The extraordinary measures designed to slow the spread of coronavirus (COVID-19) continue to cause constitutional clashes. My last post ’s opening hypothetical about members of a congregation being ticketed for attending church services has now become a reality, and the Supreme Court has given its first hint on how it would strike the balance between fundamental constitutional rights and the government’s interest in preserving public health. The Court’s decision indicates that it will defer to elected officials’ decisions on how to best combat a rapidly changing and devastating pandemic. As discussed last month, Jacobson v. Massachusetts allows state and local governments to enact reasonable regulations to protect the public’s health and safety, even if those regulations would otherwise infringe on constitutional rights. The Jacobson Court, however, recognized multiple exceptions, including when the regulation (1) has “no real or substantial relation” to protecting the public health or “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law” or (2) has been enforced in “arbitrary, unreasonable manner.” Several churches have argued that shelter-in-place orders prohibiting religious services are “a plain, palpable invasion of rights secured” by the First Amendment’s Free Exercise Clause. The First Amendment states […]
