- The Washington Times - Tuesday, March 31, 2020

A Florida pastor has been arrested for holding church services, a New Jersey man was ticketed after holding a house party, and Rhode Island’s governor ordered police to hunt down and fine New Yorkers who aren’t quarantining themselves.

If those government responses to the coronavirus strike you as out of bounds in the land of the free, you’ll have to grin and bear it, legal scholars say.

Government crackdown on citizens’ most basic freedoms usually pass constitutional muster during a time of crisis, said Ilya Shapiro, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies.

“There is a general police power that states have and courts are deferential to that kind of authority in an emergency,” he said. “A pandemic certainly qualifies.”

A New Hampshire judge already batted down a challenge to Gov. Chris Sununu’s order banning gatherings of 50 people or more. The legal action was brought by a group of residents who said the order prohibited them from attending religious gatherings and political meetings in violation of their constitutional rights.

In Pennsylvania, a group of business owners objected to Gov. Tom Wolf’s order closing all businesses that are not defined as essential. The case is pending at the Pennsylvania Supreme Court.

Most recently, the religious-liberty law firm Liberty Counsel took up the fight of a Florida pastor, Rodney Howard-Browne, who was arrested after holding church services Sunday in a county where events with more than 10 people have been banned.

Mat Staver, the founder and chairman of Liberty Counsel, said the county’s order has too many holes in it, permitting some activities so long as the six-feet social distancing is observed but banning all religious events even if the six-feet requirement is honored.

Mr. Howard-Browne says he honored the social distancing requirements and had hand sanitizer available for everyone entering the church.

“Neither the Constitution nor Florida law protecting churches and the free exercise of religion disappear. This order from Hillsborough County is not narrowly tailored to achieve its underlying objective,” Mr. Staver said.

State officials generally have laws on the books giving them police powers in times of emergency to protect the well-being of society.

“States and cities can expect courts to be highly deferential on pandemic measures. Under the Constitution, the primary authority over public health and police powers rests with the states,” said Jonathan Turley, a law professor at the George Washington University.

To successfully challenge the mandates, individuals would need to show the state officials are allowing yoga classes, for example, but not church gatherings.

The onus falls on the citizen to show there is no basis for what the governors are doing or that the restrictions are arbitrarily applied, the scholars said.

Josh Blackman, a professor at South Texas College of Law, said the leading Supreme Court precedent upholding state action is a ruling permitting states to require smallpox vaccinations.

He noted several state court rulings also upheld quarantines and limiting an individual’s mobility.

Mr. Blackman said it would not be problematic for President Trump to issue such a quarantine around New York, New Jersey and parts of Connecticut, which the president had suggested over the weekend to keep the virus from spreading to other states as people travel south.

“The federal government would have the powers to enforce that domestic travel ban. In theory, the courts should be deferential to that quarantine measure,” he said.

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