Introduction
Last week we saw a major victory in federal court, for which we give deep thanks to God. A good news story about it can be found here, and down below I have included two press releases that will fill in a bunch of the salient details for you.
What I want to do for you first here is to frame the whole story theologically. There is a reason all this happened, and it did not come about by accident. It was a clash of worldviews, and this clash occurred at a pretty foundational level.
The Theological Frame
Let me give the over-arching principle first, and then walk through the events themselves. After that you can read the press releases that will serve as something of a jello dessert, filling in all the gaps you might still have after a substantial meal.
The issue at stake was limited government. Consistent Christians believe in limited government because they believe in both the sovereignty of God, and in the fallenness of man. With regard to the former, only God is infinite, which means that only God is capable of unlimited authority over anything. Only God is capable, and so if there is no God over the state, then the state becomes god . . . an incapable god.
With regard to the latter, God is holy and fallen man is unholy and corrupt, which means that only God is good enough to be entrusted with all government.
Scripture is clear that human authorities, including human civil authorities, are established by God, and so we have an obligation to honor and obey them (Rom. 13:1-7). But as this passage also makes clear, we are to honor them as deacons of God, as servants of God, as authorities who are themselves under authority. They must be kept under authority for reasons just mentioned above. We see that they have their marching orders from God. They have an obligation to reward the righteous and punish the wrongdoer, for example. This would mean that Christians understand them to be limited in their authority. For any Christian to acquiesce to the claim that any human government can be boundless or unlimited is to fall into idolatry.
We render to God what is God’s, and to Caesar what is Caesar’s. One of the things that belongs to God, and not to Caesar, is the determination of what belongs to God and what belongs to Caesar. Caesar does not get to determine that because Caesar is merely a deacon. He is assigned by God to a particular role. At the same time, part of that role is to make sure the citizenry stays in line—but with line defined by God.
There is a true balancing act here. James Madison put it this way.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”
James Madison, Federalist 51
The people must be governed, on the one hand. There must be institutions, structures, customs, and laws. But there must also be fixed boundaries such that those who are responsible for maintaining these institutions, structures, customs and laws are obliged (please notice that word obliged) to control themselves as well. In short, the governed must be governed, and the governors must also be governed.
The American system was designed to accomplish this by means of spreading civic authority across the different branches and levels of government, and doing so in a way that enabled the citizenry to have a direct role to play as well. The whole thing is a mobile suspended from the ceiling, and it is exquisitely balanced. Checks and balances are not a bug, but rather the central feature. Our national government is divided into executive, legislative, and judicial. The legislative is divided into two houses. In our time, under the executive, the administrative state has grown, like a swollen tumor, to threaten the balance. But despite the current threat, the balance is still functioning.
This system is also a federal system, which means that state and local governments retain a large measure of authority, and each of the state governments are also divvied up between executive, legislative, and judicial. And in this system, a significant amount of power is retained by the people directly. As the Tenth Amendment puts it:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.“
U.S. Constitution, Tenth Amendment
The point here is simply that, under this system, the people retain certain powers. Those powers include the right to worship God, to peaceably assemble, to keep and bear arms, to protest actions taken by their governments, and so on. It is not the case that they can do all these things provided they get a license first. In short, it means that the people have the right to gather outside city hall and sing psalms. This is a right we have always had, and have never relinquished to anyone. We actually don’t have the right to relinquish such a right. These rights came to us from our Creator, and were not bestowed on us by any human authority whatever. They are God-given rights, and so we have a moral obligation to guard them jealously.
This entire system, taken as a whole, is the system of authority that God has established for us here in this nation (Rom. 13:1-7). It is possible for certain poobahs in this system to get too big for themselves, and to try to decree things that they have no right to decree. When they do this, they are disobeying Romans 13. They are disobeying the law. This disobedience was anticipated by the Founders, who desired those elsewhere in the system to push back. And when citizens who do push back are reviled as troublemakers and agents of disruption by craven citizens, it needs to remarked that such craven citizens are failing in their Romans 13 duties as well.
In short, what constitutes the “existing authorities” should never be defined by those who flunked their high school civics class. If they had one.
What Happened Here
The plea is now being made that all the tyrannical over-reach on the part of various governments, agencies, and whatnot was necessary because, it is said, “we didn’t know.” But mandatory and coercive actions taken on the basis of confessed ignorance is not what we want. If we know the asteroid is going to hit the earth, then emergency measures may be needed. If we know the dam is going to break, then emergency evacuations may be necessary. Nobody with a brain ever disputed it. But when you know virtually nothing at all, and you make your panicked ignorance the foundation of a lockdown that destroys lives and livelihoods, then you are the threat, you are the problem. Besides, it is not quite true that “we didn’t know.” A bunch of us did know, and we were penalized for knowing. But now, in retrospect, it is all coming clear. Our elected officials were wrong about masks, wrong about lockdowns, wrong about distancing, wrong about the vaccine, and wrong about the law.
