When the communities in my area started issuing “shelter-in-place” orders in response to COVID-19, I heard a roar of protest. Many of my lawyer friends asked how the orders could possibly be constitutional. They were mainly the lawyers who had questioned the severity of COVID-19 from the get-go.
Yeah, what about that Constitution? If you listen to the folks who apparently went to that esteemed institution The Facebook School of Law, you’d learn that,
- “The government cannot prohibit me from leaving my house.”
- “You don’t have to pay any fines you get for being out during a shelter-in-place order.”
- “It’s martial law.”
- “You can’t close our church. That interferes with the way we practice our religion.”
Does the Constitution Really Say That?
In reality, these “facts” may sound good, but they’re based on a false premise: that the Constitution really means what it says. It says that the government can’t make laws that would abridge our freedom of speech or freedom to assemble or prohibit the free exercise of religion; it says that the government cannot deny someone the equal protection of the law or deprive someone of life, liberty, or property without something called “due process.”
Seems straight forward, right? If that’s true, why can’t you yell “Fire!” in a crowded movie theater? Or hold a church service in an abandoned building? It’s because people also have a right to not be trampled during a stampede or fall through a rotted floor. Where do we find those rights? And which rights are superior?
Strict Scrutiny and the Constitutional Balancing Act
If the rights in the Constitution are not absolute, we must have a way to figure out where those limits rest. Over many years the Supreme Court, the final arbiter for all things constitutional, has developed a formula for determining those limits. Fundamentally, it’s a balancing act.
First, they decide how important the right is. Then, based on the importance of the right, the Court applies one of three tests. Rights that are listed in the Constitution itself are given the most stringent review. We call it strict scrutiny.
If Shelter-In-Place Orders Restrict Fundamental Rights, Find A Compelling State Interest.
Once the court has determined that the right deserves strict scrutiny, it asks two questions:
- Is there a compelling state interest behind the law?
- Is the law narrowly tailored to achieve its intent?
With our shelter-in-place orders, the “compelling state interest” is to ensure the public’s safety and health by slowing the spread of COVID-19. I think that’s hard to argue against. “We, the People” give authority to the government to take care of some of the things we can’t do as individuals, like policing and code enforcement.
Once we establish a compelling interest, the court asks whether the shelter-in-place order is narrowly tailored to do the job. Another way to say this is whether the order uses the least restrictive means to meet its objective of keeping us safe and healthy. This is where people get hung up, and why I will never subject myself to the pillory of public office.
To find out whether the order uses the least restrictive means to curtail the spread of the COVID-19, a court will want to know the attributes of the virus, whether there are exceptions to the law, what the penalties are, how long the law will be enforced, and much more.
Shelter-In-Place Orders Will Face Strict Scrutiny — Ex Post Facto, Of Course
Fun fact: A law that is subject to strict scrutiny rarely survives. It could be struck down whole or in part. Some examples include Roe v. Wade (striking down a ban on abortion); Brown v. Board of Education (striking down segregation in public schools); United States v. Windsor (striking down a law disallowing same-sex marriage).
Occasionally a law will beat the strict scrutiny rap. One infamous case is Korematsu v. United States. During World War II, fearing the presence of spies, military authorities on the west coast ordered all persons of Japanese ancestry to relocate to internment camps. Fred Korematsu refused and was arrested. He challenged the order, but lost and took it to the Supreme Court.
In his majority opinion, Justice Hugo Black deferred to military authority, in part because of the uncertainty that prevailed after Pearl Harbor. Justice Felix Frankfurter, who concurred, later wrote that Judge Black told the justices, “Somebody must run this war. It is either Roosevelt or us. And we cannot.”
The military action, which was later repudiated, would never have been upheld in peacetime. The exigent circumstance and inherent uncertainty of war made Japanese internment seem at the time like a rational and reasonable action. Just like to many of us, the exigent circumstances and inherent uncertainty of COVID-19 make shelter-in-place orders seem like the least restrictive means to curtail spread of the virus. No doubt there will be challenges to these orders, especially if they become even more restrictive. But their constitutionality will likely be decided in 20/20 hindsight. For some of us, we’ll be happy to debate the issue then. That is, if we survive.