Two months ago [Constitution Minute - Feb. 23, 2020], I told you about the emergency powers states have to deal with pandemics. Subsequently, I went on the radio and said that, if Americans really feel governments have trampled on their rights, they should sue in court. Tonight, we’ll take a quick trip through some of the court cases where Americans fighting for their rights have done exactly that. Some have been successful and some have not.
But, first, a refresher. States have broad powers in emergencies to protect the health, safety, and general welfare of their inhabitants. However, those powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.
Several court challenges went down in flames in Pennsylvania. The state’s Supreme Court rejected eminent domain, due process, equal protection, and First Amendment free speech and rights of assembly challenges to business closures and other emergency measures. The court said the closures are an appropriate use of emergency powers and are only temporary. Businesses get a post-closure hearing to challenge designations as non-essential and that is enough for due process. Political campaigns have other ways to get the word out, even if their offices must stay closed during the pandemic.
Texas lost its bid to completely close abortion clinics as non-essential for the duration. A federal appeals court ruled the clinics must be allowed to stay open to dispense abortion pills and provide abortions to women who would otherwise be too far along for abortions when the state’s emergency order expires. Sounds like the court decided to cut this baby in half - literally.
Church-goers lost their challenge against the state’s order limiting the size of church gatherings on Easter Sunday to ten people in Kansas.
A number of other court cases have been filed or threatened, but I haven’t seen rulings yet. A Wisconsin teen sued a local sheriff for denying her free speech rights by threatening to arrest her for disorderly conduct for an Instagram post where she claimed she had beaten COVID-19. Her doctors told her it was likely she had the virus and she had tested negative because she missed the testing window.
Michigan residents filed suit against the stay-at-home order issued by Governor Gretchen Whitmer, whom Trump calls ‘that woman from Michigan’. The Governor was also sued for criminalizing the free speech activity of peaceful, pro-life protestors. A legal group called on the Governor to lift her ban on homeschooling. It looks like faulty drafting, but the executive order bans all in-person instruction of all children outside of public schools, which are closed. Parents have a fundamental constitutional right to raise and educate their children, the group said.
Citizens in Massachusetts are suing over that state’s designation of gun shops as non-essential. A gun rights group in Virginia sued over Governor Infanticide’s closing of indoor gun ranges as non-essential. A constitutional law professor at the University of Virginia doubts this challenge will succeed. “Closing gun ranges doesn’t violate anyone’s right to own a weapon,” he said. “It’s a reasonable regulation in the space of a major public health crisis.” VCDL, the gun rights group, counters that the gun ranges allow people to sharpen their skills, and observe appropriate social distancing because there are barriers between lanes.
Which brings us to Mike Huckabee, who sued in federal court in Florida against a county social distancing order that closed his private beach. He argues this is a taking of his property in violation of the 5th Amendment and points out there is less chance of transmitting coronavirus on a private beach than there is going to the grocery store. The measure, as applied to private beaches, doesn’t appear calculated to achieve a health objective, a legal standard I mentioned at the outset.
The sheriffs have been interesting to watch in all of this. Four sheriffs in Michigan said they would not strictly enforce the stay-at-home order. A sheriff refused to enforce orders fining COVID carriers who enter Maine from out of state. “This is not Nazi Germany or Soviet Russia where you are asked for your papers!,” he wrote. Sheriffs in Los Angeles and North Carolina allowed gun stores to reopen after being sued.
I’ll close with my favorite ruling, this one out of Kentucky where a federal judge ruled the mayor of Louisville could not ban Easter drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” the judge wrote. “That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion.” The mayor had argued that drive-in church services weren’t “practical or safe” for the community. However, the judge noted that drive-thru restaurants and liquor stores were still allowed to operate. Senator Rand Paul tweeted, “Thank God for a judge who understands the First Amendment prevents the government from prohibiting the free exercise [sic] of religion.”
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