Kara Sears
The COVID-19 pandemic has brought shelter-in-place orders into the spotlight, with many questioning whether such directives are constitutional. In the United States, these orders have raised concerns about constitutional freedoms, including the right to assemble, petition the government, and freedom of religion. The First Amendment and state constitutions protect these rights, and some argue that broad shelter-in-place restrictions, like those in New York, directly challenge these fundamental freedoms. While emergency powers allow for certain limitations, the constitutionality of shelter-in-place orders is being tested in courts, with lawsuits claiming violations of economic and property rights and equal protection rights. The outcome of these cases will depend on specific facts and the ability of governments to demonstrate that the restrictions serve an important public interest and are not arbitrary.
| Characteristics | Values |
|---|---|
| Constitutionality | The US Constitution protects the right to freedom of religion and to peaceably assemble as fundamental rights. |
| The First Amendment protects expressive activities against government interference. | |
| The US Constitution also protects economic and property rights. | |
| The Fifth Amendment states that the government cannot take private property for public use without "just compensation". | |
| The 14th Amendment defends equal protection rights. | |
| The US operates under a different governmental structure than China, with constitutional limits on the powers of state actors. | |
| County Boards of Public Health can issue quarantine orders. | |
| The burden of proof is on the county to show that someone is infected or exposed to the disease. | |
| The Supreme Court has sided with state and local governments in the past. | |
| The ACLU has not shown much difficulty with the various "shelter in place" orders. | |
| The Governor of Minnesota is in violation of MN statue 144.4195 DUE PROCESS FOR ISOLATION OR QUARANTINE OF PERSONS. | |
| Legal challenges | Clyde Armory is suing Athens over the Shelter in Place Ordinance, arguing that it is "unduly intrusive" and a violation of the US Constitution. |
| Attorney General William P. Barr threatened to support the plaintiffs and told federal prosecutors to "be on the lookout" for unconstitutional restrictions. | |
| The lawsuits claim that state and local governments have deprived the plaintiffs of economic and property rights protected by the Constitution. | |
| The outcome of a lawsuit will depend on the party of the Governor ordering the ban. |
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What You'll Learn
Freedom of religion and assembly
The First Amendment of the US Constitution guarantees the right to freedom of religion and the right to assemble and petition the government. These rights are also protected by many state constitutions, which describe them as "inalienable rights" or "natural rights".
Shelter-in-place orders during the COVID-19 pandemic have raised questions about whether these orders violate the constitutional right to freedom of religion and assembly. Some argue that these orders, which restrict gatherings of individuals, directly challenge religious and political gatherings, and infringe on the right to petition the government. For example, New York's shelter-in-place order, which banned all "nonessential gatherings of individuals", was seen as unconstitutional by some as it curtailed these expressive activities protected by the First Amendment.
However, others argue that the government has the authority to implement such orders during a public health emergency. The Religious Freedom Restoration Act (RFRA) of 1993 restored the right to free exercise of religion in the context of federal prohibitions. During the COVID-19 pandemic, states with RFRAs in place had a harder time compelling churches to close compared to states without RFRAs.
The closure of churches during the pandemic has also been a topic of debate. While some argue that it infringes on religious freedom, others point out that not all religions require public gatherings to commune with God. Additionally, courts have typically deferred to parental rights when motivated by religious beliefs, such as the right to homeschool.
The impact of shelter-in-place orders on businesses has also been controversial. Some argue that the government's arbitrary determination of which businesses can stay open and which must close is a regulatory taking and a violation of due process. However, others argue that the government has a responsibility to protect public health and safety, and any place where people gather could potentially spread COVID-19.
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Equal protection rights
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, mandates that individuals in similar situations be treated equally by the law. This clause, which came into effect in 1868, was a significant shift in American constitutionalism, imposing greater restrictions on the states. The Fourteenth Amendment states that no state shall "deny to any person within its jurisdiction the equal protection of the laws". This was partly a response to the rise of Black Codes, which were restrictive laws that perpetuated the inferior status of black Americans. The Equal Protection Clause was also influenced by the Civil Rights Act of 1866, which stated that all persons born in the US were citizens and entitled to the "full and equal benefit of all laws and proceedings for the security of person and property".
The interpretation of the Equal Protection Clause has been subject to much debate. Courts use different levels of scrutiny, depending on the nature of the classification and the rights affected. These include strict scrutiny, intermediate scrutiny, and rational basis review. The Equal Protection Clause has inspired the well-known phrase "Equal Justice Under Law".
While the US Constitution does not specifically mention the right to sufficient housing, it does guarantee the right to life and personal liberty, which includes the right to housing. The right to adequate housing is also recognised in international human rights law, such as the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR prohibits the practice of forced eviction, considering it a violation of privacy, security, and liberty, and a breach of human rights.
To promote equal protection in housing, the Fair Housing Act prohibits discrimination in housing based on religion and disability. This includes failing to make reasonable accommodations in land use and zoning policies to provide persons with disabilities equal opportunities in housing. The Act also addresses discrimination in mortgage loans and home improvement loans, as well as instances where force or the threat of force is used to deny fair housing rights.
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Due process
The right to due process is a fundamental aspect of the US Constitution, and it is often cited in discussions about the constitutionality of shelter-in-place laws. Due process refers to the legal requirement that the government must follow fair procedures and respect the rights of individuals when depriving them of life, liberty, or property.
In the context of shelter-in-place orders, some argue that these orders violate due process by arbitrarily deciding which businesses can remain open and which must close, effectively depriving business owners of their economic rights and property rights without a proper legal process. The determination of compliance with shelter-in-place orders is left to individual officers, leading to concerns about “unbridled discretion” and a lack of consistent evidentiary rules.
