“I, Deena Hinshaw”: On Canada, COVID-19, and religious liberty

Whereas I, Dr. Deena Hinshaw, Chief Medical Officer of Health have initiated an investigation into the existence of COVID-19 within the Province of Alberta.

Whereas the investigation has confirmed that COVID-19 is present in Alberta.

Whereas under section 29(2)(b)(i) of the Public Health Act, I may take whatever steps I consider necessary…

I have now taken the step of imprisoning Pastor James Coates of GraceLife Church in Spruce Grove.

Yes, yes, that last line is interpolated by yours truly, but it fits well enough. Under the authority of Alberta’s Empress of Health, James Coates was hauled away in wrist and ankle cuffs and imprisoned by the Edmonton constabulary for refusing to acknowledge that she is entitled to take whatever steps she considers necessary, should those steps trespass upon the jurisdiction proper to GraceLife Church.

As the affidavits filed in his defence show, Coates and his congregation hold that the state has indeed trespassed in its refusal to allow the whole church family to meet together. The state, for its part, has determined that it was Coates who trespassed, by persistently inviting the whole family to show up on Sundays in flagrant violation of Alberta’s fifteen percent capacity rule. His family is behind him (indeed, his extended family) and the fight is on.

As this case wends its way through the courts, it will direct fresh attention to some very old questions about the line separating secular and religious jurisdictions. For the state is now given to thinking that it can draw that line where and as it likes, suspending religious as well as civil rights and freedoms for as long as it sees fit. Certainly it does not allow that religious communities may make their own determinations about health and safety, as GraceLife has. Nor does it comprehend what Pastor Coates wishes it to comprehend – the need of his community to meet as an entire body or family on the New Testament model (1 Cor. 11:20).

The affidavits in the Coates case contain large tracts of scripture and the doctrines taught at GraceLife. These the courts will not want to touch, beyond determining whether Coates is acting on the basis of recognizable religious beliefs. But they will have to wrestle with the fact that Christians (these ones, at least) do not admit what the modern secular state thinks everyone should admit; namely, that there is no higher authority in public affairs than the state itself and that meetings of the church fall under its own jurisdiction.

The state, of course, requires justification for infringing constitutionally recognized rights and freedoms, which include matters of conscience, religion, speech, and association. The courts will have to test its justification. Does the infringement meet a pressing and substantial objective? Has it a rational connection to that objective? Does it produce only the most minimal impairment possible? And is it proportional in the balancing of goods and harms? These requirements of the Oakes test, however, are now relativized in Canadian constitutional law by the Doré ruling, which permits judges to focus on the procedural rather than the substantive, working with the more flexible administrative criterion of “reasonableness.”

The Province of Alberta, like many other jurisdictions the world over, has justified its infringements of rights and freedoms by appealing (often quite spuriously) to the pandemic. But that of itself does not settle anything. Like some other partners to civil society, GraceLife has not been content to leave judgments about the pandemic to the WHO or to the local CMOH. It disputes the right of the state to micromanage our lives and our responses to the pandemic. Moreover, it disputes the new, highly malleable definition of a pandemic.

The reason we put ‘pandemic’ in quotes is because the definition of a pandemic was changed about ten years ago. At one time, a pandemic was defined as an infectious disease that resulted in a certain percentage of excess deaths over and above normal annual averages. The definition was changed in connection with H1N1 to remove this threshold. Ten years ago, COVID-19 would not have qualified as a pandemic. In fact, not even close.

All quite true; indisputably true, as alas is the frightful mismanagement of the COVID crisis. In Canada the coronavirus has killed about 537 per million, a little over 0.05 percent of the population. The vast majority were over seventy years of age, the highest percentage being over eighty and the next highest over ninety. Like an ordinary flu – though it is not an ordinary flu but a product, mounting evidence suggests, of human design – COVID-19 kills the elderly and the ill, and does its killing seasonally. If that’s a pandemic, pandemics are routine.

And there’s the rub. It is becoming routine for governments to curtail rights and freedoms such as that of GraceLife Church to meet as it wishes, gathered together in one time and place. “I, Deena” diktats from the emperors of health are becoming the new holy writ. What’s next? Denying the unvaccinated the right to attend church or synagogue, or even to fetch their own groceries? As David Solway observes, using Hayek’s words, “One need not be a prophet to be aware of impending dangers.”

The Voice of the State and the Voice of God

Pastor Coates, to his great credit, does not confuse the voice of the state with the voice of God. He insists that the state has no authority at all but what it receives from God, and that it never receives authority to bypass or overrule the One who lends it its authority. Like the prophet Daniel and his friends, Coates is willing to suffer incarceration to preserve his allegiance to God. He is willing to engage in civil disobedience for righteousness’ sake and to pay the price. In this he puts to shame not only his Catholic premier, the Honourable Jason Kenney, on whose watch all this is happening, but many clerics and lay leaders of our Catholic churches and other Christian communities.

