Coronavirus Cases Pit Constitutional Rights Against Public Health Authority

The federal courts start to grapple with COVID-19 shutdown orders.


The First Amendment protects "the free exercise" of religion and "the right of the people peaceably to assemble." According to a federal judge in California, those constitutional rights do not trump the power of state and local officials to prohibit in-person religious services in the name of combating COVID-19.

On March 4, California Gov. Gavin Newsom (D) issued a statewide "stay at home" order as part of his administration's efforts to arrest the spread of the coronavirus. Local officials in San Joaquin County soon followed suit with an order of their own, which banned "all non-essential gatherings of any number of individuals." Both orders effectively prohibited churches from holding in-person religious services.

The San Joaquin-based Cross Culture Christian Center took the matter to the U.S. District Court for the Eastern District of California, asking Judge John Mendez to declare the orders unconstitutional as applied to its religious practices and to enjoin the government from enforcing them. According to the lawyers for the church and its pastor, Jonathan Duncan, if allowed to reopen, they planned to "follow CDC guidelines and San Joaquin County social distancing protocols in the use of their sanctuary for assemblies and their parking lot for drive-in services."

Judge Mendez ruled against the church this week. "The incidental—albeit uncomfortable—burden the State and County orders place on the exercise of religion simply do not engender the type of religious discrimination the Constitution aims to prevent," Mendez wrote in Cross Culture Christian Center v. Newsom. "The State and County orders are not unconstitutional. Rather they are permissible exercises of emergency police powers especially given the extraordinary public health emergency facing the State."

In Mendez's view, the courts should be extremely wary about second-guessing the wisdom of these sorts of public health orders. In fact, he maintained, the government should get to enjoy broad leeway to operate against the coronavirus. "During public health crises," Mendez maintained, "government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society's most vulnerable. Under these rare conditions, the judiciary must afford more deference to officials' informed efforts to advance public health—even when those measures encroach on otherwise protected conduct."

A different vision of the judicial role in the age of coronavirus was offered last month by Judge Justin Walker of the U.S. District Court for the Western District of Kentucky. In On Fire Christian Center v. Fischer, Walker enjoined Louisville Mayor Greg Fischer (D) from enforcing a ban on drive-in Easter services. Yes, the city may take various actions in order to stop the spread of infectious diseases, Walker acknowledged. But "it appears likely that Louisville's interest in preventing churchgoers from spreading COVID-19 would be achieved by allowing churchgoers to congregate in their cars as On Fire proposes." In other words, according to Walker, this particular prohibition amounted to an unjustifiable exercise of government power.

Walker also differed from Mendez and his call for judges to show "more deference" to government officials battling the disease. "The COVID-19 pandemic has upended every aspect of our lives," Walker wrote. Nevertheless, "constitutional rights still exist."

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  1. This hasn’t been about the virus for weeks. Now it’s about November, with a side of federal bailout for the states that cratered their tax bases.

    1. Maine’s Janet Mills reportedly has openly admitted that.

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    2. Except that’s nearly all the states, and they cratered the federal government’s tax base as well.

    3. There is no reason or excuse for any pandemic to trump the right to assemble for worship as one’s conscience dictates. I don’t find this ruling surprising considering CALIFORNIA IS THE LIBTARD CAPITAL OF AMERICA. THIS IS WHY DEMOCRAT SCUM MUST BE ROOTED OUT OF GOVERNMENT ALTOGETHER AND BE REPLACED WITH MEN AND WOMEN OF PRINCIPLE WHO REVERENCE GOD AND HIS WORD ABOVE ALL ELSE. PERIOD.

    4. Absolutely! Not only are the vast majority of our ignorant judges acting to promote their political agendas, these black-robed Mullahs are giddy from the endorphins rush of wielding their illegitimate powers so they are members of our police state too. Don’t look to them to honor their oaths to uphold the Constitution any more than you can look to the world’s most dangerous gang of thugs (the police) to do so. The Constitution is very rapidly burning to ashes and only We The People can possibly save it and resurrect our former republic.

  2. “Rather they are permissible exercises of emergency police powers especially given the extraordinary public health emergency facing the State.”

    Actually, there is no extraordinary public emergency, there is an amazing power grab by the fascists. All reliable (not Communist Chinese or socialist media) data indicates it is close to a bad year for the (regular) flu. And like the (regular) flu, there will NEVER be a fully effective vaccine, so saying we are waiting for one is bullshit.

  3. “The COVID-19 pandemic has upended every aspect of our lives,” Walker wrote. Nevertheless, “constitutional rights still exist.”

    That this even has to be said is a pretty good reminder of just how sad of a state things have gotten to.

    1. Yeah, while rapists get let out they’re arresting and beating the tar out of people for not ‘social distancing’.

  4. There’s nothing to balance between “constitutional rights” and government authority. You aren’t granted the rights mentioned in the Bill of Rights, these are rights specifically mentioned as inherent and inviolate human rights the government has no authority to infringe upon. Suggesting there’s something to balance confuses the rights of the master with the privileges of the servant and just which one of us is the servant and which the master.

  5. >>the type of religious discrimination the Constitution aims to prevent

    behead those chickens! but not in groups of more than one person.

  6. This is what a society run by technocrats is like. Welcome to hell.

    1. Incompetent technocrats, but yeah. Add vodka, and you get the Soviet Union.

      1. “Incompetent technocrats”

        That’s redundant.

        1. So says Hayek.

  7. “The State and County orders are not unconstitutional. Rather they are permissible exercises of emergency police powers especially given the extraordinary public health emergency facing the State.”