Additionally, shelter-in-place orders may infringe upon other constitutional rights, such as the freedom of religion and the right to peaceably assemble. These rights are considered fundamental and inalienable in the US Constitution and the constitutions of many states. When the government restricts gatherings to a certain number of people, it may be seen as granting permission for assemblies under certain limited terms, rather than recognising the inherent right to assemble.
However, proponents of shelter-in-place laws argue that they are necessary to protect public health and safety during a deadly pandemic. In the US, counties are generally authorised by the state to make laws for the "promotion of health and quarantine." While shelter-in-place orders may raise complex legal questions, the specific constitutional rights at stake, and the necessity of the government's actions to protect public health, will likely be central to any legal challenges.
Furthermore, the right to due process is not limited to citizens. Immigrants and noncitizens in the US also have constitutionally guaranteed rights to due process, as explained by lawyer Raha Wala. Wala emphasised that regardless of immigration status, individuals have the right to remain silent, the right to be treated with respect, and the right to due process under the law if detained by federal agents or law enforcement.
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Government overreach
The COVID-19 pandemic saw governments across the world imposing various restrictions on their citizens in an attempt to curb the spread of the virus. One such measure was the imposition of "shelter-in-place" or "stay-at-home" orders, which required people to remain in their homes except for essential purposes. While these orders were implemented with the intention of protecting public health, some have argued that they constitute government overreach and violate constitutional rights.
One of the main arguments against shelter-in-place orders is that they infringe upon the right to freedom of assembly and religion. The First Amendment of the US Constitution protects the right to assemble peacefully and guarantees freedom of religion. Shelter-in-place orders, such as the one implemented in New York, banned all "nonessential gatherings of individuals," directly challenging religious and political gatherings. This, in turn, curtails the ability of individuals to petition the government, as protected by the First Amendment. While there is case law that permits certain "time, place, and manner" restrictions on gatherings, the comprehensive nature of some shelter-in-place orders does not meet constitutional standards.
Additionally, the arbitrary nature of these orders has been called into question. The government's authority to determine which businesses can remain open and which must close is seen as capricious and a form of regulatory taking. There is no mechanism for business owners to challenge these decisions, and they are effectively deprived of the economic value and use of their property. This raises concerns about due process and just compensation, as guaranteed by both state and US Constitutions. The equal protection rights defended by the 14th Amendment may also be violated if certain businesses are closed while others remain open without a rational basis.
Furthermore, the implementation of shelter-in-place orders raises questions about governmental interference in religious practices. While some religious groups have accepted these restrictions, the argument that the government can dictate when, where, and how many people can gather for religious purposes goes against the fundamental principles of religious freedom upon which America was founded. The right to freedom of religion is an inalienable right that pre-exists all law and government, and shelter-in-place orders that restrict religious gatherings infringe upon this right.
The debate surrounding shelter-in-place orders and government overreach is complex and multifaceted. While the primary goal of these orders is to protect public health, they must also uphold the constitutional rights of citizens. The COVID-19 pandemic has presented unique challenges that have tested the limits of governmental powers and highlighted the delicate balance between public safety and individual liberties.
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Constitutional limits
The United States Constitution and the constitutions of individual states impose limits on the powers of state actors, even in emergency situations. The First Amendment, for instance, protects expressive activities such as religious and political gatherings, and the right to petition the government. While the US Supreme Court permits certain "time, place, and manner" restrictions on First Amendment gatherings, comprehensive bans on such gatherings do not meet constitutional standards.
The Fifth Amendment's Takings Clause also protects private property from being taken for public use without "just compensation". In 2002, the Supreme Court decided in *Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency* that temporary restrictions did not constitute regulatory takings. However, the court noted that temporary restrictions might rise to the level of regulatory takings depending on the specific factors of each case.
Some have argued that shelter-in-place orders violate the right to due process and equal protection under the law. For example, the breadth of New York's shelter-in-place order, which barred all "nonessential gatherings of individuals", has been criticised for curtailing individuals' ability to petition their government. Similarly, the arbitrary nature of determining which businesses can stay open and which cannot has been characterised as a regulatory taking, depriving business owners of the economic value and principal private use of their property without due process or just compensation.
The Georgia Municipal Association (GMA) notes that Georgia counties are explicitly authorised by the state to make laws "for the promotion of health, and for quarantine". However, the power to issue quarantine orders may not be applicable to a county-wide shelter-in-place order where individuals are not specifically quarantined. The test courts might use to determine the merit of a lawsuit related to shelter-in-place orders is called "strict scrutiny". This test requires the government to show there is an important public interest involved and that the law is focused on solving the specific problem at hand, without being arbitrary or overly broad.
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Frequently asked questions
The constitutionality of shelter-in-place laws in the United States is a complex issue and the subject of ongoing debate. While some argue that these laws violate constitutional rights, such as freedom of religion and assembly, others contend that they fall within the government's emergency powers. The Supreme Court's precedent generally supports state and local governments, but each case is unique and must be examined individually.
Shelter-in-place laws have been criticised for infringing on constitutional rights, including freedom of religion, assembly, and petitioning the government. They are also accused of violating due process and equal protection rights, particularly regarding business closures, which may be deemed arbitrary and capricious.
Legal challenges to shelter-in-place laws have been mounted by individuals and businesses, arguing violations of constitutional rights. The outcome of these lawsuits is uncertain, and the courts will apply strict scrutiny, considering the government's public interest and the specificity of the measures. While some argue that the laws are within the government's emergency powers, others contend that they lack due process and just compensation for affected businesses.