What happened was this. The City of Moscow passed a quite unnecessary ordinance requiring masks and distancing outside. The striking thing was that the ordinance that was passed explicitly exempted religious activities and protests from its requirements. We at Christ Church decided that we were going to protest this action by our city officials by meeting outside city hall in order to sing three psalms or hymns, and to conclude by singing the doxology. We then were going to head home, meaning we were going to be there around fifteen minutes. When we got there the parking lot had been emptied for us, and dots had been spray painted on the parking lot so that we could stand on them and thus maintain a six-foot distance. But the ordinance expressly said that none of that—masks, distancing—applied to us.
But the city was getting enormous pressure from people who thought we had to be breaking the law, and so three arrests were made. When this happened, we were not breaking the law, and the City of Moscow was breaking the law. This happened because people were yelling at them to do something, and so they did something. The three were to be charged with a misdemeanor, but a short time later the charges were dropped when the city realized they were going to have trouble prosecuting an activity that was entirely and perfectly legal. The three arrested individuals then filed suit in federal court over the violation of their rights. The decision that came down last week decided against a motion from the city to dismiss, and determined that the city was in the wrong on all the facts that mattered, and ordered the parties into settlement. That was the victory we have been rejoicing over.
But in the meantime, a very short time after the arrests, two of my grandsons protested the arrests by placing stickers on poles in downtown Moscow. This kicked off the Stickergate saga. More details on that are found in the press releases below.
But there are two notable things to say about this here. The first has to do with the current legal status of Stickergate. There was one conviction of one grandson, and that case has been appealed. This happened because the judge did not allow a First Amendment defense to be presented in the courtroom. The charges against my son (for having had the stickers made in the first place) and against the other grandson have been dropped. In addition, a lawsuit against the City of Moscow by the Stickergate Three has been filed. It is to be hoped that there will be a similar outcome in this lawsuit as there was with the Psalm Sing Arrests lawsuit.
The second thing is this. As this most recent court decision has made clear, the City of Moscow has spent an enormous amount of taxpayer money in order to prosecute a young man for protesting their illegal activity. Surely a better use for that money could have been found?
Two Press Releases, Back to Back
This one is from Gabe . . .
For Immediate Release Contact: Gavin O’melia
February 6, 2023 pengomediapr@gmail.com
My Fight for Constitutional Rights During the Pandemic
• Judge rules that Christ Church’s 2020 psalm sing protest of city covid restrictions
was a lawful and constitutionally protected gathering.
• City of Moscow acted unlawfully in arresting and charging protesters.
• Gabriel Rench and others are cleared of any wrongdoing.
• Constitutional rights cannot be suspended during a pandemic.
[Moscow, Idaho] – On February 2nd, 2023 Senior United States District Judge Morrison C England, Jr. denied the City of Moscow’s motion to dismiss Gabriel Rench’s case against the City of Moscow, as well as Moscow City supervisor Gary Riedner, city attorneys Mia Bautista and Elizabeth Warner, Moscow Chief of Police James Fry, and Will Krasselt, Megan Vincello, and Jake Lee for violating his 1st and 4th amendment rights.
From Judge England’s Memorandum and Order: “Plaintiffs [Protestors] should never have been arrested in the first place, and the constitutionality of what the City thought it’s [sic] code said is irrelevant…. The prosecutor’s charging decisions were likewise flawed.” Judge England did not hold back: “Somehow, every single City official involved overlooked the exclusionary language [of constitutionally protected behavior] in the Ordinance.”
The City of Moscow had moved for a summary judgment against Rench and two other protestors who had been arrested, Sean and Rachel Bohnet. But the City failed to meet its burden of showing both that the facts and the law were in their favor. Judge England’s ruling included a footnote stating that the court had not seen a failure like it in all its years on the bench, but: “This case shows, as the adage goes, there is a first time for everything.”
Gabriel Rench, who was a candidate for County Commissioner and a loud critic of City covid policies at the time of his arrest, was thrilled by the outcome: “As a local taxpayer, it sickens me, not only how much damage the City of Moscow did to local citizens and businesses with their ridiculous, so-called emergency orders, but that they would then turn around and spend taxpayer money fighting us for years when they had no case, they never had a case, and the outcome was inevitable, all thanks to their incompetence at reading their own ordinances before they started arresting political opponents. Yes, this is a constitutional victory for Idahoans, but it is also a showcase of how dumb petty, tyrannical mayors and unelected city officials can be, and where they end up when abused citizens have the endurance to fight back and defend their rights.”
The arrests happened on September 23rd, 2020 at a psalm sing protest in the parking lot of City Hall. The protest had been organized by Christ Church, where Gabriel Rench was a deacon, and the ensuing news coverage spread far and wide, even to President Trump’s Twitter feed. Many around the country were outraged by the decision of MPD to arrest peaceful protesters, while others raged at Christ Church for behaving, they believed, unlawfully and unsafely.
Since that time, Christ Church has proven to have been right about the flawed science behind Moscow’s covid orders, and now they have proven to have been right on the law as well. Their psalm sing was constitutionally protected “expressive and associative conduct” and officers did not even have grounds to ask for the ID of participants, let alone make arrests.