    This may in fact be correct, but only answers half the question before court. I see nothing in the judgement about where these emergency powers begin and end. There are limits to these powers and that is what should be the only question from the judge. The coronavirus falls somewhere between the common flu and the bubonic plague. One requires the government shutting everything down and the other does not. The courts need to be answering that question.

    1. How can it be correct?

      There is no public health emergency clause in the constitution.

      There is also no power granted the judiciary to concoct balancing tests under the terms of which the judiciary concocts governmental interests.


      1. Which constitution? The powers of the state governments are not defined by the US constitution. You would have to look to the individual state constitutions for this.

        1. First, the federal constitution. There is no public health emergency exception. Ditto for judges making up balancing tests.

          Second, state constitutions that contain provisions for temporarily giving governors power to act in an emergency do not trump the 14th amendment, nor Article IV’s protection of privileges and immunities.

          Third, state constitutions that empower governors to act in an “emergency” do not contain exhaustive recitations of each and every activity that can be proscribed.

          Fourth, the exercise of a natural right trumps any constitutional “emergency” power asserted by a petty tyrant.

        2. So if slavery is permitted in the Michigan constitution, there is no issue?

          1. Let’s be careful not to give Gretchen Whitmer any ideas.

    2. That’s a good question that I would like to hear an answer to. How much worse than the usual diseases that are always around does something need to be to justify this kind of response?

      OF course, I still think that’s the wrong question to ask, but it would be a start.

      1. The original SARS, though I don’t remember how communicable it was, might be enough for me, Zeb. An actual over 10 percent death rate, not limited to old farts, and if it were as communicable and insidious as Covid—or shoot, if we’re blue-skying, make it measles—and something like these blue state responses might be justified. Might.

        At some point, a pandemic is as nasty as these officials think. We’re just nowhere near that point with Covid.

        1. “The original SARS, though I don’t remember how communicable it was, might be enough for me, Zeb. An actual over 10 percent death rate,”

          True pandemics with high IFRs are exceedingly rare. The higher the fatality rate, the more likely it is that a local epidemic will burn itself out before it spreads further.

          In evolutionary terms, a high fatality rate is counter productive to a disease’s success.

      2. Now that we’ve found out this can be used to energize one side’s voting base, be prepared for the answer to that questions to be “most diseases.” And I doubt the courts will offer relief, we’re in for a bunch of new precedents that will be terrible, I think. Courts are almost assuredly going to conclude that stoping an outbreak is a “compelling interest” without establishing any restriction on how bad that outbreak has to be (which is a question they will be unqualified to answer) or providing any meaningful recourse if governors trigger such a condition unnecessarily (since they surely would never do such a thing for any reason other than a genuine mistake, right?). “Once-in-a-century” outbreaks will probably start happening once every 8 to 10 years if people don’t reign the powers that be in at the ballot box.

  8. It is not correct. The right to gather and the right to worship are 1. Inherent natural rights. 2. Enumerated in the Constitution.

    Funny no one wants to abridge the right to abortions. Those made up rights are inviolate.

    This is the definition of tyranny. If government can suspend rights for any declared emergency, when do our rights apply?

  9. “ThIs iS uNcOnStitUtOnAL tyRaNnY!!!11”

    It wasn’t when challenges to Spanish Flu failed miserably in one hundred years ago, and it’s still not. As of this morning, noted left-wing tyrants Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh allowed the Pennsylvania stay at home order to stand without even taking up the case. It’s that open and shut: states have quarantine power.

    I honestly don’t know why libertarians/conservatives expect different. Trump and the judges he’s appointed have expansive and imperialist views of executive power, including the conservative Supreme Court justices who’ve repeatedly declined to strike down Trump’s executive orders. In this case, Trump has called declared the corona crisis a “war” against a foreign “invader” and granted disaster emergencies in every state. So why would anybody think wartime emergency powers wouldn’t be allowed?

    1. Yes, but let us not discount who pays the judges. They are not exactly paragons of virtue, are they?

      Let us also not forget that there is no quarantine exception to the BOR. Some people are smart enough to grok that there is no pretext upon which the BOR can be suspended, even scary pretexts.

    2. Very disappointing if true. I guess we’re all statists now.

  10. In fact, he maintained, the government should get to enjoy broad leeway to operate against the coronavirus.

    So the government should get what the Constitution was literally intended to prevent.

  11. In every country, it has been implemented to stay at home regardless of race, ethnicity and religion.

  12. Your constitutional rights are at the whim of whatever judge you draw.

  13. I’m fairly certain, the 1st amendment starts with the words, “Congress shall make no law….”.

    If Congress (and the state legislatures through the action of the 14th Amendment) “shall make no law” and President’s and Governor’s are ultimately empowered to enforce or exercise only those laws passed by the Congress and the legislatures, how can a district court judge reasonably come to the conclusion that governor’s do in fact have the lawful power to restrict or prohibit assembly for any peaceful purpose?

  14. This is textbook con law. It’s really not complicated legally. The government curtails constitutional rights, with authority, approved by courts every day. There is a sliding scale of review. Basically if the right is a big one (speech assembly equal protection) then the govt action must meet strict scrutiny. That means it must be the least restrictive means to achieve an authorized goal. Then it is sustained. No value comment here, that’s the inquiry.

  15. It would have been nice had the article included the freshly decided case in Kentucky in which a federal judge ruled the impermissibility of in-person church services unconstitutional, being that we can still go to Walmart. An injunction was issued, and the ban on in-person services lifted statewide.

    His reasoning was essentially that if it’s safe enough to go to Walmart, it’s safe enough to go to church.

    It also doesn’t hurt that some church congregations, or subsets of them, have been meeting in Walmarts. If they can’t go to church, they will congregate where they can.

    And this is why government is stupid.

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