As the ban on large gatherings continues in the Virginia, some question whether it violates their 1st Amendment right to assembly.
Dozens of Virginia residents gathered in Richmond last week to rally for the state to re-open despite concerns of the coronavirus pandemic. Similar protests have occurred in other states such as Michigan, where protesters argue the ban on gatherings is violating their constitutional rights.
To prevent the spread of the coronavirus, Gov. Ralph Northam declared a statewide ban on public gatherings and the closure of non-essential businesses through May 8. During a news conference on April 10, Northam said easing restrictions is “absolutely the wrong thing to do,” but some residents disagree.
“We aren’t encouraging large gatherings,” said John March, spokesman with the Republican Party of Virginia. “But it’s a constitutional issue…We want to encourage social distancing, it’s a real thing going on but there’s real people who are really hurting.”
While the 1st Amendment of the U.S. Constitution guarantees the right to assemble peaceably and petition the government, these rights can be restricted if public safety is a concern, said Neal Devins, a constitutional law professor at William & Mary.
Devins said the government has police powers to create regulations in public interest. Police Powers are a fundamental right of a government granted in the 10th Amendment that allow states to establish and enforce laws that protect the welfare and safety of the public, according the the Legal Information Institute.
That means Northam has the power to create the restrictions if he believes there is a credible threat to public health.
“It may raise an issue of freedom of assembly or some other constitutional right but so long as the government has compelling justification and no better alternative…the government can place limits on rights,” Devins added in an email. “There is no question that the most compelling governmental interest of all is saving the lives of its citizens.”
Jud Campbell, a constitutional law professor with the University of Richmond, said those types of restrictions have been in place since the early 1800s when the country had frequent epidemics of yellow fever. During that time, the U.S. Supreme Court had cases to discuss government rights during a pandemic which still apply today.
State governments have the right to place restrictions only if they are doing so in an “even-handed” manner, Campbell said. This means governments can’t restrict groups from protesting while allowing other organizations to assemble for different reasons.
But Campbell said as the pandemic progresses, state governments will have to determine on their own how to ease up on restrictions.
According to a three-phase set of guidelines from the Centers for Disease Control and Prevention, states need to have a two-week decline in positive test results to even begin considering reopening.
In Virginia, positive tests continue to increase.
As of Tuesday, 9,630 positive cases and 324 deaths in the the state, according to data from the Virginia Department of Health. And as these numbers continue to rise, the state government has a right to protect the welfare of its residents.
“It really turns on what the public health threat is and what the available options are to grapple with that threat,” Campbell said. “If the government has a way to handle public safety while allowing people to engage in assembly and religion, then they should allow those to proceed. But if the public health threat doesn’t allow people to congregate, then their rights give way to the public safety interest.”
Devins said the situation is similar to a burning building: if a building were on fire and people still wanted to congregate inside, the government has a right to stop them in order to protect their well-being.
However, state governments have the ability to decide how far they want to take those restrictions, Devins added. For example, the stay-at-home order from Florida Gov. Ron DeSantis doesn’t bar residents from attending church services.
As the coronavirus pandemic continues, restrictions on constitutional rights will have to be determined on severity and public health interests.
“When you have police power, that doesn’t mean you have to exercise it in full throttle,” Devins said. “It’s up to [the governor] to figure out how far to go.”
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