Like it or not, the temporary restrictions on our freedoms are constitutional

There’s lots of discussion on the legality of stay-at-home and crowd-size limit orders, specifically, whether they violate the Constitution. The most applicable amendments are the 1st, 5th, and 14th, under the rights to assemble, of religion, and due process. Following is a very brief analysis based on case law. I will skip a summary of the facts leading up to these restrictions on our freedoms and go right to the legal analysis.

First, an argument can be made that since these restrictions aren’t directed toward a particular group or viewpoint the Constitution isn’t an issue at all. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court considered whether a law banning the possession of peyote improperly infringed on Native American’s religious practices. “Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion ‘would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.’ Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.” See Oyez summary of holding, Here, while the stay-at-home orders and bans on groups of 10 or more have a huge impact on churches and religious organizations, they are generally applicable to everyone regardless of specific viewpoints or beliefs. It’s notable that Scalia cited as examples “compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws” since such laws and regulations are infringements on personal liberty. Just as the laws banning peyote are applicable to everyone including those who use the drug to practice their religion, so too are citizens bound by stay-at-home and crowd size orders due to the covid-19 pandemic and the need to limit person-to-person transmission of the disease, and not hostility toward any one group’s viewpoint.

More applicable are various government efforts to regulate behavior to protect the public at large or one specific class subject to discrimination. In ROBERTS, ACTING COMMISSIONER, MINNESOTA DEPARTMENT OF HUMAN RIGHTS, ET AL. v. UNITED STATES JAYCEES, 468 U.S. 609 (1984), the court considered a state law that prohibited discrimination based on sex that was applied to require a private men’s organization to admit women. The Jaycees barred women from its membership. They clearly had the First Amendment freedom to associate with whomever they chose, but Minnesota banned sex discrimination, and these goals conflicted with each other. The Court held that compelling the Jaycees to admit women didn’t infringe on their freedom to associate with each other. More important, it applied the strictest scrutiny to Minnesota’s anti-discrimination law finding that “Minnesota’s compelling interest in eradicating discrimination against women justified enforcement of the state anti-discrimination law.” Also, “that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint.” See Oyez summary of holding, The latter aspect of the holding were the seeds of the Smith decision previously discussed. Even with this strict scrutiny standard of review, given the compelling governmental interest of saving lives, and the fact that the measures we are dealing with merely serve to limit contact with those who might be infected but aren’t yet tested or quarantined, it’s likely that these restrictions would survive a challenge.

As I write this, India, with a population of 1.3 billion people, went on a lock down to contain the spread of covid-19. Add to this the fact that most of Europe is on lock down, and it’s difficult to argue that our very minor restrictions thus far aren’t justified.

We are dealing with what some have called an existential threat to life, a literal pandemic that absent extreme mitigation measures will kill a million or more Americans. You may disagree with this assessment, but there’s general consensus in the medical community in America and abroad that covid-19 is more deadly and dangerous than any pandemic in our lifetimes. Thus, it’s likely that any reviewing court will apply the more appropriate intermediate scrutiny standard. Under this standard, all the government must show is that the measures are reasonably related to an important governmental interest. In O’LONE, ADMINISTRATOR, LEESBURG PRISON COMPLEX, ET AL. v. ESTATE OF SHABAZZ ET AL., 482 U.S. 342 (1987), the Court considered whether prison restrictions on inmate mobility that prevented Muslim prisoners from attending their faith’s mandatory worship ceremonies violated the freedoms of assembly/association and religion. “Jumu’ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. (Citation ommitted.) There is no question that respondents’ sincerely held religious beliefs compelled attendance at Jumu’ah.” Ibid. at 345. Restrictions on prisoner mobility were necessitated by security issues that arose from allowing prisoners to enter and exit the prison before the end of their outside work assignments. These restrictions resulted in Muslim prisoners not being able to attend Jumu’ah. Ibid. at 347.

The Supreme Court applied the intermediate scrutiny standard finding that the policy had “a logical connection to legitimate governmental interests.” Shabazz, 482 U.S. at 350. See also TURNER ET AL. v. SAFLEY ET AL., 482 U.S. 78 (1987) (finding strict scrutiny doesn’t apply to penal regulation analysis); c.f. CITY OF CHICAGO v. MORALES et al., 527 U.S. 41 (1999) (gang restrictions not unconstitutional on their face but due to too much discretion and lack of notice, they violated 5th and 14th amendments’ due process requirements). The legitimate interest was prison security. Restricting movement from outside to inside the prison had a logical connection to this interest.

While some might argue that current restrictions are too strict and that our leaders should have imposed less onerous ones, the Shabazz Court did not require the plaintiff to identify an alternative means to satisfy the legitimate interests. Shabazz, 482 U.S. at 350. This requirement would require a strict scrutiny analysis (least restrictive means), and the instant emergency would likely not compel the court to require such analysis.

In summation, you may not like the restrictions that are imposed on our freedoms, but the worldwide pandemic that led to them will likely result in a court finding them constitutional under existing law. This doesn’t mean that I agree that existing law is an accurate interpretation of the First Amendment, just that the U.S. Supreme Court is likely to apply these cases to any challenge of the orders.


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