Gatherings and public good


“A Quiet Place” was one of the top-10 films of 2018. It imagined a world where deadly monsters hunted by sound. Simple human acts like talking, laughing or singing could bring swift and violent death. Survival in this world required absolute silence.

More than a thriller, “A Quiet Place” is a thought experiment. It explores the difference between mere survival and human thriving. Sound is a primary element of living life together. Raising a family, working together and enjoying one another’s company are all noisy activities. What of these would you give up in order to survive?

The COVID-19 monster does not bring a certain, violent death. But it does bring death to some. The infection fatality rate (IFR) is still uncertain, even after six months of data-gathering. Is it one out of every 20, as first suggested? Or is it one in 5,000 or more?

Also unknown are the exact ways that infection can come. Early in February, a German study claimed that the virus could be transmitted even before the carrier showed symptoms. That study has since been discounted. Last week the CDC withdrew previous claims that the virus spreads by contact with contaminated surfaces. Neither of these claims has been proved, nor has either been disproved.

These three unknowns — IFR, asymptomatic transmission and infection from surface contamination — are the unknowns that have put the world into a remake of “A Quiet Place.” The monster is out there. It can come for anyone at any time. But we lack clarity on what triggers its random arrival.

The impulsive response has been to make every place a quiet place. Invoking Wyoming Statute 35-1-240(a)(iv), the governor has allowed the department of health to “forbid gatherings of people” on the statistical theory that it is “necessary to protect public health.”

“Gatherings” were defined as “any planned or spontaneous event, public or private, bringing together, or likely bringing together, ten (10) people or more in a single room or a single confined space at the same time.” This could be applied so broadly that 10 people in the Superdome are indistinguishable from ten people in a phone booth.

To compensate for unclear language, Public Health Order No. 2 exempted select facilities and buildings from the start. It was never a ban on all gatherings as 35-1-240 allows. It was a ban on the use of some buildings but not others. It forbids gatherings for some purposes but not for others.

Thankfully, amid a dozen specific carve-outs is one catchall. “Retail or business establishments, where more than ten (10) people may be present but are generally not within six (6) feet of one another,” are exempt from this order.

This made sense of the order. Had gatherings been defined this way in the first place, most of the exemptions would have been redundant and unnecessary. It serves to strike a balance between the cessation of all social activity and the commonsense precautions that mitigate the spread of a potentially deadly virus.

It also made the gatherings order easily defensible against First Amendment claims. Rather than shuttering some free association and free exercise while exempting others, the “6-foot rule” was evenhandedly applicable to all.

Most importantly, it worked.

Two and a half weeks after the order, new Wyoming cases of COVID-19 peaked at 90 per day on April 9, and have not risen above 27 since. Eight days later, the number of recovered cases surpassed the number of active cases. Most importantly, predictions that Wyoming would suffer 134 deaths by June 1 have been reduced by a factor of ten. As of this writing, we stand at 12.

All this data prompted the state and the nation to begin a process of reopening. On April 28, Gov. Mark Gordon held a press conference to roll out new health orders that would go into effect on May 1. While substantial changes were made to the two orders governing the service industries, the order about gathering remained unchanged except for a provision that allowed counties to request a “variance” for each local situation.

Then, a funny thing happened on the way to the reopening. Rather than increasing the freedom to gather, multiple additional restrictions were imposed. It began in Platte County. The morning after Gordon’s press conference, churches were singled out in an email from the county health nurse. She told them that the county was working on a variance on their behalf.

Ronald Reagan once quipped, “The nine most terrifying words in the English language are: I’m from the government, and I’m here to help.” On the day the new orders went into effect, the churches of Platte County suddenly found themselves under a variance that was stricter than anything they had faced before.

Those that had been holding multiple services of 10 each suddenly had the additional burden of sanitizing the building from top to bottom between each service. They had government instructions on mandatory masks, worship forms, and forbidden activities — all under threat of criminal prosecution.

Uinta County churches experienced the same phenomenon. After consulting with one another, churches had decided not to ask for a county variance. But without their knowledge or approval, a variance was sought anyway.

Language nearly identical to the Platte County language was sent from the state attorney general’s office to the county health officer. This language was pasted into a request to the state health officer and, voilá, by March 6, Uinta County churches were under the same extra measures as those in Platte.

For six weeks of COVID-19 restrictions, the governor had carefully avoided any mention of churches in deference to the Constitution’s protection of the free exercise of religion. Now, just when every other service industry was being given greater room to operate, churches were singled out and worship was restricted.

Churches in 12 other counties were similarly restricted before the governor published an updated order on May 13 that imposed these restrictions on the entire state. Three weeks ago, I wrote to commend the governor for his restraint. Today I plead with him to return to that restraint.

Under the former language, church and state worked together to protect the public health. Churches did their part without any threat of criminal prosecution. There was absolutely no reason to insert that threat and additional restrictions now.

Give guidance and data to support it. The churches will continue to act responsibly to protect public health as they have until now. Government commands about worship and threats of criminality will not serve the public health any better. It will only serve to undermine public confidence in the government’s respect for the Constitution.

I am not a constitutional lawyer and do not want to be. Others may take the state to court to litigate the letter of the law and precedents set by arcane case law. For myself, I want only to reassert the first principles that American laws and constitutions were meant to protect.

The true worship of God is an essential public good. It makes the difference between mere survival and full human thriving. For this reason, it is not merely to be tolerated, but encouraged.

Since the state has neither the competence nor the authority to determine the true worship of God, the best its officials can do is to protect the free exercise of religion and pray that its worshiping citizens worship rightly. Using state power to dictate religious doctrine or practice is always an abuse of state power and can only harm the public good.

Jonathan Lange is an LCMS pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. He can be reached at [email protected] Follow his blog at OnlyHuman-JL.blogspot.com.

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