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Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

(Bloomberg) -- U.S courts won’t block governors’ stay-at-home-orders. At least not yet.

With some lockdowns about to begin their third full month, a growing number of business owners, church-goers, beach enthusiasts and politicians have filed lawsuits claiming the restrictions violate their rights. But so far, judges are deferring to the government, saying it’s for elected officials to decide what’s needed to fight the spread of Covid-19.

“Monday morning quarterbacking is the role of sports fans, not courts reviewing the factual basis supporting executive action to protect the public health,” Michigan Court of Claims Judge Christopher Murray said in an April 29 ruling. “Instead, it is the role of the executive and legislative branches to determine what steps are necessary when faced with a public health crisis.”

Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

Judges in California, Michigan, New York, Texas and elsewhere have largely declined to second-guess restrictions aimed at combating a pandemic that’s killed more than 70,000 people in the U.S., with the death toll expected to rise. Even the U.S. Supreme Court on Wednesday refused a request by local businesses to lift a shutdown order in Pennsylvania, despite public protests by armed militia groups and President Donald Trump’s call to “liberate” shuttered states.

Still, several judges have warned that the government doesn’t have carte blanche, and that deference to state power could change in the weeks ahead.

The case that’s most influential for judges is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision involving mandatory smallpox vaccinations in Massachusetts.

The 115-year-old legal precedent empowers states to temporarily curtail constitutional rights in the face of a society-threatening epidemic, as long as the measures have a substantial connection to the public-health emergency and aren’t arbitrary.

In Michigan, Murray relied on Jacobson in denying a request by some residents to block provisions of the state’s stay-at-home order because it would prevent them from going to their vacation rentals. An individual’s fundamental rights are not so absolute that they outweigh the interest of fellow citizens “to remain unharmed by a highly communicable and deadly virus,” the judge said.

“Unless there’s a question of discriminating against a constitutional right, as in the religion cases, Jacobson should be the beginning and almost the end,” said Mark Tushnet, a professor at Harvard Law School. “A higher standard comes into play only if the activity is somehow bound up with a constitutional right -- yes for religious services, no for beauty parlors, etc.”

The Jacobson precedent isn’t just being used to rebuff claims of lost personal freedoms. The federal court of appeals in New Orleans last month cited it in a decision to reinstate Texas’s temporary ban on abortions during the pandemic.

Fighting ‘Stay Home’

  • California: Orange County cities sue over beach closings; Governor Gavin Newsom allows some to reopen only for walking, cycling
  • Minnesota: Churches, businesses, “pro-freedom” group sue Governor Tim Walz for choosing economic “winners and losers”
  • Illinois: Judge says Republican lawmaker Darren Bailey can ignore order of Governor J.B. Pritzker, a Democrat
  • Virginia: U.S. Justice Department supports church suing to conduct services using social distancing precautions

Churches have been at the forefront of legal challenges, particularly in seeking to resume in-person services. Most of these efforts have been rebuffed because there was no evidence that religious services were treated differently than any other communal activities.

Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

One exception was a federal appeals court in Cincinnati, which ruled May 2 in favor of a Kentucky church that had conducted drive-in services for members in their cars. State troopers said the attendants were engaged in criminal activity and required them to quarantine for 14 days. The court did preserve restrictions on services inside the church.

Discrimination?

But the judges went to some length to say Kentucky’s stay-home order could smack of discrimination if purportedly life-sustaining services, including law firms, laundromats and liquor stores, are allowed to operate under public health guidelines whereas “soul-sustaining” services aren’t permitted even if they follow the same guidelines.

“Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers?” the three-judge Cincinnati panel asked. “Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”

That doesn’t mean legal challenges are likely to gain traction, said David Super, a professor at Georgetown Law.

“Because the facts in this case were so unusual, it is unlikely to serve as a meaningful precedent even in the Sixth Circuit,” Super said. “Public officials do make mistakes.”

Too Burdonsome

While courts are mostly deferential to the states, that may not last. The Texas Supreme Court on Tuesday signaled some measures may be too burdensome if they aren’t justified by up-to-date facts.

“When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns,” Justice James Blacklock wrote for the court, which cited procedural flaws in denying a petition to overturn the state’s stay-home order. “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”

Some states are already making adjustments for provisions challenged in court. In Michigan, a restriction on visiting second homes in the state was rescinded, California’s governor allowed some beaches to reopen, and Illinois agreed to church services of 10 or fewer people.

Trump has agitated since March to end some state provisions including social distancing, which has collapsed the U.S. economy -- the chief argument for his re-election campaign.

Relaxing Restrictions

Several mostly Republican-run states across the South and Midwest -- including Texas, Georgia, South Carolina, Florida, Ohio and Missouri -- continue to take steps to significantly relax restrictions that were put in place against the coronavirus outbreak. The Republican-controlled legislature in Michigan sued to block the governor’s stay-at-home order under state law.

As the pandemic slows and pressure mounts to revive the economy, courts will start becoming more receptive to looking at external factors in weighing lawsuits filed by businesses, rather than deferring to a blanket authority for states to keep restrictions in place, said Melissa Murray, a professor at New York University School of Law.

“As time goes on and the orders stay unabated, courts will stop looking at the cases in a vacuum,” Murray said. “This is not just a public-health crisis. It’s also an economic crisis.”

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