What's your thoughts

[Don Kennedy]

These “orders” — stay at home, close your business, don’t run in the park, don’t go to Mass, practice social distancing — are not laws that can carry a criminal penalty for violation. They are guidelines, without the force of law. A governor or mayor can no more craft law and assign a punishment for its noncompliance than the courts could command the military or police.

Even if legislative bodies did order churches and businesses closed, and governors and mayors were just enforcing those laws, the laws would be profoundly unconstitutional. The Free Exercise Clause of the First Amendment firmly establishes freedom of religion as a fundamental liberty, and the Due Process Clause of the Fifth Amendment firmly establishes your right to purchase a lawful product in interstate commerce from a willing seller as fundamental.

Fundamental liberties are in the highest category of liberty, akin to freedom of conscience and speech and press and privacy and travel.

Let’s say you are at a big-box store looking for groceries and other items. The government cannot constitutionally limit your choices to food and paper towels if you prefer to buy grass seed and a garden hose. These are intimate personal decisions. You need not explain or justify them to the government and you don’t need a government permission slip to exercise your free will and make those choices.

Until now.

Now, we have become a nation of sheep. We have elected officials with constitutionally assigned duties — and constitutionally imposed limitations — who have assumed to themselves dictatorial powers and have falsely claimed that they can interfere with our personal choices. Who are the governors to decide which human activities are essential? Abortion is essential but Mass is not? No constitution gave them that power.

There are two schools of thought on the impairment of fundamental liberties. One requires strict scrutiny and the other requires due process. The strict scrutiny standard mandates the existence of a compelling state interest addressed by the least restrictive means. The procedural due process standard mandates a trial at which the state must prove fault or guilt. The substantive due process standard puts certain personal decisions beyond governmental reach.

Closing churches meets no constitutional standard. There is no question that fighting a pandemic is a compelling state interest, yet there are far less restrictive ways to address it than preventing worship. Wearing masks and gloves, staying 10 feet apart, holding Mass outdoors, even taking a personal risk and then self-quarantining are far less restrictive and constitutionally offensive than closing churches.

New York City Mayor Bill de Blasio violated his oath to uphold the Constitution when he threatened to use force to close permanently all houses of worship that defied his guidelines. And a small-town police department in northern New Jersey exquisitely violated the constitutional rights of Catholics — while enforcing the ever-changing whims of Gov. Phil Murphy. The police claimed they were following the governor’s orders when they barred a priest on Palm Sunday from distributing palms in sealed plastic bags while he and each parishioner wore masks and gloves and were six feet apart in the fresh outdoors.

Enough is enough.

The employment of government power to assault personal liberty and cut constitutional corners is never justified in a free society, no matter the exigency. The Constitution protects our rights in good times and in bad. Those in power who steal freedom are unworthy of office. But don’t expect them to give us our freedoms back. We will need to pry it away from their cold and covetous hand