What are the constitutional limits of the state’s power to restrict fundamental rights during a pandemic? The Supreme Court has never said, at least not in a neat and tidy way, and the U.S. Constitution is silent on the matter.

What the Court has done is created the doctrine of strict scrutiny for the judicial review of various laws or executive actions that burden the exercise of fundamental constitutional rights, such as the right to the free exercise of religion, the right to peaceably assemble, and the right to travel. For these cases, the Court has said that the government must show it has a narrowly tailored policy that furthers a compelling interest in a way that is least restrictive of the constitutional right in question. 

In some of the cases going forward now, the strict-scrutiny standard will be hard to satisfy. Take, for example, the case of Gish v. Newsom, a suit brought by a group of citizens in California challenging the Riverside County stay-at-home order, which specifically includes church services among its list of non-essential activities for which citizens are forbidden from gathering. The folks bringing this case against Riverside County note that numerous other activities and industries are exempt from the order. People may go to Walmart, liquor stores, and marijuana dispensaries, but there can be no gatherings specifically at church, even if parishioners abide by other public-health and social-distancing guidelines.

You Might Like

In the important case of Oregon v. Smith (1990), the Supreme Court held that laws of general applicability that are neutral with respect to religion can be enforced against religious dissenters just like everyone else. If you can’t gather, then you can’t gather for religious reasons, either. But one might ask whether government policy is really neutral with respect to religion when it specifically prevents church gatherings even as it allows all sorts of other gatherings and activities.

If that is the case, then courts might ask the government to show a compelling interest in restricting the free exercise of religion and then demonstrate that there is no other way to achieve the same public purpose while putting fewer restrictions on the exercise of this fundamental constitutional right.

This is exactly what the Sixth Circuit Court of Appeals did in an opinion handed down on May 9, holding that “restrictions inexplicably applied to one group and exempted from another do little to further these [legitimate state public health] goals and do much to burden religious freedom.”

The U.S. District Court handling the Riverside County case went in a different direction, however, upholding the contested parts of the county’s stay-at-home order on the grounds that “during an emergency, traditional constitutional analysis does not apply.” For this assertion, the district court relied on Jacobson v. Massachusetts, a 1905 case about mandatory vaccination that predates the modern Court’s creation of strict scrutiny.

Those who now urge maximum deference to the executive branch during times of crisis should recall that history is replete with examples of executive power abused. James Madison’s observation that enlightened statesmen will not always be at the helm seems, in hindsight, to have been something of an understatement.

Consider as a relevant cautionary tale the case of Buck v. Bell (1927), which upheld the authority of state departments of health to forcibly sterilize people deemed by experts to be unfit for reproduction. With only one dissenting vote, Justice Oliver Wendell Holmes wrote in his majority opinion that the “principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” before citing Jacobson v. Massachusetts as the sole sustaining precedent.

Courts are now returning to Jacobson for guidance in our current public-health crisis, bringing into focus our constitutional challenge: There must be some circumstances in which it is reasonable to restrict constitutional rights for the sake of the common good, but allowing for such restrictions requires that we draw and maintain limits on the exercise of that power. Deciding when the government may burden rights comes with a prudential calculation about how that power will be used, not just now but also in the future.

When we peel away the judicial glosses and doctrinal formulas designed to address this problem, the question, at the end of the day, is this: Is this government policy and its particular application, as a response to this pandemic, justified? Is it reasonable?

There is, of course, a second, related question: Who gets to decide? The answer in our political system is that we decide, through a back and forth conversation among citizens, legislators, executives, and finally judges, who will consider these policies in light of a contested jurisprudential framework for constitutional rights built over the last century and a half.