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From Guns to Church, Emergency Virus Measures Test Core Rights

May 7, 2020, 8:51 AM

State and local efforts to slow the spread of the coronavirus with stay-at-home and lockdown orders have spurred a libertarian backlash driving sometimes armed demonstrators to the streets and lawyers into courthouses across the U.S. to file civil rights lawsuits.

Aimed at freeing religious congregations and businesses from restrictions imposed in the name of protecting public health, the suits assert violations of the U.S. Constitution’s guarantees of freedom to publicly assemble, to worship, to bear arms, and not be stripped of one’s property interests without due process, rights their proponents assert must be preserved even if the countervailing risk is illness or death.

The U.S. Supreme Court, grappling with its own social distancing requirements, on Wednesday declined to lift Democratic Pennsylvania Gov. Tom Wolf’s March order to close all non-life-sustaining businesses. But, only days earlier, the U.S. Court of Appeals for the Sixth Circuit blocked Kentucky from barring drive-in church services and still more cases are pending including some with petitions already before the high court.

In fearful and uncertain times, people far too quickly overlook, and sometimes even welcome, dramatic government edicts in the name of safety, said University of Oklahoma law professor Stephen Henderson. “So, it is inconceivable that we will escape this pandemic without further strains upon our fundamental rights,” he said.

At the same time, the longer the pandemic goes on and the more it afflicts some areas of the nation and not others, the more likely citizens and courts may be willing to second guess government actions, said Mark Miller, a senior attorney with libertarian nonprofit law firm Pacific Legal Foundation.

Courts are also going to be looking for situations where governments are treating similar activities differently, Miller said, pointing to states that allow drive thru bars and restaurants, but not stay-in-your-car religious services such as Kentucky.

In those situations, the emergency action is going to be harder to defend, he said.

Response to Crisis

Momentous government response to deep crisis is not new, and neither are related constitutional challenges, bringing into sharp focus the Constitution’s first 10 amendments, the Bill of Rights.

There was the Civil War-era suspension of habeas corpus, Japanese-American internment camps were established after Pearl Harbor, and Washington broadened electronic surveillance following 9/11. All of those measures sparked challenges considered at the Supreme Court.

For the contagion crisis that health experts say is not near over, the main issue isn’t federal action. It’s how far state and municipal restrictions have gone to combat the virus spread, and how aggressively businesses fighting for their survival amid a devastated economy, civil libertarians, pressure groups, and everyday Americans will push back.

In North Carolina, citizens sued over a decision by local officials to cut off the Outer Banks to non-resident visitors and property owners in violation of Fifth Amendment rights.

In Wisconsin, a due process complaint brought by a group of strip clubs contests their exclusion from economic stimulus relief flowing from Washington. Similar suits have been filed in other states. Still more First Amendment suits take issue with government restrictions on public gatherings, citing those infringements on assembly and religious freedom.

Due Process

Other litigation getting particular attention now centers on gun rights and abortion access.

In the landmark 1973 Roe v. Wade decision, the Supreme Court found that the Constitution’s Due Process clause included a right to privacy that encompassed a right to abortion. A 1992 high court ruling barred governments from unduly burdening that right.

Still, several current cases relate to states’ efforts to use Covid-19 restrictions on medical procedures to curb abortion access. Officials in Alaska, Alabama, Arkansas, Indiana, Iowa, Louisiana, Mississippi, Ohio, Oklahoma, Tennessee, Texas, and West Virginia have “attempted to ban abortion, using the Covid-19 pandemic as a smokescreen,” said Amanda Thayer of NARAL Pro-Choice America.

Abortion providers are urging courts to curb those restrictions because the reality is “that abortion care is time-sensitive, essential healthcare for women and pregnant people that cannot be delayed,” the NARAL spokeswoman said.

But it’s precisely because abortion requires healthcare workers and protective equipment that it must be restricted, said Steven Aden of Americans United for Life.

State officials postponing nonessential surgeries and procedures, including abortions, justify the measure as intended to preserve much-needed personal protective equipment.

So far the results in courts have been “mixed,” Aden said.

