Dear Brutus,

You have written to me asking my opinion on the recent protests and acts of civil disobedience in your community. Although our national politics would probably be much healthier on the whole if we each confined ourselves to worrying about what’s happening in our own backyards, the actions taken in your community pose fundamental questions about the nature of the rule of law, and indeed religious liberty, that have crucial relevance for all Americans at this tumultuous time. Indeed, although these protests were prompted by mask-wearing ordinances, the logic of the actions taken bears striking parallels to the protests of BLM activists earlier this year. Both sets of protests, it seems to me, manifest dangerous misunderstandings of what it means to live under the rule of law, and threaten the civic fiber of our once-great country. In your case, they do more, confusing and compromising the church’s witness at a moment when the clear voice of Christian courage and truth is more needed than ever. In times such as these, it is important to step back, take a deep breath, and ask what the Lord truly requires of us as Christian citizens.

The Case for Civil Disobedience

Let me begin by restating, if I may, what I take to be your argument:

Our community has thus far been spared any dangerous outbreak of Covid-19. Cases have been low, and hospitalizations lower. There is no “emergency” here. And yet our local government officials insist on treating the situation as if there were. They have required masks to be worn in any public places where social distancing cannot be maintained, including schools and churches. True, they have not enforced the order in schools and churches, or outside of public gathering places, but the mere existence of the order, the claim that they have a right to enforce it, is an act of tyranny. Why is it an act of tyranny? Because it violates our religious liberty by presuming to legislate for churches, because the local authorities possess no constitutional right to give such an order, and because the order as it stands is arbitrary, with no clear metrics as to why we are in an “emergency,” and no metrics as to when we might be out of it. Arbitrary authority, powers without limits, is the essence of tyranny. We have a God-given responsibility and a duty as American citizens to resist such unaccountable overreach.

It was on this basis that, I understand, your church has organized public protests in the form of un-masked, un-socially-distanced gatherings outside City Hall to sing songs of praise, one of which resulted a nationally-publicized arrest of three protestors who refused to comply with police seeking to issue citations.

I hope that I have offered a fair representation of the situation there and your views on it. I might point out that it seems a touch out of date, as in recent weeks your community has seen a significant surge of Covid-19 cases—indeed, is now seeing 5-10x as many cases per capita as my own community, where most have taken more onerous restrictions in stride without dreaming of denouncing them as “tyranny.” Indeed, in general I would encourage you to take a wider view; the restrictions you are facing there are similar to (and indeed, in many cases, laxer than) those faced by hundreds of millions of other Americans, and perhaps billions around the globe right now during this unprecedented time.

If you took this wider view, I suspect it would be harder to maintain the illusion that you are facing some uniquely oppressive tyranny, even if your local authorities seem to have been particularly unwise in some of their decision-making and poor in their communication to the public. I suppose you could retort that this wider-angle lens simply reveals that hundreds of millions around America and the globe are facing coordinated acts of tyranny right now, but I hope you will pardon me, as a historian, for treating such apocalypticism with a skeptical eye.

Now, before addressing your arguments, it might help for us to first be clear about the nature of the actions you and your friends have taken. You might be tempted to suggest that all you have done is to exercise your First Amendment rights “peaceably to assemble, and to petition the Government for a redress of grievances.” In that case, the only questions would be surrounding the justice of your cause and the prudence of the assembly-and-petition.

But I think you recognize that rather more than this took place. In fact, as I understand, your city made a good-faith effort to facilitate just such a peaceful protest, so long as it abode by the social-distancing requirement of the ordinance. Given that the organizers explicitly instructed demonstrators not to abide by the ordinance, it seems clear that they were involved in something different than a standard, legally-protected act of protest; they were in fact engaging in an act of civil disobedience. I say this not to poison the well or to condemn the protest out of hand; I’m simply noting that we should be clear about what was done and what was intended before we ask how it was justified. Sometimes, I believe, God may call us to courageous acts of civil disobedience.

A Question of Religious Liberty?

