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Last week, “Attorney General William Barr… ordered federal prosecutors across the U.S. to identify coronavirus-related restrictions from state and local governments ‘that could be violating the constitutional rights and civil liberties of individual citizens.’” AP News
On Sunday, “The Justice Department… filed a statement of interest siding with a Virginia church suing the state’s governor over restrictions because of the coronavirus.” AP News
The left supports temporary restrictions, arguing that they are constitutional and necessary to halt the spread of the virus.
“In the past, emergencies have often called for states to impose short-term economic restrictions, and the Supreme Court has affirmed their constitutionality, emphasizing that temporary steps that might otherwise infringe on economic rights may be permissible… [The] cases, put together, should reassure state and local officials that they can protect the public health today and engage in the difficult process of social and economic reconstruction that we’ll need after the pandemic.”
Bernadette Meyler, New York Times
“Polls show that 70 percent to 90 percent of the public support measures to slow the spread of the virus… Indeed, it is wealthy and powerful conservatives and their allies, including President Trump and Fox News, who are driving the relatively small protests…
“‘The Constitution is not suspended in times of crisis,’ Mr. Barr said in an April 27 memo. Yet the same Mr. Barr, early in the outbreak, was seemingly so concerned about its impact that he proposed letting the government pause court proceedings and detain people indefinitely without trial during emergencies — effectively suspending the core constitutional right of habeas corpus… It would be one thing if the calls to ‘reopen’ America from President Trump and his allies were part of a coordinated pandemic response strategy by a federal government that had taken strong and science-based measures from the start. But the White House failed to do that at virtually every turn, which makes the current protests ring hollow.”
Editorial Board, New York Times
“As a matter of doctrinal constitutional law, Barr is absolutely right. Severe restrictions on individual liberties need to be justified by a compelling government interest — like fighting a pandemic. They must also be targeted (‘narrowly tailored,’ in constitutional-law speak) to achieving that compelling goal. But here is where things get a little weird: stay-at-home orders are narrowly tailored to avoiding the spread of the disease. Barr couldn’t plausibly claim otherwise…
“The Barr memo is meant to ramp up the pressure on states to reopen, and fits with Trump’s apparent electoral strategy of pressing for faster reopenings. It’s part of the Justice Department’s job to look out for citizens’ civil rights and civil liberties. It would be a bad idea to turn that high responsibility into a political tool to help the president’s reelection campaign. Especially when lives are at stake.”
Noah Feldman, Bloomberg
“People have been arrested for hanging out on Brooklyn street corners in too large numbers. People have been fined for gathering in large groups on Los Angeles beaches… It’s not discrimination when the same health and safety rules are applied equally to all. When states enforce rules against such gatherings, they are not singling out ‘religious observance.’ They are including religious observance on a list defined by the most neutral of possible terms: risk of infection…
“It’s especially not discrimination to apply universal health and safety rules to religious assemblies when there is ample evidence that religious assemblies—much more than beaches or parks—have proved capable of spreading the virus. An outbreak in Georgia traces to a church funeral in Dougherty County, one in Louisiana to a megachurch that ignored social distancing.”
David Frum, The Atlantic
“The constitutional guarantee of civil liberties is not absolute, and its abridgment is not necessarily an act of tyranny. Dangerous speech — falsely shouting ‘fire’ in a theater and causing panic, in Justice Oliver Wendell Holmes Jr.’s pointed example — is no more protected than dangerous assembly…
“In this pandemic, the reach of an individual’s freedom to be foolish ends an inch away, where the next individual is entitled to protection against the peril posed by the fool’s heedlessness. Hence the closure of concert halls, sports arenas, restaurants and gyms. For now, the same rationale justifies and requires closing the doors to churches, synagogues, mosques and other traditional venues of worship.”
Editorial Board, Washington Post
The right is critical of restrictions on religious observances, arguing that they are unconstitutional and unnecessary to halt the spread of the virus.
The right is critical of restrictions on religious observances, arguing that they are unconstitutional and unnecessary to halt the spread of the virus.
