Thomas More Society Files Suit Against Illinois Lockdown Order

In the sort of case that's going to become more common, the Thomas More Society, which characterizes itself as a non-profit, pro-life public interest law firm (though as far as I can tell, not specifically Catholic), has filed suit on behalf af an Illinois evangelical parish that is shut down due to Gov Pritzger's lockdown order.

An Evangelical Christian church in Lena, Illinois is suing Governor “JB” Pritzker for discriminating against churches and people of faith with his latest stay-at-home executive orders, issuing and enforcing unconstitutional edicts during the coronavirus pandemic. Today, Thomas More Society attorneys filed a federal complaint and motion for temporary restraining order on behalf of The Beloved Church and Pastor Steve Cassell with the United States District Court for the Northern District of Illinois in Rockford.

Cassell and his church have been forced to shut down due to Pritzker’s Executive Orders. They were issued “cease and desist” orders and have been threatened with arrest and prosecution by local officials in Stephenson County, who are also named in the suit.

. . . It is noted in the filing that so-called “Essential Businesses and Operations” may have gatherings of larger than 10 people, while religious gatherings of any number are forbidden, on pain of criminal prosecution. The lawsuit reports that in his stay-at-home orders, Pritzker “declared churches and church ministries ‘non-essential’ and commanded them to shut down.” It also notes that “Pritzker forbade congregants from leaving their homes to attend church or church ministries. On the eve of Easter, the holiest day on the Christian calendar, Pritzker expressly prohibited even no-contact, drive-in services in Illinois church parking lots.”

Citizens generally since March have been willing to undergo temporary restrictions in good faith. based on what appeared at the time to be the informed judgment of civil authorities on appropriate measures to limit the spread of a pandemic. Developments have emerged since the start of these restrictions to suggest that, in all but a limited number of localities, the estimates of COVID-19's spread were beyond what was experienced by orders of magnitude.

In addition, governments have in some cases shown themselves unwilling to relax these restrictions, which have proved in practice to be arbitrary. Restrictions on religious gatherings have been one of the most universal of these, and even in US states that are gradually reopening society, the ability to attend church services in person still remains something to be restored months in the indefinite future. However, it is less and less clear that the recommendations from epidemiologists that led to this restriction were well founded.

The neo-Thomist Catholic philosopher Edward Feser, who had earlier recommended charitable compliance with the restrictions, is clearly changing his mind:

I have argued both that the lockdown was a justifiable initial reaction to the Covid-19 crisis, and that skeptics ought nevertheless to be listened to, and listened to more earnestly the longer the lockdown goes on.

. . . This is especially so given that the initial justification for the lockdown (the prospect of overwhelmed hospitals and shortages of ventilators and other medical equipment) no longer applies. . . . [T]he lockdown entails actions that, in ordinary circumstances, would be very gravely immoral.

When a surgeon contemplates sticking a scalpel into you, it isn’t merely a matter of weighing the costs and benefits of prima facie equally justifiable courses of action, and then opting for what strikes him as on balance the best one. Rather, there is an extremely strong moral presumption against his taking such action. And if he tells you that he nevertheless thinks he should do it, the burden is not on you to convince him that he shouldn’t, but on him to convince you that he should. He must not do it otherwise. And notice that this remains the case even though he is the expert.

Now, all things being equal, temporarily forbidding someone to work is, of course, not as grave as doing surgery on him. But there is nevertheless a very strong moral presumption against the former as well. As Fr. John Naugle reminds us in an essay at Rorate Caeli, laborers have a right under natural law to work to provide for themselves and their families. To interfere with their doing so when such interference is not absolutely necessary is a grave offense against social justice (and not merely against prudence), certainly as social justice is understood in the natural law tradition and in Catholic moral theology.

US Attorney General William Barr has expressed very similar views:

“Now that the curve has been flattened and the hospital system has not been overwhelmed, it is time to start rolling back some of those restrictions,” Barr reiterated.

“We will be on the lookout for restrictions that are too widespread, too generalized or unduly discriminatory towards liberty, such as religious liberty or speech, and in the appropriate case we would consider taking action."

I will cover issues of interest as they apply to natural rights and the US Bill of Rights here as appropriate.