Omar Bennett
The COVID-19 pandemic has brought about unprecedented challenges, with state and local leaders facing a barrage of lawsuits challenging the constitutionality of stay-at-home orders. Citizens and businesses claim that their constitutional rights have been violated, including the First Amendment right to practice religion and gather peaceably, the Fifth Amendment right to free movement, and the Fourteenth Amendment right to equal protection. The question of whether stay-at-home orders are constitutional is complex, with arguments being made on both sides. Some argue that these orders violate their economic and personal freedoms, while others assert that the government has the authority to take such actions during a public health crisis. The courts will ultimately decide the constitutionality of these orders, and their decisions will have a significant impact on how similar situations are handled in the future.
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What You'll Learn
The right to protest and assemble
The right to assemble and protest is a fundamental aspect of the US Constitution and is protected by the First Amendment. This right is not limited to US citizens, but also extends to international visitors who are participating in lawful demonstrations. The First Amendment safeguards the freedom to assemble and express views through protest, ensuring that citizens' voices are heard and contributing to a democratic discourse.
However, this right is not without limitations. While the government may impose certain regulations, they must not do so to suppress specific viewpoints. These restrictions are known as "time, place, and manner" restrictions, which allow public universities and government entities to regulate assemblies and protests while respecting First Amendment rights. For instance, in Clark v. Community for Creative Non-Violence (1982), the Court upheld restrictions on camping in public spaces during protests, ruling that these regulations were content-neutral and served legitimate government interests. Similarly, in Cox v. New Hampshire (1941), the Court upheld the government's authority to regulate public street use for parades through reasonable permit requirements.
It is important to note that police and government officials are permitted to place certain narrow restrictions on the exercise of speech rights. For instance, law enforcement can break up a gathering if there is a clear and present danger of riot, disorder, or interference with traffic. Additionally, individuals must comply with rules set by private property owners regarding speech and assembly on their premises.
Despite these limitations, the right to assemble and protest remains a crucial tool for citizens to express their grievances and shape the nation's journey toward more inclusive and responsive governance. As seen during the Trump administration, protests played a significant role in resisting executive overreach and defending constitutional values.
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First Amendment rights to practice religion
The First Amendment to the U.S. Constitution protects the right of every person to practice religion in accordance with their conscience and guards against the creation of a sectarian state. The first 16 words of the Amendment state that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".
The precise meaning of these words has been a matter of dispute, with some arguing that there is one religion clause, while others claim there are two. The modern U.S. Supreme Court has generally interpreted each half of the religion clause independently, holding that the two parts are in "tension" with each other. The Free Exercise Clause gives special protection to religion, while the Establishment Clause prohibits government action that benefits religion.
The Establishment Clause prohibits the government from "establishing" a religion. Historically, this meant prohibiting state-sponsored churches, such as the Church of England. Today, the definition of "establishment of religion" is often governed by the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman (1971). Under this test, the government can assist religion only if:
- The primary purpose of the assistance is secular;
- The assistance must neither promote nor inhibit religion;
- There is no excessive entanglement between church and state.
The Free Exercise Clause protects citizens' right to practice their religion as they wish, provided it does not conflict with "public morals" or a "compelling" governmental interest. For example, citizens cannot use religion as a justification to violate laws that protect public health and safety.
During the COVID-19 pandemic, citizens in various states, including Idaho and Washington, protested stay-at-home orders, arguing that they violated their constitutional rights, including their First Amendment right to practice their religion. While some officials, such as Idaho Attorney General Lawrence Wasden, defended the orders as constitutional, others, such as Idaho Representative Heather Scott, opposed them, urging citizens to protest and claiming that all businesses were essential.
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Fifth Amendment rights to free movement
The Fifth Amendment to the United States Constitution guarantees the right to free movement, which is considered a fundamental aspect of liberty. This right to travel is deeply rooted in the nation's heritage and values, and it is protected by the Due Process Clause of the Fifth Amendment. The Supreme Court has affirmed the right to travel as a fundamental constitutional right in numerous cases, including Crandall v. Nevada (1868), where the Court declared that a state cannot impede individuals from departing by imposing taxes.
However, the COVID-19 pandemic presented a unique challenge to this right, as governments grappled with implementing public health measures to curb the spread of the virus. Stay-at-home orders were issued in various states, including Washington, Idaho, and Minnesota, sparking protests from citizens who viewed these directives as infringements on their constitutional rights. They argued that their freedom of movement was being unjustly restricted, and some even likened the orders to "tyranny."
The constitutionality of these stay-at-home orders became a subject of intense debate. While some officials asserted that the orders were within the governor's authority and necessary for public health, others vehemently disagreed. In Minnesota, for instance, businesses challenged the governor's failure to provide just compensation for what they perceived as a "seizure" under the Takings Clause of the Fifth Amendment. Similarly, in Schulmerich Bells, LLC v. [name not available], the plaintiffs argued that they shouldn't bear the full economic burden of the governor's order favoring "essential" businesses.