Rep. Ted Budd (R-NC) writes, “A few weeks ago, local officials in Greenville, Miss., singled out Temple Baptist Church for hosting drive-in religious services despite the state declaring churches as essential. It didn’t matter that churchgoers had their windows rolled up while listening to the sermon broadcast over the FM radio. Police officers began knocking on car windows demanding identification and issuing $500 citations. Cases of overreach like this have led Attorney General William Barr to release a memo ordering federal prosecutors across the country to take legal action against state and local directives that infringe upon individual liberties…
“This is not to say that we should threaten states and local governments' ability to enact the policies they see fit during this pandemic. As long as actions taken do not infringe on the civil liberties of American citizens, those governments should be free to govern how they wish. However, history has repeatedly shown us that during times of fear, it’s common to see individuals in positions of power cross inappropriate and unconstitutional lines. It is our job to conduct the appropriate oversight and ensure that responses to this pandemic are measured and based on both medical expertise and the law.”
Ted Budd, Fox News
The Virginia church claims “unequal treatment, and it submits photographs to make the point. One of them is a recent picture of Mr. Northam at a coronavirus press briefing. At least 21 people are visible in the room. Businesses deemed essential, meanwhile, attract hundreds. The church shows a photo of a Walmart parking lot, where its lawyers counted 268 cars. Virginia’s state-run liquor stores are open and reportedly had their best March on record…
“When pressed last month about whether New Jersey’s lockdown comported with the U.S. Constitution, Governor Phil Murphy said the question was above his pay grade: ‘I wasn’t thinking of the Bill of Rights when we did this.’ We’re grateful Mr. Barr is.”
Editorial Board, Wall Street Journal
When the federal district court “denied the church’s request for preliminary relief, it said that ‘[a]lthough [professional-services] businesses may not be essential, the exception crafted on their behalf is essential to prevent joblessness.’ But, as Eric Dreiband, head of the DOJ’s civil rights division points out, for many people of faith, exercising religion is essential, especially during a crisis. Dreiband contends that Virginia ‘has offered no good reason for refusing to trust congregants who promise to use care in worship in the same way it trusts accountants, lawyers, and other workers to do the same’…
“The executive orders prohibit the church from holding a sixteen-person, socially distanced gathering in a 225-seat church but allow similar secular conduct, such as a gathering of sixteen lawyers in a large law firm conference room. Therefore, the Justice Department argues, the governor’s executive orders may constitute a violation of the church’s constitutional rights to the free exercise of religion.”
Paul Mirengoff, Power Line Blog
Similarly, Kansas Governor Laura Kelly’s “executive orders exempted 26 types of secular activities and facilities, including bars and restaurants, libraries, shopping malls, retail stores, airports, hotels, childcare facilities, manufacturing processing and distribution facilities, and office buildings. People could gather there in unlimited numbers as long as they practiced social distancing. Yet Kelly expressly excluded religious institutions from any such accommodation…
"Churches, synagogues, and mosques were categorically barred from meeting inside their dwellings. If 50 people sit in a room to talk about real estate deals, no problem. But if someone brings up John the Baptist, call the cops!… Some state and local officials are keen to impose unnecessary and unconstitutional restrictions on congregations who wish to gather together in a safe and responsible manner. That’s as dystopian as it gets. The U.S. Justice Department should do everything it can to preserve our First Amendment rights.”
Hans von Spakovsky, Washington Examiner
A libertarian's take
“Judges in [earlier] periods, like judges today, recognized as uncontroversial a very sweeping state and municipal ‘police power’ to act against the spread of communicable disease. And judges back then were if anything even more deferential toward public health authorities’ decision-making than they are today…
“After the immediate threat to life has passed, both we and the courts must be vigilant that constitutional rights now bent spring back upright, and that governments promptly and fully relinquish whatever emergency powers they have flexed. But we also need to face the facts about this country’s actual constitutional law, which from the Revolution to the present day has been united in treating legitimate government power as at its zenith during a ‘hot’ emergency of deadly contagion.”
Walter Olson, Cato Institute
