With protests at home and throughout the country calling into question the constitutionality of public health and safety orders requiring face masks and social distancing, one local expert says such measures are “clearly constitutional.”
University of Idaho law professor and constitutional scholar Richard Seamon said while the constitution confers certain rights to the citizenry, no right is absolute — particularly when they infringe on the rights of others.
Seamon said for the moment, there is a strong public health interest in requiring people to take reasonable precautions to prevent the spread of disease. He said federal, state and local governments are within their rights to mandate caution. He said while there isn’t much by way of precedence establishing mask orders as constitutional, as far back as the bubonic plague, governments have taken steps to inhibit the spread of infectious disease that limit personal freedoms, including quarantine.
“It is true that requiring people to wear masks is a restriction on their liberty — you can usually wear what you want (and) by and large the government can’t require you to wear something else,” Seamon said. “In a case like this one, I think the public interest clearly outweighs the minor inconvenience of having to wear a mask.”
Moscow Mayor Bill Lambert issued the initial public health emergency order in late June which required facemasks in most public settings where 6 feet of social distancing cannot be maintained. Moscow City Council later extended the order by resolution multiple times, with the most recent extension ending Jan. 5.
Since it was enacted, demonstrators have gathered multiple times to protest the order, with many decrying such mandates as unconstitutional. However, Moscow city supervisor and former city attorney Gary Riedner agreed with Seamon saying constitutionally assured rights are not limitless.
Riedner said there are also checks and balances against inordinate power to issue mandates, even at the local level. The mayor can issue an order for seven days, he said, but extension of the order requires a resolution from the city council.
“That’s a check in and of itself … a mayor can’t (issue) an indefinite order, he can only do it for seven days,” Riedner said. “Then the council has to say, within that seven days, ‘we think the mayor made a good decision, we’re going to extend it for a period of time.’”
Seamon pointed out other established responsibilities of the citizenry — like the requirement to serve on juries or comply with military drafts — are generally not considered to be unconstitutional.
Seamon said he does see problems with orders restricting gatherings when they single out some groups for specialized treatment. He said orders specifically prohibiting religious groups from gathering could potentially be problematic. However, Seamon said, if such orders were written more broadly and did not identify specific groups for specialized treatment, they would have sturdier constitutional footing.
“Some of the laws that restrict group gatherings are suspicious to the extent that they single out some activities for favored treatment and others are disfavored,” he said. “I think some of those laws have been problematic — if you’re entitled to visit the Costco, the liquor store and casinos and things like that, there’s no reason you shouldn’t be entitled to gather for worship.”
Scott Jackson can be reached at (208) 883-4636, or by email to firstname.lastname@example.org.