Some thoughts on the Lawsuit against Governor Kelly


Introduction
I have seen a good deal of pushback on social media concerning the lawsuit filed by two Kansas churches late last week against Governor Kelly’s executive order limiting public and private gatherings to no more than ten people.  The pushback has come from some dear Christian friends, good and godly people whom I love and respect in the Lord.  They have raised several points I would like to address.  But first some background.

Background
In order to combat the spread of COVID-19, Governor Laura Kelly issued executive order 20-18 on April 7, prohibiting “all public or private mass gatherings.”  The order defines a “mass gathering” as “more than ten people.” 

With the help of the Alliance Defending Freedom, two Kansas churches filed suit against the governor in the U.S. District Court for the District of Kansas to challenge the order as it applies to churches.  The plaintiffs are First Baptist Church in Dodge City (pastored by Stephen Ormond) and Calvary Baptist Church in Junction City (pastored by Aaron Harris).

The churches brought the suit because the executive order imposes greater restrictions on religious gatherings in churches than on gatherings for secular purposes in places like libraries, restaurants, bars, and shopping centers.  Gatherings of greater than ten people are permitted by the order in these locations so long as “social distancing” measures are observed, but they are not permitted in churches.  The court granted the churches’ motion to issue a temporary restraining order.  The next step is a hearing scheduled for tomorrow (Thursday, April 23) on the churches’ request for a preliminary injunction. 

Objections
As I said, there has been some pushback against the lawsuit—and not just from people who are hostile to the faith.  Even some Christians have objected to it.  Here are several objections I’ve encountered.

Objection 1
It is contrary to the teaching of Scripture for Christians to initiate lawsuits.  Paul’s instruction in 1 Corinthians 6:1-8 forbids us from doing so. 

Answer:  This is not an accurate understanding and application of the text.  This is not the place to do a detailed exegesis of the passage, but a few comments are in order.  First, we must remember that the Lord himself made provisions for a just society by establishing a legal system in Israel, giving them an extensive body of case law, and requiring a high standard of evidence for conviction.[1]  All of this presupposes certain God-given human rights,[2] including the right to seek a redress of grievances by an appeal to the governing authorities  when we have been wronged.  He would not have made these provisions had he not cared deeply about justice,[3] nor can it be wrong to avail ourselves of this divine gift when our cause is just.

Second, Paul finds fault with the Corinthians for (1) wronging and defrauding one another, (2) taking their grievances with one another before courts comprised of unbelievers rather than before the church, and (3) an unwillingness to overlook and forgive offenses. 

The reason he finds fault with (1) is obvious.  As to (2), remember that he was writing long before western institutions, including the courts, were reshaped by the influence of Christian teaching.  There was less likelihood of a just outcome in courts informed by a pagan worldview; and it would be shameful and detrimental to the cause of Christ for Christians to air their grievances before those whom they hoped to win to him by their godly lives.  And as to (3), Paul teaches that it is a virtue to patiently suffer wrong.  “To have lawsuits at all with one another is already a defeat for you.  Why not rather suffer wrong?” (1 Cor. 6:7).  He is following Jesus’ instruction to turn the other cheek, to absorb an offense and forgive, without striking back.  But the very analogy Jesus uses demonstrates that he has relatively minor private offenses in mind.  Is it legitimate in this case to reason from the lesser to the greater?  That is, does the same “turn the other cheek principle” hold true if the offense is a major one?  To take an extreme example, if someone should kidnap and kill my son, should I turn the other cheek and let him do the same to my daughter?  Somewhere in the range between these offenses (a slap on the cheek and murder) the victim may say, “The offense is too great to bear,” and so turn to the authorities for help.

Another thing to consider is that in the case of serious offenses, it is not a private matter.  A serious crime is a public offense.  Refusing to pursue a legal remedy not only prevents the victim from being made whole by restitution or compensation but also imperils others in society by allowing the bad actor to continue to act badly.  And when the bad actor is a public official who denies the rights of an entire class of citizens, well then, the risk is even greater if the actions are not challenged.

The governor’s executive order unfairly imposed—intentionally or not is immaterial—greater restrictions on religious gatherings for churches than on gatherings for secular purposes in other venues.  If that kind discriminatory action is allowed to stand through Christian forbearance, it may well set a precedent that doesn’t bode well for the future of religious liberty.

Objection 2
The second objection is similar to the first but appeals to the example of Jesus.  He could have asked the Father and the Father would have sent more than twelve legions of angels to defend him (Matt. 26:52-53), but he gave up his rights when he gave himself over to death (Phil. 2:5-8).  He didn’t insist on maintaining his rights, and we shouldn’t insist on maintaining ours.

