More on what governments can get away with in these COVID-19 times

More on what governments can get away with in these COVID-19 times

Some of my FB friends have asked me to write something about the spate of government orders about social distancing, closures of state parks and beaches, constitutional rights to congregate and associate in public, requiring masks when in stores, and mandatory testing (which I will deal with another time). A few of these issues are simple, but most are not.

Whatever else, this pandemic has certainly provided a real-time lesson on federalism, the essence of which is a shared/sometimes overlapping system of government where power over the people is divided between the states and the federal government. The other big lesson we are/will be learning is that constitutional rights are not absolute, and that the perceived public health rights of the many often prevail over an individual’s rights. This is both constitutional statement of fact by me and a general prediction on how courts are likely to view the some of the legal challenges that have been or will be filed. We are also receiving lessons on the interplay/possible conflicts between state and local/county governments.

Some easy stuff first


State governments have ordered people to wear masks when shopping, and/or stores have required masks as store policy. There is a much, but not universal scientific support for the proposition that if used properly, face protection can stop or lessen the spread of the disease. Challenging this in court seems foolish to me. States have the right to take this relatively benign preventive measure to protect the public. Even without a state or city order, I think businesses can set and enforce this requirement. Many stores and restaurants have some mandatory clothing requirements, like requiring shoes, shirts, no tank tops, or a sports jacket in some high-end places. I don’t see any court overturning an obligatory mask order, period. I recently saw on FB some loon wanting to organize a group protest in Costco (which requires masks as a company policy) to remove masks. Really?

Social Distancing in general

It seems widely accepted that social distancing is having a positive effect on the transmission of the disease. More densely populated areas experienced more disease than less densely populated places. Certain micro environments like meat packing facilities, which employ thousands of people who work in close proximity to each other, are creating hot spots in otherwise non-dense areas with low outbreak rates. To me this supports the logic and common sense of social distancing as a tool of prevention. People point to Sweden as an argument that social distancing is not necessary. However, as we are now learning, relative to other Scandinavian countries, Sweden is not doing so hot, with something like 8 times the death rate of their neighbors. In the face of relatively good and widespread data points that social distancing is working, I do not see a court overturning a general social distancing order in the near future.

Also, keep this in mind: Most courts are physically closed to the public and to their employees. Hearings and such are mostly being handled via telephone or videoconference. Chances are the judge hearing any preliminary injunction motion to reopen a store or reject a social distancing order will be sheltered in place at home and communicating with his staff and the parties by means other than in person. My gut tells me that most judges who are sheltering in place are more likely to bend over backwards to find in favor of the state measure. And as a general rule, as one of the leading vaccine concerned thought leaders once said, “Judges do not want to make a decision which they think could put people at risk.”

But can’t the social distancing orders go too far? And by the way, what about the recent Attorney General’s Memo to be vigilant for state and local government’s which issue orders in violation of the constitution?

Short Answer: yes, and the memo means less than meets the eye.

Longer answer:

Yes, social distancing orders can go too far legally, and if they can and have been struck down. A couple weeks, ago a Kansas district court issued a TRO against the governor’s order that churches cannot have services with more than 10 congregants. There was no similar limitation on stores, and that led the federal judge to tentatively conclude that the Governor’s order seemed to unconstitutionally discriminate against churches. If the Governor had ordered had that 10 person limit on all public gatherings like in stores, it would have survived. So, what I conclude from the TRO decision (and a temporary injunction decision is expected by May 2nd) is that places of worship can’t have different, or at least, more restrictive rules that other public venues.

Non discriminatory actions would have a harder time, like a challenge to Governor’s Newsom’s upcoming order closing state beaches. If there were to be such an argument, it would be that people have a constitutional right to move, associate and congregate at public places which triggers the “strict scrutiny” test, and that a complete ban on people using beaches is not the least restrictive measure to achieve the admittedly important public purpose of the order. A lesser restrictive option might be enforcing social distancing on beaches. They are trying that in Orange Country, but the recent widely publicized packed beach pictures suggest that social distancing is hard to enforce, on beaches anyway.

But beaches are relatively small, while many state parks are very big. In my mind, if there were to be a successful challenge, it would be on the grounds that the order is not the least restrictive means to achieve the public goal because it lumps together state parks where social distancing would likely be more effective with beaches where social distancing is harder because of their smaller areas.

What about AG Barr’s Memo telling his minions to be on the lookout for unconstitutional government restrictions?

Here it is:


I do not see it changing or challenging many current restrictions for a couple reasons, not the least of which is that many states are starting to open up according to a plan, or are talking about doing so. Besides, my sense is that most states are treating churches like other so called non-essential public places like stores and restaurants. Sure, religious people can argue that churches are essential, but so are courts, and they are working via telephone and skype right now, so I would think the courts would say that churches can do the same as them and not endanger the congregants with in person services.

What about protests? To social distance or not, that is the question

Some attack people who are protesting the shelter-in-place orders, especially those who are not wearing masks and not social distancing. My personal view is that peaceful protests is one of the most important rights we have, and I think governments should be extremely hesitant to interfere with that right. That being said, “time, place and manner” restrictions have been upheld by the courts and will continue to be upheld.

So far, governments have not banned protests, either by car or walking protests, but in California there are permit issues being interposed. I guess this where I draw the line. The banning of a protest against a shelter-in-place order should be challenged, but I don’t think it will come to that, as most governors seem to let them go forward. We will see what happens with the protest in Sacramento tomorrow. The challenge would likely take the form of arrests for protesting without a permit or in violation of the permit or order.

There is another reason why I think these protests should go forward and it is admittedly callous. We are all participating in a giant scientific experiment because the answers to some of the basic questions are not completely known, like the actual death rate from the disease. Citizens who are protesting in public without social distancing are on the front lines of this experiment. I think the whole country is looking to see if new clusters develop in areas or with people who are involved in these protests. The risks seem very low in places like Sacramento and Austin which have very low hospitalization numbers. For many, the risks are worth it. So, for sure, protest to show your displeasure with the shelter-in-place orders, but if you have kids, (like some of my friends who are leading these protests), do them a favor and wear some face protection and stay as safe as you can.

Rick Jaffe, Esq.

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