It should, I would hope, go without saying that the resulting citations and arrests had nothing to do with the other First Amendment issue of religious exercise. But sadly, we both know that it cannot go without saying. On the contrary, many have, whether out of a desire to deceive or out of their own self-deception, portrayed the singing protest as an act of religious worship and the resulting suppression as an infringement of religious freedom. Whether or not such an open-air gathering to sing songs of praise, outside of ordinary hours of worship and with little precedent in the life of this congregation, should be reckoned as an act of public worship, I am uncertain—and prima facie skeptical, since it seems to me that its chief purpose was civil, rather than religious. Regardless, though, it seems clear that from the standpoint of law enforcement, it is properly irrelevant what other activities the individuals may have been engaged in when breaking the masking ordinance. I have a constitutional right to talk to my wife, yell at my children in the backseat, or indeed sing praises to God while driving my car. But I do not have a constitutional right to exceed the speed limit while doing so. Should I be cited by an officer for speeding, he should be entirely uninterested in the question of how devout my religious exercises were while I was careening along at 84 mph. In fact, if I should insist on my piety to try and get off the hook, I would probably be guilty of a Third Commandment violation. (I happen to think speeding regulations a rather precise analogue for masking ordinances, given that both are promulgated chiefly to prevent the reckless endangerment of others in public places; I will return to the analogy several times below.)

“Ah, but not so fast,” you say. “The choice to turn the protest into something of an act of worship was no accident. It was part of the point. After all, the authorities do claim the right to enforce social distancing or masking during our Sunday morning worship, so if they issued citations in front of City Hall, what’s to stop them from issuing citations in church?” In other words, you contend that you were simply trying to bring a largely-hidden injustice out into the open—to force a public recognition of the infringement on religious freedom implied in the city ordinance. In fact, I have heard some say that the very fact of selective enforcement (“why haven’t they handed out citations on Sunday morning, if this mask-wearing is such a big deal?”) is further proof of the injustice or arbitrariness of the law. Or, as some have framed the point, “Aren’t we violating the law every Sunday morning when we worship unmasked? If so, what’s the big deal with doing it more publicly?” You may well be violating the law every Sunday morning when you worship unmasked—certainly most other churches I know have cheerfully complied with such ordinances, and I myself would not have a clean conscience participating in a noncompliant service. Indeed, I confess that am thoroughly puzzled as to how even the enforcement of a masking ordinance on public worship could be construed as a violation of religious liberty. In America, our civil magistrates do not have authority to regulate acts of worship qua acts of worship, but they have the right to uphold public safety regulations that may impinge upon and limit acts of worship. (And indeed, as someone participating in masked worship services for more than four months now, I can attest that, inconvenient though they may be, masks pose no limitation to acts of worship.)  Nearly every church in America, I should think, is subject to maximum occupancy limitations per fire codes, and could indeed be temporarily barred from meeting altogether if the building were judged unsafe or the congregation had been in gross violation of safety norms. In many jurisdictions, you would not be allowed to carry a weapon into a worship service, and although I know that you might object to such regulations, you yourself would recognize that at the very least, that is a Second Amendment issue, not a First—the guns having nothing to do with worship.

The Task of Law Enforcement and the Rule of Law

Still, let’s leave all that to the side for now, because I think the objection manifests a misunderstanding of how law enforcement works. In law, there is usually a gap between promulgation and enforcement: the law states what you can in principle be held to account for, but in practice, you will often be left much greater liberty. Sometimes this simply reflects the practical limitations facing law enforcement, as when lawless mob bosses roam free, when their crimes are well-known. But often it reflects an intentional balancing act between the spirit and the letter of the law. The law aims to restrain some activity that, while not immoral as such, can pose a real threat to the public. To do so, it intentionally draws a somewhat wider boundary than is strictly necessary, knowing that the public will tend to overstep the boundary when the risk of doing so seems minimal, or in circumstances where following the letter of the law would do more harm than good. The law then plays something of a symbolic function, with the actual boundary-line being something of an arbitrary marker, but warning the public that there is a danger in this direction, and that at some point, an infraction can be enforced. The police will then establish enforcement habits that, in general, give the public a sense of where the boundary-line lies in practice. Again, speed limits are a case in point. A 55-mph speed limit, on very rare occasions, means, “Do not drive over 55 mph on this road or you may receive a ticket.” More often, it means, “Do not drive over 60, or 65 mph on this road.” On some roads I have observed, it even appears to mean “Do not drive over 70 mph on this road.” Still, just because law enforcement considers speeding legitimate on some roads does not mean that they are bound to tolerate a motorcycle gang roaring through a crowded downtown at high speed, right in front of the police station, to flaunt their liberty. For the law to achieve its symbolic function, direct symbolic attacks on it must not be permitted.

