Tag Archives: public witness

Don’t Do the Crime, If You Can’t Do the Time?

Robert E. Wright  writing at American Institute for Economic Research has a helpful summary of the recent Wisconsin Supreme Court case overturning the safer-at-home order. While as a practical matter the decision is less than perfect, I do think the justices got it right here when they point out that the safer-at-home order imposed criminal penalties without meeting the legal standard of what constitutes a crime:

Crimes created by the Legislature in statutes must have specificity in order to be enforceable. … Because Palm fails to understand the specificity necessary to a valid criminal statute, she also fails to understand that no less specificity is required of a rule to which criminal penalties are assigned.

In US law are three (or maybe four) elements of a crime:

  1. Mental state (Mens rea)
  2. Conduct (Actus reus)
  3. Concurrence
  4. Causation

That is, you must have the intention to commit a crime (#1), must engage in a criminal act or unlawful failure to act (#2), and these must happen at the same time (#3). The last element, causation, basically means that the act or omission resulted in harm.

In overturning the safer-at-home order, the justices argued (among other things) that the state failed to meet all three (or four) of the elements of an actual crime. This matters precisely because the state was treating (or threatening to treat) violation of the safer-at-home order as a crime.

(As an aside, while they are helpful to me as a pastor the county’s directives also seem to impose rather harsh penalties: “Violation of or failure to comply with this Order is a crime
punishable by fine, imprisonment, or both. (Wis. Stats. §§ 252.03 & 252.25) and a violation of Dane County Ordinance §46.25(1) and Madison General Ordinance §7.05(6) punishable by forfeiture.” Though I’m not a lawyer, I can’t help think these might not stand a legal challenge.)

The rule of law depends upon the confidence of the citizenry that the law is just and fairly applied. When otherwise legal acts are criminalized–but only for some individuals, under certain circumstances, people lose confidence in not only the law but the lawgiver.

In Christ,

+Fr Gregory



Thoughts on obeying (or not) a quarantine order

Early on I posted a short piece on my Facebook page about civil disobedience in response to the various quarantine orders. At the time I wrote that while

There is some–and I stress SOME–evidence that lockdowns are ineffective. At the same time, unlike theology, science speaks in terms of probabilities. It may very well be that lockdowns are ineffective. As for the corona virus, it may not be as contagious or deadly as we think it is. But again, none of this is absolutely certain but only “more or less” likely and then only within defined parameters.

Then as now, I would argue that while we have a right and even obligation to resist and even disobey an unjust law, the law must be CLEARLY unjust. In the case of the quarantine orders this is simply not the case.

As an Orthodox Christian and an American citizen I understand that the State has broad police powers. But this authority is not meant to turn earth into heaven but keeping it from degrading into hell. In the case of the pandemic, these police powers extend to protecting the innocent and those who cannot defend themselves. This is the MORAL justification for quarantine laws.

While we cannot say so absolutely, especially in the first days and weeks of the pandemic it is likely that the quarantine served to protect innocent lives. As Orthodox Christian this means that I had (and have) an obligation to obey these laws even if–as I did–I think they were likely an over-reaction and (as most everyone acknowledges and bemoans) based on incomplete data.

Thinking the law is likely unnecessary is not a sufficient, objective moral basis for civil disobedience. On this there can be no argument. The law must be in and of itself unquestionably unjust.

At the same time if conscience compels disobedience to an poorly thought out law AS IF IT were unjust, then those individuals who break it must accept the ALL the consequences legal as well as medical for their actions. Civil disobedience is an act by which I intend not simply to disobey a law but show the law to be unjust (not foolish but unjust) by willingly–even cheerfully–accepting the consequences of my actions.

This means, if I break the law (which I personally have no intention of doing), I must say, “I have been punished by the State because I freely chose to break an unjust law.” Likewise, in this case, I must say, “I have gotten ill (should this happen) through no one’s fault other than my own because I broke a law I thought unjust.”

But what I cannot say, to another person–to my spouse, my child, my friend “You are sick through no fault of your own but because I freely took it upon myself to break a law I thought unjust and so risked not only my health but yours.”
Civil disobedience is immoral if my actions that endanger a third party.

I was reminded of all this by a recent post by National Review’s Kevin D. Williamson:

…we are greedy, and we are childish. We want to enjoy the pleasures and benefits of civil disobedience without paying the accompanying price for them. King George would have been doing his duty to hang George Washington et al. We hanged John Brown. Henry David Thoreau spent time in jail for his antiwar activism, as did the Reverend Martin Luther King Jr. in the cause of civil rights. Thoreau did his time happily. “Under a government which imprisons any unjustly,” he wrote, “the true place for a just man is also a prison.”

He goes on to conclude that accepting the punishment for my disobedience

…is part of the deal, too. If we were to take leave of our senses and take seriously the proposition that Dallas County’s coronavirus order is tyranny in the sense the Founding Fathers had in mind, then surely seven days’ imprisonment would be only a modest price to pay for opposing that tyranny. By way of comparison: Sister Megan Rice, 84 years old at the time of her sentencing, served two years in a federal penitentiary for her lawbreaking anti-nuclear protests, and she might easily have spent the rest of her life there had not her conviction been overturned.

Orthodox Christians are not anarchists. We accept the State as willed by God as necessary in a fallen world. We owe obedience to the State even when doing so means our rights are compromised. In fact, we only have an obligation to disobey the State when it seeks to compel us to disobey God.

In Christ,

+Fr Gregory