Legal Alerts Apr 29, 2020

COVID-19 Safety Orders v. the First Amendment

A California Federal Court Weighs-In on Religious Group’s Challenge

COVID-19 Safety Orders v. the First Amendment

A federal court in California refused to stop enforcement of state and county COVID-19 health orders that barred large gatherings, including religious gatherings. The plaintiffs asserted that the orders violated their First Amendment rights. The case provides a thorough summary of the delicate balance between the state’s emergency powers and individual rights.
In Gish, et al. v. Newsom, et al., the U.S. District Court for the Central District of California, Eastern Division, on April 23, upheld provisions of orders by Gov. Gavin Newsom and the Riverside and San Bernardino health officers that require “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The orders also prohibit “[a]ll public or private gatherings... including, but not limited to an auditorium, ... church, ... or any other indoor or outdoor space used for any non-essential purpose including, but not limited to... church...” The orders exempt certain “critical activities” where people could otherwise assemble, such as grocery shopping.
The plaintiffs, a group of religious leaders and congregation members, alleged that the orders were an unconstitutional impairment of their religious freedom because they exempted certain gatherings outside churches and because the plaintiffs could assemble with less impairment by using the U.S. Centers for Disease Control and Prevention’s social distancing guidelines.  
The court found that the orders “easily” passed the extremely deferential review afforded governmental responses to public health crises. The court also held that the orders would withstand even traditional constitutional review outside a state of emergency.
As to the emergency orders, the court cited long-standing Supreme Court precedent that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The 1905 U.S. Supreme Court decision in Jacobson v. Commonwealth of Massachusetts went on to say: “The Constitution does not guarantee ‘an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint..’ Indeed, ‘[t]he right to practice religion freely does not include liberty to expose the community... to communicable disease.’”  
To survive a constitutional challenge, the court held, the government must show only that the control measures have a “real or substantial relation” to the crisis and are not “plain, palpable” invasions of clearly protected rights. The court cited California death rates and CDC guidelines for social distancing as the basis for the restrictions and found that they were sufficiently related to controlling the disease. They were not “plain, palpable” violations of religious liberty because, even though they eliminated religious gatherings, they left intact other elements of religious observance, including virtual and telephone gatherings.  
For good measure, the court evaluated the orders under traditional constitutional scrutiny finding that they were facially neutral because they banned both religious and secular gatherings. They eliminated more secular gatherings than religious ones (e.g., schools, theaters, stadiums) and allowed people to congregate in pharmacies and grocery stores, but only long enough to buy essential food or medicine. Having found the orders facially neutral, the court held that the rules need only be rationally related to limiting coronavirus spread, which the court found they clearly were. In its discussion, the court pointed to historical analogous applications of this deferential approach to other Constitutional impairments during civic emergencies, including restrictions on political rallies and property rights.
On April 18, a federal judge in the District of Kansas reached a contrary conclusion in First Baptist Church, et al. v. Kelly, et al., applying heightened scrutiny to temporarily enjoin a state health order because it  barred religious gatherings, while allowing large gatherings at other locations, such as airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments, retail food establishments, public transportation, job centers, office spaces used for essential functions (e.g., real estate offices), and manufacturing, processing, distribution and production facilities.   
The Gish decision’s analysis of how courts traditionally balance the state’s emergency powers against the rights of individuals shows that the balance strikes heavily in the state’s favor for “ temporary executive actions taken in response to a national emergency.” However, as emergencies age, the government may need to take additional steps to:

  1. re-substantiate the emergency,
  2.  review the "fit" between the emergency and the strategies to address it and
  3. evaluate different means to the same ends to identify the least constitutionally disruptive strategies.

As agencies consider loosening restrictions as the peril passes, allocation of resources and liberty that discriminate against citizens based on age or infirmity or are unduly invasive of privacy will face similar tests.  
On Monday, U.S. Attorney William Barr ordered all federal prosecutors to monitor coronavirus-related restrictions from state and local governments “that could be violating the constitutional rights and civil liberties of individual citizens.”

If you have any questions about this decision or how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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