I think something very similar is going on with masking mandates (although it is complicated in many places by tensions between lawmakers and law-enforcers, which can make it hard for some private citizens to tell what is actually expected of them). In your community at least, law enforcement have decided that they are happy to leave institutions like churches the freedom to decide for themselves on whether masking makes sense during worship; they have recognized that there is a tradeoff between liberty and security and have decided to err on the side of liberty when it comes to practical enforcement. To me, from the outside, this looks like clear proof that they are not out to get the church, and that they have the utmost respect for religious liberty. But when you do the equivalent of the motorcycle gang racing through downtown, they have had no choice but to enforce the law, since otherwise the law would be made a laughingstock. Indeed, you grant, do you not, that that was the point? To make the law a laughingstock? Was not the gathering intended as a symbolic attack on the authority of the law in question? And if so, then why was there any surprise that law enforcement should have responded accordingly, pledging themselves to uphold the symbolic authority of the rule of law? Perhaps your civil disobedience was justified—that question remains to be answered—but since it was intended as an act of high-handed disobedience, citations and perhaps arrests are only to be expected. I confess this is one of the things that most puzzles me. If you wish to be a martyr, do not be shocked when you become one. If you act in a way that provokes arrest, then accept arrest cheerfully as the natural consequence. It is scarcely intelligible to deliberately defy law enforcement and then to express shock and outrage when the law is enforced. It looks, if I may say so, like a political stunt.

Perhaps that was not intended, and folks genuinely expected law enforcement officers to stand aside and refuse to enforce an ordinance that, to them, seemed so unjustified. But if so, this strikes me as a naïve misunderstanding of the rule of law. The task of law enforcement, after all, is to enforce the law. They have some room for prudential discrimination between the spirit and the letter of the law, to be sure, and must always weigh the limits of their own capacity for effective enforcement, but barring extreme circumstances of manifest tyranny, their job is to uphold the rule of law, even if they disagree with particular rules of the current law. Anything else is an invitation to anarchy. Indeed, few things have been more disturbing to me than the contempt and disrespect aimed at law enforcement who are just trying to do their duty.

That word, duty, used to be held in reverence by Christians and Americans, but now seems to be scorned. Duty means carrying out the obligations of an office, not one’s personal views and preferences; it means recognizing that there is a chain of command that has to be respected even when you disagree. This conception is in fact the foundation of our constitutional republic. Your local police chief said this so well I will just quote him at length (redacting local identifiers):

Unlike the Sheriff, municipal law enforcement agencies such as the Police Department are under the direction of City Hall and are duty-bound to enforce municipal ordinances unless and until those ordinances are declared invalid by a court of law.  In the current situation, the Police Department does not have the luxury or option to disregard the dictates of City Hall.

At the same time, we are a country of laws and the integrity of our American way of life depends on faithful adherence to our laws.  Our legal system has avenues to seek redress from perceived illegal or unconstitutional laws, including municipal ordinances.  Our constitutional and civic duties are to pursue legal remedies – not to simply disregard a law or ordinance because someone disagrees with it.  Resort should properly be through the courts or, ultimately, the ballot box.

We recognize and respect that there are citizens on both sides of the City’s social distancing and mask ordinance that have deeply held feelings, concerns and fears.  We encourage everyone to avail themselves of lawful avenues for recourse.  However, those lawful avenues should not include obstruction, resisting or delaying dedicated peace officers and the Police Department in doing their duties.  We must all remember that the Police Department did not enact the social distancing and mask ordinance – the City Council did, so grievances should be addressed to City Hall, the courts or the ballot box.Now, perhaps more than ever, those of us in law enforcement need everyone’s support and assistance, not resistance and interference.  We encourage everyone to peacefully and lawfully express their beliefs as is our constitutional right.

For those citizens who endorse the social distancing and mask ordinance, tell City Hall; for those who oppose it, not only tell City Hall, pursue your legal remedies as is your right – but to all, exercise your constitutional rights in a lawful and respectful manner and don’t blame the Police Department for fulfilling their legal duties…. Only those who made the ordinance (City Council) or those who can invalidate or uphold the law (the Courts) can give you your relief.

What if the Law is Unconstitutional?

This is a neat segue into another part of your argument: that the mask ordinance is unconstitutional, because it lies outside of the legal competence of the local authorities. To this, my answer can be much briefer. If true, then an obvious recourse is available to you: appeal to higher authorities, or the courts. The appeal to higher executive authorities would seem to have been answered; I believe your governor has explicitly defended the local authorities as having the right to act in this way, and the federal authorities have left these questions to the states (as indeed they would seem constitutionally required to do).

So then there is the judiciary, to which our Founding Fathers wisely gave extensive powers of “judicial review”—that is, to assess the constitutionality of both executive and legislative acts, and strike down those that were contrary to the fundamental laws of our society. I know that any number of lawsuits have been filed in recent months over various Covid measures, and many are still progressing through the courts. To my knowledge, although in some cases courts have ruled that governors had wielded powers that belonged properly only to state legislatures, I have not heard of cases where courts denied that either executive or legislature had any right to pass mask ordinances. Still, perhaps there is a case to be made. If so, make it! But outright civil disobedience is a last resort, one that comes after all legal remedies have failed. That is what it means to live under the rule of law, the priceless treasure of Western and Christian civilization that our forefathers have handed down to us.

