The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Schenck v. United States, 249 U.S. 47 (1919)
Schenck v. United States was a key case in American jurisprudence. It was not the first time a ruling of this type was made by either an American court or an English court before the emigration to the USA began. However, it is probably the pithiest, shortest, and clearest statement of a principle concerning the individual rights of citizens. Any right (freedom) that we have is not absolute but is balanced against the rights of others and any possibility of any “clear and present danger” that they may bring about against society, and Congress has a right to prevent those dangers.
Thus, in this case, the example is that a person using their freedom of speech to shout fire in a theater would so endanger others, because of the probable stampede that those words would cause, that the government has a right to both prevent and punish those who engage in such speech. In the same way, freedom of the press is limited by the common good. The press can be prohibited from publishing vital national security information. The press can be forbidden from publishing libelous statements, etc.
Second amendment freedoms can be legitimately limited by the government for the sake of safety. Thus, courts have, over and over, ruled that prohibitions against military-type munitions are legitimate. We are not permitted to own grenades, machine guns, fully-functional tanks, etc. I could go through the full Bill of Rights and show examples, over and over, that demonstrate that no right is absolute. All rights are tested against any clear and present danger that may exist if the right is allowed to be expressed without constraint.
There are those who claim to be sovereign citizens. They question the legitimacy of government and its right to impose laws and taxes. They claim that their declaration is enough to exempt them from those laws and taxes. No court has ever upheld their claims. If one lives within any country, then that person, in general, is subject to its laws.
You find this same principle in Romans 13. “Let every soul be subject to the governing authorities. For there is no authority except from God, and the authorities that exist are appointed by God. Therefore whoever resists the authority resists the ordinance of God, and those who resist will bring judgment on themselves.” It is worth noting that there is a parallel between what Paul wrote here and what he wrote concerning the Lord’s Supper. There he wrote of those who misjudge the Supper that some are sick and some sleep. If you resist the government you will bring judgment on yourself. If you misjudge the Lord’s Supper you may also bring judgment on yourself. When God sets up something, it is best to treat that something with respect and obedience to the rules concerning that something.
At the same time, it is also clear from early in the Book of Acts that there are times when the Church must refuse to obey. “But Peter and the other apostles answered and said: ‘We ought to obey God rather than men.'” So, it appears that a measure of judgment must be used. It becomes obvious that it is not a yes or no principle of obedience to the government, but a principle that must be balanced just like earlier I commented that the rights on the Bill of Rights are not absolute. Neither our rights nor the authority of the government is absolute, but each is balanced against other considerations. I think almost all of us would also agree that the authority of the Church is not absolute but must be balanced against other considerations.
Which brings us to this time of quarantine, although it is being called social distancing. May the Church refuse the government and continue to meet in large gatherings even during times of quarantine? Well, quarantine has a long history. The modern practice of quarantine began during the 14th century during the plagues that were sweeping Europe. The practice went into all European countries and is found in America through the 19th and 20th centuries. It is well worth noting that during the Spanish flu epidemic of 1918 the government closed down all businesses and churches and there were no large scale protests by the churches. In countries where the SARS epidemic of 2003 hit strongly, churches were also closed back then. Just like today, in both 1918 and 2003, there was a measure of allowance so that pastoral visits, confessions, and sacramental life could continue. The churches complied with both pandemic quarantines.
There is evidence of compliance with the government by the Church during times of epidemics. Having said that, the Church’s clergy and monastics have always been at the forefront of caring for the sick, to the point that the mortality and morbidity rate among them has been appreciable. So, what am I saying?
I am saying that the choices are not always clear. However, from history, it is clear that the Church attempts to obey the government in times of quarantine. It is also clear that the Church refuses to obey the government when it interferes with matters of faith. Constitutionally, the government has the right to decide that during times of pandemic the common good is more important than church worship. It is what I said earlier that no right is absolute in its application. It is also clear that constitutionally the government does not have the right to permanently shut down Church worship.
The choice for the Church lies between Romans 13 and Acts. To argue that the Church may absolutely refuse the government on any matter has already been settled. Church buildings meet all applicable building codes. Church schools meet all school codes. Church salaries meet standards and W-2s or 1099s are issued. In other words, in many ways, the Church has already demonstrated that it may not absolutely refuse the government. The question is whether this is a matter that requires us to take the Acts route and refuse the request of the government.
This post is already long enough that I will simply state that, yes, this is a matter on which the Church should comply this time. There is historical evidence that churches complied during times of quarantine. Church leaders from all jurisdictions and almost all denominations have either urged or decreed compliance. Were this a long-term closure, I would probably object. Were this a permanent closure, I would most certainly object. Were it merely a demonstration of government power over the Church, I would most certainly object. But, it is none of this. It is a humanitarian action to prevent people from becoming sick and others dying. In fact, it is an incredibly pro-life request. I see nothing with which to object.
In other words, individuals don’t have the right (inherent or otherwise) to infect others by refusing to self-quarantine? This begs the question: Should individuals have the right to refuse vaccinations when evidence supports that the general public could be harmed as a result?
It, legally, might come down to the difference between active and passive. In a time of quarantine, individuals who ignore the guidelines are actively endangering others. Anti-vaxxers are generally passively endangering others.
I note that during times of the spread of measles or other preventable diseases, anti-vaxxers are considered to have actively endangered the community. At that point one can see laws being passed to prevent them from being active dangers. In various states, anti-vaxxers have lost some freedom of expression precisely because the view of them changed from being passive dangers to being active dangers.
Fr. Ernesto: You write: “…anti-vaxxers are considered to have actively endangered the community…” One can endanger another through commission (intentionally refuse vaccination) or omission (failing to be vaccinated because of ignorance). The end result is the same: sickness or death to someone who practices best health care and submits to vaccinations.
Should the National Guard round up & quarantine those who engage in behavior that could infect the community? Or – does their freedom to be ignorant trump (supercede) the community’s right to good health? See link:
https://www.washingtonpost.com/business/2020/03/22/pro-trump-west-virginia-fight-convince-residents-pandemic-is-coming/?utm_campaign=wp_first_reads&utm_medium=email&utm_source=newsletter&wpisrc=nl_rainbow&wpmm=1
Actually, in Chile their version of the National Guard and military is out rounding up those who refuse the curfew and stay-in-place declarations. They have been charged and will need to go before a judge. I do not believe that they are incarcerating them, and I suspect that the penalty will be closer to a fine unless the coronavirus begins to seriously spread.
Because of the shape of Chile, because it is separated by the Andes from Argentina, and because of its population density, it has been spared from a high rate of infection. So, there is not much epidemiological pressure for forcible quarantine. Should the virus begin to seriously spread in Chile, then it is worth noting that the country has a prior history of detentions in camps. Those were the infamous detentions under Pinochet’s dictatorship.