2020 | Week of May 11 | Radio Transcript#1359

Are our constitutional rights and freedoms designed just for times of peace and prosperity, when things seem to be going well, or are they also designed to protect us even in times of, say, a statewide emergency, like a declared public health emergency? In times of crises, is it appropriate that our constitutional rights and freedoms be set aside for what some would say is for the “greater collective good”?

That’s really the essence of a lawsuit that was recently filed with our state supreme court by two Wisconsin citizens. One of the plaintiffs, Jeré Fabick, is a resident of Waukesha County who alleges the travel and gathering restrictions prevent him from exercising his constitutional rights to speech and to assemble even in protest of the orders given by the governor and the governor’s head of the Department of Health Services, Secretary-designee Andrea Palm.

The other plaintiff, Larry Chapman, is from Walworth County and according to the petition is a Christian who attends Lakewood Baptist Church in Pewaukee. Mr. Chapman claims he is being deprived of his right to religious freedom by the extended stay-at-home order and alleges that even though the governor has included churches in the “essential services” category, churches are being treated differently from other entities in that category.

In the lawsuit, the plaintiffs point out that grocery stores, for instance, deemed essential services because they have food, have people in the parking lots and in the store often in much closer proximity to each other than could be accommodated in churches for limited services, done respecting fully social distancing and proper sanitizing.  Essentially, the lawsuit says churches have been impermissibly singled out for selective enforcement.

I believe the wording of the opening document filed by the plaintiffs is significant and perhaps even instructive.

”The liberties protected by the Wisconsin Constitution are not fair-weather rights. No, like their counterparts under the federal constitution, those constitutional freedoms were designed to endure through ‘the various crises of human affairs.’[1] Those who enshrined those rights in this State’s charter ‘knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.’[2] And the liberties they passed down to us, and wrote out in the pages of our most basic law lest they be forgotten or ignored, were meant to guard against usurpation, no matter how well intentioned, even in times of crisis.

The brief further says, “This case involves a clash of fundamentals. No one doubts the seriousness of the current public health crisis caused by the COVID-19 pandemic, or that it poses life-and-death risks to Wisconsin’s citizens, especially those who are elderly or otherwise infirm. But the actions Respondents have taken to combat those risks, no doubt in good faith, have gone too far, needlessly infringing our most basic constitutional liberties—to an extent that is without precedent and that would have been virtually unimaginable in a free society just two months ago. The Emergency Order Respondents have promulgated and enforced, EO 28, includes restrictions that are simply irreconcilable with the founding constitutional commitments of this State….”[3]   

The brief goes on to assert that essentially the restrictions put in place by the extended stay-at-home order violate several provisions in our state constitution. Obviously one of the main allegations is the abridging of religious freedom.

Our state constitution actually is very clear on religious and right of conscience freedoms. Article I, Section 18 of the Wisconsin Constitution says, “The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed;..”[4]

Through the years, especially in a fairly recently 2009 case,[5] our state high court, comprised of seven justices elected at-large by the voters in our state, has held a very strict interpretation of this constitutional provision, reiterating in this significant decision that the phrase “shall never be infringed” means exactly what it says; and that government has to have an incredibly compelling reason to infringe our religious freedom and any infringement, government must be able to show it was done in the least restrictive manner. This case will tell us if this high court, which has some different justices on it from the 2009 case, still holds to this strict interpretation. Does a declared emergency, even a statewide public health crisis, give government officials the right to set aside our constitutional rights and freedoms? We are about to find out as we once again live out the reality that elections have consequences.

This is Julaine Appling for Wisconsin Family Council reminding you the prophet Hosea said, “My people are destroyed for lack of knowledge.”

[1] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis original).

[2] Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 650 (1952) (Jackson, J., concurring).

[3] http://www.thewheelerreport.com/wheeler_docs/files/050420wscfabickmemo.pdf

[4] https://docs.legis.wisconsin.gov/constitution/wi/000226/000020

[5] https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=38088