The right to free movement, though fundamental, is not absolute. The Supreme Court has acknowledged the need to balance individual rights with the interests of the state. In certain circumstances, such as protecting national security or maintaining public safety, the government may impose reasonable restrictions on travel. For example, in Hendrick v. Maryland (1915), the Supreme Court upheld Maryland's motor vehicle statute, finding that states have the authority to establish uniform regulations for public safety, even if it impinges on the right to travel.
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Fourteenth Amendment rights to liberty
The Fourteenth Amendment (Amendment XIV) to the United States Constitution, passed on July 9, 1868, guarantees several rights, including due process and equal protection under the law. It was adopted as one of the Reconstruction Amendments following the American Civil War to address issues affecting freed slaves, and its passage was bitterly contested.
The first section of the Fourteenth Amendment includes the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause defines citizenship, superseding the Supreme Court's decision in Dred Scott v. Sandford (1857), which held that Americans descended from African slaves could not become citizens. The Privileges or Immunities Clause prevents states from interfering with federal rights, such as the freedom of movement.
The Due Process Clause of the Fourteenth Amendment explicitly applies the protections of the Fifth Amendment to state governments, prohibiting them from depriving individuals of "life, liberty, or property" without due process. This includes both procedural due process, which deals with the procedures for restraining life, liberty, or property, and substantive due process, which relates to the government's justification for engaging in those processes. In other words, it ensures that individuals are provided with fair procedures and that any deprivation of rights is justified and narrowly tailored to serve a compelling state interest.
The Equal Protection Clause of the Fourteenth Amendment guarantees that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This clause ensures that all citizens are treated equally under the law and has been the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954), which prohibited racial segregation in public schools, and Loving v. Virginia (1967), which ended interracial marriage bans.
During the COVID-19 pandemic, citizens in various states, including Idaho and Minnesota, protested stay-at-home orders, claiming they violated their constitutional rights. While some officials supported the protests, arguing that the orders infringed on individual liberties, other legal experts noted that governors have the authority to issue such orders during public health emergencies. The protests raised questions about the balance between public health and safety and individual freedoms, including those protected by the Fourteenth Amendment.
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The right to just compensation
The COVID-19 pandemic saw several countries impose stay-at-home orders, which were not received well by citizens. Many people protested these orders, claiming that they violated their constitutional rights.
In the United States, the governor of Washington state, Jay Inslee, issued a "Stay Home — Stay Healthy" order on March 23, 2020, which banned public gatherings and required nonessential businesses to remain closed. This sparked protests from citizens who believed their constitutional rights were being violated. Similar protests occurred in Idaho, where hundreds defied the state's stay-at-home order, with one protest organized by the IFF, Health Freedom Idaho (HFI), and the Idaho Second Amendment Alliance, claiming that the governor's "Emergency Declarations" were unconstitutional.
In Illinois, a similar issue arose when Woodford County State's Attorney Gregory Minger announced that he would not enforce the governor's Stay at Home Order, as he believed it exceeded the governor's constitutional authority beyond a 30-day period and resulted in the "improper taking of property interests and pecuniary interests without just compensation." Additionally, The Beloved Church in Stephenson County sued Governor Pritzker and other officials, alleging that the order prohibiting public worship services in Illinois churches violated their First Amendment right to exercise religion. Clay County Judge Michael McHaney issued a temporary restraining order, finding that the plaintiff, Bailey, had demonstrated a liberty interest in need of protection and imminent "irreparable harm" if subject to the restrictions.
The stay-at-home orders during the COVID-19 pandemic have highlighted the complex interplay between public health measures and constitutional rights, particularly the right to just compensation. While governments have a duty to protect public health, individuals and businesses have challenged the orders, arguing that their economic interests and constitutional rights should be protected and compensated.
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Frequently asked questions
This is a complex issue that has been challenged in the courts. While some states have ruled that stay-at-home orders are constitutional, others have found that they violate certain amendments. The outcome of these cases will depend on the specific circumstances and arguments presented to the court.
The main arguments against stay-at-home orders centre around the violation of constitutional rights, including the First Amendment right to practice religion and gather peacefully, the Fifth Amendment right to free movement, and the Fourteenth Amendment right to equal protection.
Yes, Wisconsin's Supreme Court struck down the state's stay-at-home order in May 2020, ruling that the governor overstepped his authority by extending the mandate without consulting legislators.
Stay-at-home orders have had a significant impact on businesses, with many having to close or limit their operations. Some businesses have challenged these orders, arguing that they have been deprived of "all economically beneficial uses" of their property and that the government has effectively taken their property without providing just compensation, which is a violation of the Fifth Amendment.
The federal government has intervened in some cases, such as in Ohio, Illinois, and California, to challenge state and local restrictions aimed at limiting the spread of the virus. The Justice Department has also submitted statements of interest in support of lawsuits against stay-at-home orders, arguing that state authorities have exceeded their constitutional powers.
