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Legal expert worries stay-at-home orders put constitutional rights ‘in peril’

Protesters in Olympia. (Getty Images)

Are stay-at-home orders unconstitutional? In Washington state and across the country there have been lawsuits filed against these orders, and while some have already been slapped down, others are waiting legal decisions.

Belmont University professor David Hudson is a legal expert on the First Amendment and the Constitution. He told the Gee and Ursula Show on KIRO Radio that there are many factors involved in evaluating a stay-at-home order.

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“The first line of inquiry, of course, is that the government has a compelling governmental interest in issuing the lock down order. And that’s a legal term for an extremely strong interest,” Hudson said. “So most courts so far have held that the government certainly has a compelling governmental interest in taking emergency measures to protect the public.”

“However, there’s a second part to the legal test, and that is that the government generally must act in a very narrowly tailored way,” he added.

That’s often referred to as the way that’s the least restrictive to constitutional freedoms, he explained, and is where he thinks some of these orders may be “constitutionally problematic.”

“They are broad scale, across the board edicts from the government that do directly impact First Amendment freedoms,” Hudson said.

The successful challenges so far have been those that have identified differential treatment. Hudson gave the example of a Louisville, Kentucky mayor who banned drive-in religious services. Since you should drive up to a liquor store or to other entities, but not to church, the federal court held that this ban was unconstitutional.

“The court there held that [the ban] violated the free exercise clause of the First Amendment, which protects our right to religious liberty,” Hudson said.

In Washington state, there are a number of counties that have lower numbers of cases and deaths from coronavirus but are on the same order and same phase-in plan as the entire state. A group of Republican lawmakers have filed a lawsuit against Gov. Inslee’s order.

“Certainly if you’re in a location where there aren’t a significant number of cases and there’s not widespread outbreak, then it would seem that you’ve got to open up the economy at some point and let people make a living, right?” Hudson asked. “We can’t be shut down forever.”

Hudson recognized that the counter to that, though, also makes a fair point in that a county could reopen and then seen a rise in cases.

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“We are in sort of this new territory here, but I sympathize with the idea that, look, we can’t just sit at home forever. We’re going to have to try to get back on our feet at some point,” he said.

In terms of personal freedoms, the right to travel is a fundamental right, as is the freedom of assembly. The free exercise clause in the First Amendment gives us protection to practice whatever religious faith we believe in or none at all.

“The question becomes whether when the government actually enacts one of these flat bans is there some less restrictive way they could do it, maybe allow more people, but then distance themselves from one another,” Hudson said. “And then, obviously, yes, the right to travel is also a fundamental right. So when you limit people’s movement, that is a direct infringement on that right.”

Hudson admitted that this is all quite complicated and not an easy determination as to whether something is constitutional or not.

“It’s fair to say that there are a dizzying array of First Amendment issues that are arising now in the COVID-19 environment,” Hudson said.

“There are cognizable arguments on either side, frankly,” he added. “But I do worry just from a sort of panoramic point of view that in the haste to protect people, our constitutional rights are in jeopardy; they’re in peril.”

Listen to the Gee and Ursula Show weekday mornings from 9 a.m. – 12 p.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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