Freedom of Religion

Lawsuit Challenging N.H. Order Banning Gatherings of 50 or More People

|The Volokh Conspiracy |

You can see the governor's order, the motion for a temporary restraining order, and the governor's objection to the motion. The judge denied the TRO Wednesday, but scheduled a hearing for today.

I think the governor's order doesn't violate the U.S. Constitution (I can't speak to any specifically New Hampshire law questions), and will likely be upheld.

UPDATE: The N.H. Union-Leader (David Lane) reports that the judge ruled against the plaintiffs (thanks to commenter Dr. Ed for the pointer):

"The bottom line here is that the court finds there is overwhelming factual and legal support in the governor's action in declaring a state of emergency," Kissinger said from the bench after the hearing in Merrimack County Superior Court.

Kissinger said he would issue a written opinion within the next week.

"It is clear from the factual conclusions … that this is an extraordinary public health crisis and the danger to the citizens of New Hampshire, the country and the world is real and it is imminent," Kissinger said.

"The court cannot imagine a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic."

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  1. I really hope some sort of near instantaneous maybe PCR based testing technology comes around soon.

    Then there will no longer any be any need for these emergency medical loopholes anymore. I fear these little state and municipal dictators across the country are getting a bit drunk on the power over us they’re flexing right now and their egos need to be deflated a bit. Its really depressing how overboard some of these restrictions have become and you’re not even allowed to walk outside alone.

    1. I’m actually surprised that Chris Sununu did this — although it’s more reasonable that Charlie Baker’s (RINO-MA) edict of 10 persons.

      I fear that the egos of the tinpot dictators likely will be deflated by force, this is going to get ugly if it goes another week.

  2. This complaint sounds great! Three disaffected clingers represented by a lawyer who appears to be a guy with an extortion conviction and Republican political aspirations.

    1. Did you happen to notice the NH Governor’s name?

      Yes, Chris Sununu. Son of John Sununu, Bush 41’s Chief of Staff.
      Chris Sununu is an outspoken supporter of Donald Trump.

      Facts do matter….

      1. Another interesting aspect of New Hampshire (which still has “Live Free or Die” on its license plates) is that almost every sign that says something is prohibited has the authorizing statute or authority cited on the bottom of it.

        I don’t know if that’s required or considered prudent, but that’s the way New Hampshire is….

        1. Someone should sue them to remove that from their license plates as a lie. They don’t get the choice to live free or die.

  3. The order may not violate the US constitution, but according to the courthousenews article you cite and the complaint itself, the plaintiff’s argument is that the conditions of “emergency” do not exist, and therefore the governor’s special powers aren’t activated. The argument is actually pretty solid. I agree they will lose, anyway.

  4. New Hampshire is a famously pro-business state, but the problem I have is the broad exemption for the “day to day operation of businesses” — I’d argue that 50 people assembled to manufacture Frialators has to be considered in a light similar to 50 people assembled to worship the Lord.

    Now the state could impose content-neutral regulations such as a mandate to remain 6 feet apart and not attend if sick, but (I argue) it would have to equally impose it on Pitco Frialators and the Bath Baptist Church. I argue that it is a Establishment Clause violation for them to impose it on the Bath Baptist Church without also imposing it on Pitco Frialators.

    Likewise, sit-down dining is the exact same (state) license be it a freestanding restaurant or a corporate cafeteria. The health hazards are identical, and when one realizes that Timberland Boots has 5,600 employees while the entire population of Bath, NH is only 1,077, the question of rationality comes to mind.

    Likewise, Standex, which makes food service equipment, engravings, engineering technologies, electronics and hydraulics, has 5,400 employees. Albany Felt has 4,400 and Anvil, which makes piping connectors, has 3,130.

    My point is that I don’t think this should pass First Amendment muster unless the order either (a) also shuts down all these big manufacturing places, or (b) establishes some objective criteria which Bath Baptist could also qualify under.

    1. One other thing — while their rhetoric is a bit extreme, they have a valid point regarding the “assistance” of police officers. As there is no legal grounds for arrest, the only thing police can do is either use force (including deadly force) or threaten to do so.

  5. During a panic, the courts disappear.

    No judge will risk the blame associated with overturning the order.

    1. Shay’s Rebellion happened….

  6. Illinois just landed, and as might have been expected, it’s hardcore.

    https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-10.pdf

    Looking at the statutory basis now.

    Mr. Dove

    1. We have elections in eight months, and I’m thinking that there will be a rebellion at the ballot box. It happened in Massachusetts to Michael Dukakis in 1978 after he shut down the roads for just 10 days, and this is far more extreme.

      Joe Sixpack may show up to vote…

  7. Just in — the court tossed the case, without answering the equal protection question I have (i.e. not shuttering businesses).
    See: https://www.unionleader.com/news/health/coronavirus/judge-upholds-governor-s-power-to-ban-large-gatherings/article_f0e8bac3-fd0c-572c-b9de-87e909dbb1ac.html

    1. Thanks, just posted an update.

      1. It will be interesting to see what the Bath Baptist Church decides to do — I’m reminded of what happened up in Lee, Maine in the 1980’s.

        Teenagers playing frisbee on the town common on Easter Sunday were actually on church property (in 1855 the church and state were separated, prior to that they were one and the same) and this wound up with the minister chasing them with a loaded shotgun and parishioners with running chain saws (this is logging territory) and it proceeded to get rather ugly.

        Like I said, this could get ugly — same thing with that church in California although I suspect the authorities are looking for an excuse to ignore it.

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