Four federal cases claiming Bill of Rights abridgments
Bloomberg Law Graphics

A federal appeals court mostly prohibited Alabama officials from enforcing that state’s broad ban on “all dental, medical, or surgical procedures” except in emergencies. The court order didn’t block the state entirely, but granted abortion doctors broad discretion to determine when it was appropriate.

In Texas, officials were allowed by a federal court to enforce the state’s ban, even in the case of medical abortions, when pills are taken to terminate pregnancy. And in Arkansas, a federal appellate court said the state’s abortion prohibition passed the test for determining when a state can impinge constitutional rights during a public emergency.

A new challenge to the Arkansas law is pending.

Emergency “orders that bear on protecting the health and safety will be upheld” when there’s a compelling governmental interest that’s validated “by the facts of the emergency and the extent and nature of the order,” said Charles Thompson of the International Municipal Lawyers Association.

Second Amendment

On the other end of the culture war spectrum, gun sales have skyrocketed during the pandemic.

While the federal government deems firearms dealers essential businesses that should be exempt from pandemic lockdowns, sellers in a number of cities and towns have been forced by state and local officials to close due to social-distancing restrictions.

The National Rifle Association is among the parties challenging the closing of gun stores from California to New York during the crisis. Not only do these restrictions violate the Second Amendment, but they’re so vague they create ambiguity for citizens trying to comply with that rapidly changing law, the NRA and others said in their suit challenging a California order.

There, Gov. Gavin Newsom left it up to individual counties to determine whether gun shops were essential. That meant that, for a time, residents of San Diego had access to gun shops while two hours up the road in Los Angeles, county residents didn’t.

The term “essential” is so elastic that it can basically mean anything, Miller said.

“If local sheriffs cannot agree” on what businesses are essential, the California plaintiffs say in their complaint, “then it is neither reasonable nor feasible for law-abiding Plaintiffs to understand and abide by such Orders.”

But Duke’s Joseph Blocher didn’t think such challenges would be effective.

“The Second Amendment doesn’t guarantee an exemption from neutral, generally applicable laws like a broad closure of retail establishments, any more than the First Amendment guarantees as much for bookstores or churches,” Blocher said.

Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board. Everytown for Gun Safety advocates for universal background checks and other gun control measures.

Religious Freedom

Many states have put into place limits on mass gatherings, including religious services, triggering suits on religious freedom protections of the First Amendment.

In the Kentucky case, the state’s Republican attorney general and its Democratic governor sparred over the governor’s restrictions on large gatherings, including religious ones.

Most courts to have considered challenges to those restrictions haven’t required exemptions for religious groups, said Rachel Laser of American United for the Separation of Church and State.

These are temporary restrictions meant to protect us all, Laser said. Seeking to assert your religious rights at the risk of the health and safety of the community isn’t religious freedom, “it’s religious privilege,” she added.

But with these orders in place and as Easter approached in early April, churches began planning drive-in services, hosted in church parking lots where worshipers stay in their cars.

Even though drive-thru services were allowed in other situations, like restaurants, one Kentucky mayor refused to allow them for churches. The Sixth Circuit said that was unconstitutional discrimination.

Gov. Andy Beshear’s social-distancing orders violated the state’s version of the Religious Freedom Restoration Act, the unanimous three-judge panel said. Rules blocking drive-in church gatherings “substantially burden the congregants’ sincerely held religious practices” at the plaintiff Maryville Baptist Church, it said.

It just doesn’t make any sense to allow drive thru services in one situation but not others, said David Cortman of the religious nonprofit firm Alliance Defending Freedom.

Of course states should be able to deal with the emergency situation, but they aren’t allowed to treat religious groups as “second class citizens,” Cortman said. Governments need to find a balance between protecting health without tearing up the Bill of Rights, he added.

‘Very Deferential’

Still, the Supreme Court and other federal courts have long upheld emergency actions that “curtail a number of freedoms that many of us enjoy,” said the International Municipal Lawyers Association’s Thompson.

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” the high court said as far back as 1905 while upholding a Massachusetts’s law requiring the smallpox vaccine.

State “and local governments have—and will be accorded—substantial power in preventing the spread of a communicable disease,” said UC Berkeley School of Law Dean Erwin Chemerinsky.

And overall courts are likely to “be very deferential to the government and allow regulations, though they limit freedoms, so long as they are reasonable,” Chemerinsky said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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