an unquestionable authority.  There is nothing in law or precedent to support a restriction on the number of people who can assemble in a church, for health reasons or otherwise, as a criterion for denying the essential Right of Freedom of Religion.  There is everything in history and experience that says such actions by government are unreasonable and oppressive restrictions upon the essential and inherent Right of Freedom of Religion.  Rev. Jonathan Witherspoon, founder of Princeton University gave this warning:

“There is not a single instance in history in which civil liberty was lost, and religious liberty preserved entire.” 

When Peter and the apostles were told by law not to gather, preach, lay hands on the sick for God to grant them healing or else be thrown into prison, they chose to continue to practice their faith.  After they escaped from prison and were told by God to go back and assemble with the people and preach and heal, they did exactly that.  And when they were questioned by the government as to why they continued to break this law, the apostles did not hesitate or make excuse, they simply said, “We ought to obey God rather than men.”(Acts 5:29)  True to the history that makes America great, our pastors and church members should not so easily surrender a fundamental rights so faithfully contended for by those who have gone before. Who will stand and not let the landmarks be moved?

Learn more at KrisAnneHall.com

Learn YOUR Constitution at LibertyFirstSociety.com– The Constitution as if the founders themselves were teaching it.  An education worthy of the highestest institutions of learning because they won’t teach truth anymore!