Answer:  We must bear in mind that Jesus had a unique redemptive mission.  He temporarily gave up the use of those rights and powers he possessed by virtue of his deity in order to allow himself to be killed as a sacrifice for our sins.  But the very uniqueness of his calling suggests that we ought be cautious in how we apply his example.  There clearly is not a one-to-one correspondence between his situation and ours.  The lesson Paul draws from it, and urges upon the Philippians, has to do with their interactions with each other, not with the state.

The better example for us is Paul because his circumstances were more like ours.  When he was in Philippi, he rebuked the local officials for having deprived him of his rights as a Roman citizen (Acts 16:35-39).  This was a serious offense, and the officials could have been punished severely, hence “they were afraid when they heard that they [Paul and Barnabas] were Roman citizens.”  For other examples of Paul pressing for his rights to be recognized and maintained, see Acts 22:23-29; 25:6-12. 

Objection 3 
Loving your neighbor as yourself requires you to stay home.  This is what it means to care about “the least of these…those who are prone to get this virus from people who think they are the church by demanding their rights.”   

Answer:  There are three things to say in answer to this.  First, there is a difference between defending one’s rights and exercising them.  Having successfully defended their rights in court, churches may deem it wise or unwise to gather during the present crisis depending on the size of the congregation, the size of the sanctuary (relative to the size of the congregation—to allow for physical distancing), the demographics of the congregation (whether or not it has a lot of members at risk), the prevalence of the virus in the community, etc.  I suspect that different churches will make different decisions based on their own particular circumstances. 

Second, loving our neighbor does indeed require that we take measures to minimize the risk of passing the virus on to those who are most vulnerable.  There is absolutely no question about that.  And since most of the vulnerable are elderly, other biblical commands come into play, those requiring us to honor our elders (e.g., Ex. 20:12; Lev. 19:32).

Third, we have other neighbors to love, too, those whose lives and livelihoods are at risk because of the lockdown.  It is easier to quantify deaths with or from COVID-19 (not the same things, by the way), than it is to count the number of deaths that result from the measures taken to fight it:  delayed medical check-ups that might have revealed cancer, heart problems, or other serious issues that won’t get detected early enough to be treated effectively; the rise of suicide rates that historically correlate to unemployment; to say nothing of how the closing of the U.S. economy affects third world nations where millions of people live at a subsistence level, many of whom are likely to die as a result.  But who will count them as victims of the pandemic?


Conclusion
I think it is entirely proper for the government to require the quarantining of the sick (Lev. 13:47-59; 14:33-56), but not the healthy; to issue warnings, urge caution, teach proper hygiene, give suggestions about safe distances and practices, and then let free men and free women in a free society estimate their risk and make their own decisions accordingly.  But if a government imposes a stay-at-home order, it should not single out religious gatherings for greater restrictions than gatherings for secular purposes.  The two churches that filed suit against the governor were not acting contrary to the teaching of Scripture in doing so.  They acted well within their moral and legal rights, and I applaud them.  Some have said the pastors only filed suit to make a name for themselves.  Perhaps.  I don’t know them personally and I’m not in a position to judge their motives.  But I see their actions as safeguarding religious freedom from a governor who has failed to show proper regard for it. 

One thing is for sure, we need to pray regularly for our leaders at both the state and federal level that they may be given the wisdom of Solomon.  They bear the weight of a tremendous responsibility.  Their actions affect the lives and livelihoods of millions of people. 


[1] For the appointment of judges, see e.g., Ex. 18:13-26; Num. 11:16-17, 24-25; Deut. 1:9-18; 16:18.  For a fine example of case law, see e.g., Ex. 21:1-23:9.  For rules of evidence, see e.g., Deut. 17:6; 19:15.  It should be noted that requiring a high standard of evidence for conviction presupposes one of the most cherished principles of western jurisprudence, that a defendant is innocent until proven guilty.
[2] These are inferred from the law itself.  For example, when the law says, “You shall not murder,” we infer a right to life; when it says, “You shall not steal,” we infer a right to private property, etc.
[3] One senses the Lord’s passion for justice in Deut. 16:20, “Justice, and only justice, you shall follow, that your may live and inherit the land that the Lord your God is giving you.”  It should be noted, too, that God’s passion for justice stems from his love for us.  He doesn’t want me to harm you, and if I do, he wants me to make it right, and vice versa.

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