I have heard Christians say that Romans 13 and 1 Peter 2 do not apply here, because for us, our “higher powers,” our “emperor” is the Constitution—so we must obey that, and disobey all human authorities that stand in its way. But this is just silly. During the time of the Reformation, Roman Catholics objected that by replacing the Pope with the Bible as the supreme authority, Protestants were effectively making every believer his own pope—if a mere document was supreme, who was to interpret it besides the individual? Protestants then and now have responded that this is a caricature: that Scripture must be interpreted in respectful deference to the Fathers of the church, to creeds and confessions, to those well trained in the Scriptures and in positions of public authority. The same goes a fortiori of a fundamental political authority. The whole point of our Constitution was to establish institutional checks and balances against overreaching authority; this would have been a waste of time if the Founding Fathers had intended every individual’s private judgment to serve as a check to any law that he disapproved of. But they knew that ordered life together in society would be impossible in such a case.

Yes, we do live in a constitutional republic, not an autocracy. Which is precisely why it is necessary for every faithful citizen to obey the laws he detests—and at the same time, to earnestly challenge them at the ballot box or the courts.

But what if, you will retort, these get us nowhere, and yet the law is unjust? Or perhaps the injustice is so urgent that it cannot wait for legal redress. In that case, must we not shout, “No justice, no peace!” and take to the streets? Well, not so fast. Historically, the Christian political tradition has been willing to justify acts of civil disobedience or even rebellion if the evil is bad enough. But clearly, not just any evil will qualify.

Before going on, I should clarify that I wouldn’t consider every form of disobedience to a law as “civil disobedience,” in the usual sense. Most of us can point to plenty of cases where we’ve ignored a law that we thought was foolish or counterproductive in certain circumstances. Again, with the speeding example: even going beyond my point about the difference between the law-as-written and the law-as-enforced, many of us have dared what we knew might qualify as a speeding violation if we were on an empty country road and it was obviously safe to drive faster, or if some urgent need required speed. We might debate the legitimacy of some of these acts, but certainly there are cases when we will judge that the good to be done from quietly disregarding a law far outweighs the harm. And indeed, the Christian tradition has generally taught that not every violation of law is therefore sin.

So I don’t believe that everyone who fails to wear a mask at all times that an ordinance requires it is being wicked. But our tradition has also taught that there is a great difference between quietly disregarding and high-handedly flaunting. Even if a particular law is bad, the rule of law as such is good, and to attack the former in a way that undermines the latter can only be justified in the gravest circumstances. “Civil disobedience” usually refers to such a strategic flaunting of law: a public act of disobedience that is meant to discredit a structure of injustice. And as I understand, that is exactly what you all meant to do with your recent demonstrations.

When to Resist Tyranny

So what could justify such an act? Well, traditionally, tyranny. And indeed, the word “tyranny” has been quick to your lips and quick to the lips of many in our nation in recent months. So much so that I have to pinch myself from time to time to remind myself that we are talking about masks. Anyone would think that at stake were laws requiring all doctors to perform abortions, or laws requiring every citizen to pay a ruinous 50% property tax. Prima facie, it is hard to see how something as trivial as a face covering in a time of pandemic could rise to the level where we were discussing the proper forms of extra-legal redress for tyranny. This conflict, I would wager, is just a presenting issue for a deeper sense of alienation and fracture in our social fabric, the symptom of a profound breakdown of trust between governed and governing that has begun to distort our sense of reality. But this letter grows long, so I will not wax philosophical on that score. There are two points I have heard you make about why this ordinance is so unjust. Let me address those quickly and then bring this to a conclusion.

First, you say that the ordinance is arbitrary, in that it sets no metrics that could offer a threshold for when the emergency measures are justified and when they may be safely allowed to expire. And since “arbitrary power” is one common definition of tyranny, the inference is an easy one. But, I fear, it is founded on a simple confusion of terminology. To draw “arbitrary” lines in the sand is, as traditionally understood, part of the nature of civil law. Take speed limits (yes, I know, you’re getting thoroughly sick of the illustration!): why 55, rather than 60 or 50? Or 54 or 56? Well, they have to draw a line somewhere, and won’t necessarily be able to say exactly why they drew it exactly there. Only in our own age of Big Data has it become plausible to begin justifying all controversial political decisions by “metrics.” And while I do think this is a great gain for us in many areas, it can also tempt us into thinking that we can reduce political decision-making to a science, that we can take the arbitrariness out of governance. We cannot.

