Justice Roberts assists states with second wave of emergency orders

Justice Roberts assists states with second wave of emergency orders
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A future spike in coronavirus infections is bound to lead to another wave of emergency orders that set restrictions on the way Americans live, work, and play. Individuals and groups opposed to state and local efforts which are designed to blunt the renewed spread of the pandemic will be ready with legal challenges. States, in defending the next round of orders, will be able to point to Supreme Court Chief Justice John Roberts.

Roberts appended a concurring opinion to the Supreme Court denial of an injunction in the case of South Bay United Pentecostal Church versus Gavin Newsom. It concerned a California emergency order that placed a temporary numerical restriction on public gatherings in order to prevent the spread of the coronavirus. State guidelines at the time had restricted large public gatherings of people “in close proximity for extended periods of time,” including music concerts, university lectures, movie screenings, spectator sports, theater performances, and places of worship.

In his opinion, Roberts explained that the First Amendment posed no bar to the emergency order because the state subjected similar secular and sectarian activities to identical restrictions, placing no particular burden on religious gatherings. Roberts recognized that governors are facing an unprecedented public health crisis, a situation poorly suited to second guesses by federal judges who lack the “background, competence, and expertise” to assess efforts to address the emergency situation.

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This reasoning should prevail in most cases where individuals seek to use constitutional rights protections as a means to undermine the efficacy of emergency orders aimed at halting the spread of a disease for which, as Roberts noted, we have no known cure, vaccine, or effective treatment. His lesson for governors, for whom it is not too early to be thinking of a next potential wave of the pandemic, is to draft emergency restrictions that treat constitutional rights protections the same as others.

The current medical thinking is that the disease spreads most readily the more time people are indoors, close together, and with someone who is infected. It follows that states should seek to limit gatherings at places and situations where people are likely to be together for long periods of time, regardless of the nature of the event. The coronavirus, after all, will not discriminate between music concerts and church services.

If the government treats all places and situations in the same way, then individuals cannot claim the state discriminates against constitutional interests as a wedge to undermine emergency orders. If Massachusetts had the benefit of the opinion of Roberts in the case of South Bay United Pentecostal Church when the state defended its emergency order which treats gun shops the same as all similar nonessential businesses in federal district court, perhaps the court would not have concluded that the order had imposed an “improper burden” on the Second Amendment rights of citizens who were seeking to buy firearms and ammunition.

There is little doubt that treating gun shops as nonessential businesses served to promote the key public interest in the health of Massachusetts residents. When the court had finally held a hearing on the request for an injunction, thousands of Massachusetts residents were infected and the coronavirus had claimed more than 4,000 lives. To flatten the curve and slow the spread, the state had to reduce potential vectors where it could. Even conditions the court ultimately approved, such as masks and social distancing, could not eliminate gun shops as vectors in the same way as preventing contact, as with other nonessential businesses.

At the end of the day, the concurring opinion by the chief justice in the case of South Bay United Pentecostal Church suggests an important role for the federal judiciary in the midst of the pandemic that today seems to be imbued as it is with modesty and appropriate deference to state and local officials who must, under the constitutional system in this country, bear the responsibility for keeping citizens safe and healthy.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”