As a result of his wrongful arrest, Gabriel became the target of verbal abuse, threats of harassment and physical assault, and his family was put in danger, not only locally but nationwide. “It got bad,” Rench said. “So many people questioned my faith and my character, and others were out for blood. Even my extended family was harassed. To make matters worse, the Mayor and City Council doubled down on their stupid orders and refused any peaceful resolution with us. That’s how this turned into a three-year battle.”
Next up, Judge England has ordered a settlement conference, which he has offered to oversee: “Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code’s application, and Plaintiffs are so far reasonable in their damage requests, this case should not need to see the inside of a courtroom.” Rench is looking forward to closing the book on his struggle.
But for the City, the consequences of their actions surrounding covid may have only just begun. “Stickergate” is up next. “Moscow just keeps betting more taxpayer money on stupid,” Rench said. “The Wilson brothers, who were at the psalm sing with me, were charged with thirteen misdemeanors each for protesting my wrongful arrest with nondamaging stickers that made fun of the city. Turns out, those boys were right about the law, and the cops and prosecutors were in the wrong up to their necks. I’m betting Moscow has spent well over six figures of tax dollars chasing them by now, and judging from how they handled me, I doubt the City will stop until a judge is slapping them and saying he’s never seen anything like their failure in all his days. That’s our town. Sadly.”
After protesting Rench’s arrest, Rory Wilson was eventually convicted of one count of placing a sign or a flier without permission, which is a misdemeanor. Charges against his brother and his father were dropped. The three Wilsons remain the only people ever cited or prosecuted for placing a sign or flier in Moscow in the entire history of the City’s ordinance. Rory’s case is now on appeal. All three have filed a lawsuit against the City of Moscow et al
Idaho Citizens Victorious in Lawsuit Over City of Moscow’s Unconstitutional Treatment
Thomas More Society Successfully Champions Victims’ First Amendment Rights in Unlawful Covid-Related Arrest
Media contact: Tom Ciesielka, 312.422.1333, tc@tcpr.net
(February 6, 2023 – Moscow, Idaho) Three Idaho church members have triumphed over the City of Moscow, Idaho, after suing the city and its officials for their unlawful arrest in September 2020. Thomas More Society attorneys filed suit for the Christ Church trio who were arrested almost two and a half years ago during a “Psalm Sing” outside the Moscow City Hall. In an order dated February 1, 2023, Senior United States District Judge Morrison C. England, Jr., denied the city’s Motion for Summary Judgement and sent the case for settlement. The City of Moscow had suggested that the case be decided in its favor, but the federal judge disagreed.
Thomas More Society Special Counsel Erick Kaardal explained that Gabriel Rench, and Sean and Rachel Bohnet were arrested under a COVID-19 mask mandate issued by Moscow Mayor Bill Lambert. The three were not wearing masks, and because there were more than 200 protestors in attendance, were unable to socially distance. However, the ordinance that they were arrested and prosecuted under had an exception for First Amendment activities.
“Mr. Rench and the Bohnets were arrested even though law enforcement officers were aware of the First Amendment protections under the mayor’s emergency order,” stated Kaardal. “The city violated its own ordinance when law enforcement wrongly arrested Gabriel Rench and Sean and Rachel Bohnet. Those arresting officers demonstrated reckless indifference to these citizens’ First Amendment rights. It appears that the city’s law enforcement department was ‘weaponized’ to go after critics of the city government.”
Moscow officials claimed that the ordinance under which Rench and the others were arrested was ambiguous.
In response, Judge England wrote: “That is simply incorrect. The City’s Code could not be more clear: Under a plain reading of the Order in conjunction with the Ordinance, all expressive activity was excluded from the mask or distance mandate because such [as in this case] conduct was not explicitly addressed in the Order itself. In other words, during the relevant time period, those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the Constitutionality of what the City thought its Code said is irrelevant.”
Apparently, the Moscow prosecuting attorney was of the same mind, having moved to dismiss the arrest charges against Rench and the Bohnets. He told the court, several months after the arrests, that, while city codes allow the mayor to issue public health emergency orders, exemptions, unless specifically prohibited, include “any and all expressive and associative activity protected by the U.S. and Idaho constitutions, including speech, press, assembly, and/or religious activity.”
Read the Memorandum and Order issued February 1, 2023, in Gabriel Rench, Sean Bohnet and Rachel Bohnet v. The City of Moscow, Idaho, et al., by Senior United States District Judge Morrison C. England, Jr. of the United States District Court for the District of Idaho here [https://thomasmoresociety.org/wp-content/uploads/2023/02/40-Memo-and-Order-2-1-23.pdf].
About the Thomas More Society
The Thomas More Society is a national not-for-profit law firm dedicated to restoring respect in law for life, family, religious liberty, and election integrity. Headquartered in Chicago and with offices across the country, the Thomas More Society fosters support for these causes by providing high quality pro bono legal services from local trial courts all the way up to the United States Supreme Court. For more information, visit thomasmoresociety.org.