These, of course, may read the whole situation quite differently than Coates reads it, just as they read the scriptures differently. Yet too often they give the impression that the one thing God does not want is civil disobedience – that God, like the state, would prefer to see all corporate worship abandoned before any state directive, however indefensible, is disregarded. A few even help foment the frenzy of fear that ensures full compliance with the state, while others complain about the state “forcing” people to violate their consciences (something neither the state nor anyone else is actually capable of doing). Not so James Coates, who thinks all such responses incompatible with the Christian gospel, as indeed they are.

But how will the courts deal with a dissenter who acts with the courage of his convictions, boldly practicing civil disobedience in the name of Jesus at great personal cost? That is difficult to say. The business of his bail conditions, which he refuses to accept, has been probed in court without success. Where it all goes from here remains to be seen. The law is a strange beast. Yet a case like Coates – in which religion comes to the fore precisely as a matter of bounden duty, of divine obligation – must force the question as to what latitude the state, whose secularity is said to render it free of all such duties and obligations, will grant to those who own these duties and who further believe that the state itself must acknowledge and make allowances for them. Whether dressed in the garb of constitutional or of administrative law, the Coates decision, when finally delivered, will tell us a great deal about where Canada is headed in matters of religious liberty.

I have argued in Desiring a Better Country that the current conception of the secular state is incoherent. To fancy the state a religion-free zone is already to make a religious judgment. It is to decide against the natural law postulate that “those who are in authority owe it to the commonwealth not only to provide for its external well-being and the conveniences of life, but still more to consult the welfare of men’s souls in the wisdom of their legislation” (Leo XIII). It is to decide, without public deliberation and in contradiction of Canada’s anthem and its Charter, that the commonwealth lies outside the care and command of God.

Given that secret judgment, it is no surprise to find the state quietly substituting this deity for that, or simply deifying itself. But when the courts are called upon to intervene, to decide whether the executive arm of the state can require universal obeisance to the god of health – who presently goes by the name Pandemic and whose high priests are called Chief Medical Officers – what are they to say?

If they say it can, they may be certain of this: they will have to commit more and more dissenters to prison. If they say it can’t, they will help clarify the limits of the state and its powers, putting a dent in its own religious pretensions.

What is at stake?

A great deal is at stake, obviously, for James Coates and his wife, Erin, and for their young children. A great deal is at stake for all who prefer conscience and liberty of soul to liberty of body. A great deal is at stake for human rights and for public reason and for sound political judgment in which citizens may have confidence. But there is something still more at stake in the Coates case than all that. What is at stake, ultimately, is the church/state distinction, which is essential to the modesty of both church and state.

As Leo observes in Libertas, “although the civil authority has not the same proximate end as the spiritual, nor proceeds along the same lines, nevertheless in the exercise of their separate powers they must occasionally meet. For their subjects are the same, and not infrequently they deal with the same objects, though in different ways.” They must therefore seek harmony – a harmony consistent with the fact “that of all the duties that man has to fulfill, that, without doubt, is the chiefest and holiest which commands him to worship God with devotion and piety.”

In other words, church and state must learn how to negotiate disputes along their common border and how to cooperate in their conjoint responsibilities. They must learn how to coordinate their respective jurisdictions without sacrificing first principles.

If the state alone gets to draw the line delineating these jurisdictions – hence to decide whether and how the church may meet and under which leaders – there really is no distinction. The state has assumed power over religion, a controlling power. China offers the preeminent model here, but any state incarcerating noncompliant clergy is following that model. (The Equality Act threatens to bring the same model to America, or to bring it back, whatever happens with COVID regimes.)

Ditto if the church gets to draw the line unilaterally. The church has then assumed power over the state simply by claiming full immunity from it, as if in principle the church can never act lawlessly because it is always a law unto itself. In theological terms, this exaggerated view of the libertas ecclesiae derives from a defective eschatology. But, while there are defects in the eschatology of GraceLife Church, this is decidedly not its position. Its position, rather, is that there are some things the state cannot require of the church, particularly things that touch on the chiefest and holiest duty of man.

The courts ought, therefore, to require the state to negotiate this jurisdictional border dispute with the church, and the church to negotiate it with the state. The first step to that, in the present case, would be to quash the charges against Coates, release him from prison, order the state to pay damages to him and his family, and mandate that the two parties begin again at the beginning with a good-faith process that pursues consensual accommodations, accommodations that respect the nature and responsibilities of each. That would be a solution good for the law, good for church/state relations, and good for liberty.

And Catholics? Catholics should ponder Pastor Coates’ costly stance with prayerful earnestness, asking themselves what price they themselves are willing to pay to preserve their allegiance to Jesus Christ, in so-called secular states increasingly insistent that they serve other lords and gods.