Now, when our political tradition has spoken of tyranny as “arbitrary power,” it means by this power that is dependent upon the mere will of the ruler—power that has no checks or balances, that is not limited by law, that is not accountable to the people. It should be clear from what we have said so far that, by this definition, that is not, thank God, what we are currently facing. Your city’s mask ordinance exists within the limitations of the rule of law, subject to the control of the courts or higher authorities, and in fact, as I understand, currently enjoys the support of the majority of the populace, to whom the city council are most directly accountable. It may nonetheless have been ill-advised, or instituted high-handedly without sufficient attention to the input of all constituents—in fact, I am more than happy to concede both, from what I know of the situation—but “tyranny” it is not.

Second, you say that the ordinance is downright harmful. Some have said that it is psychologically damaging to have to interact with people through masks. Perhaps so, though we shouldn’t get carried away and exaggerate this point—do doctors and nurses end up in the sanatorium after a few months on the job? Others have cited evidence that masks carry their own health risks. Still others, with the most nuance, have granted that masking will be a necessary part of fighting this pandemic, but insist that mask requirements should be saved until cases reach a high-risk threshold, so that the public does not become fatigued with compliance when cases are low.

These are all good arguments. But they are, take note, no more than arguments—more or less plausible, possible, or probable, but none of them self-evident, none of them slam dunks. Against them, we must range all of the studies showing just how much masks help in limiting the spread of the virus, allowing us to avoid more socially and economically costly measures like business closures and lockdowns; we must range all of the authorities recommending or requiring masking around our country and around the world. Are their arguments (particularly for the wisdom of any particular masking ordinance in a locality that is fairly low-risk) slam dunks? Well no. They too are more or less plausible, possible, or probable. How are we to adjudicate such competing claims?

Well thankfully, we don’t have to. As Richard Hooker wisely observes (ha! You knew I wasn’t going to be able to get through this letter without bringing him in somewhere!): “Peace and quietness are not possible unless the probable voice of an entire society or body politic should overrule all similarly probable private judgments within the same body.” Call this Hooker’s Canon: if in doubt, public judgment must override private judgment. Only if the private judgment has some kind of divine revelation or incontrovertible reason on its side could it override the public judgment of law. In other words, it’s not enough to think the law is bad. It might be enough to justify quiet disobedience where that will not rock the boat or cause offense (as noted above). But public disobedience—thumbing your nose at the law or—let’s be frank—giving it the middle finger? That requires something much more. It requires genuine tyranny: an injustice that strikes at the very foundations of the society and inflicts grievous harm. Otherwise, there would be no sense trying to live in a society of laws at all. A society that said, “Here are the laws: only obey them as long as you agree with them” wouldn’t last two days. To quote Hooker again (this time in the fine old Elizabethan original):

“Which opinion, albeit applied here no further than to this present cause, shaketh universally the fabric of government, tendeth to anarchy and mere confusion, dissolveth families, dissipateth colleges, corporations, armies, overthroweth kingdoms, churches, and whatsoever is now through the providence of God by authority and power upheld.”

So, my friend, I hope you will understand why I have taken time to write at such length on this matter, and why I cannot behold your recent actions and statements without grief and alarm. Even if our faith did not call upon us to “keep your conduct among the Gentiles honorable, so that when they speak against you as evildoers, they may see your good deeds and glorify God on the day of visitation” (1 Pet. 2:12), our great heritage as American citizens is at stake. Our forefathers fought and died, labored and litigated, for a political order founded upon the concept of ordered liberty—of individual freedom within the rule of law, that sought redress through peaceful protest and patient reform, rather than angry defiance. We have not always been faithful to this heritage—we Americans have always been a boisterous lot—but by God’s grace it has remained the norm through most of our history. Let us not give up on it now.

Yours sincerely,

Publius

Posted by Brad Littlejohn

Brad Littlejohn (PhD University of Edinburgh, 2013) is a Senior Fellow with the Edmund Burke Foundation and President of the Davenant Institute, author in the fields of Reformation studies, Christian ethics, and political theology.

3 Comments

  1. Thank you, Brad. This was a very well reasoned argument, going at it from many angles. I was on the fence until I read this. I also did not know that the Moscow, Idaho protest was because of masks. I thought it was about church reopening. I wonder how many other Christians who saw a brief clip of an arrest do not know it was merely over masks.

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