A new federal court decision supports the view—expressed in previous columns here and here—that Colorado’s shut-down orders are unconstitutional. Those orders include one issued by the governor and a slightly broader one issued by the Department of Public Health and Environment.
The court decision was issued in a case entitled On Fire Christian Center v. Fischer. A Kentucky federal judge granted a temporary restraining order stopping the city of Louisville from banning drive-in Easter church services. The judge concluded that the city was unlikely to carry its burden of proving there was a constitutional reason for infringing free exercise of religion.
You might not think the case is relevant because Colorado’s orders exempt religious meetings. But the court’s reasoning undercuts Colorado’s orders in other ways.
States have extensive power to respond to emergencies. The Supreme Court affirmed that in the 1905 case of Commonwealth of Massachusetts v. Jacobson. The justices ruled that in an emergency, constitutional rights may reasonably restricted “as the safety of the general public may demand.”
On April 7, a federal appeals court in Texas relied on the Jacobson case when it upheld a partial state moratorium on abortion services. But Jacobson doesn’t save the Colorado orders. In the 115 years since that case was decided, the Supreme Court has held that a long list of rights listed in the federal Constitution limit state and local governments as well as the federal government. Additionally, during that time the Supreme Court has singled out particular rights as “fundamental” and protected them much more robustly than the court did in Jacobson. These fundamental rights include the right to travel, to assemble, and to free exercise of religion.
When considering an abortion restriction, the Texas federal appeals court could apply the Jacobson standard because according to the Supreme Court the right to abortion, while important, is not “fundamental.” Government may restrict fundamental rights, however, only if (1) government has a compelling purpose (or “compelling interest”) and (2) the restriction is “narrowly tailored” toward solving the problem. The burden of proof in such cases is on the government.
We can agree that Colorado’s shut-down orders serve a compelling purpose. But they are not “narrowly tailored.”
To be “narrowly tailored,” a restriction has to be closely targeted at the problem. If it is too scattershot, the courts say it is overbroad. Also, a measure is not narrowly tailored if it contains exceptions unrelated to the public emergency. In that event, it is underinclusive.
Here are some examples of ways in which Colorado’s orders are overbroad:
* They ban most automobile travel, even though viruses do not jump from car to car.
* They ban most travel through Colorado from and to other states—even without stopping here.
* They prohibit businesses and other activities even if they could be conducted safely by observing proper health restrictions.
Here are examples of ways in which Colorado’s orders are underinclusive:
* They create exceptions for pot shops and liquor stores while closing tobacco and other stores.
* They leave “big box” stores open while closing smaller competitors.
* They grant categorical exemptions to some people (such as electricians and plumbers) irrespective of whether they are doing anything critical—while preventing others from earning a living;
* They allow travel for trivial reasons (such as feeding a friend’s pet snake) while banning far more important travel (such as attending your mother’s funeral).
* They continue to permit mass transit—even though a mass transit vehicle can be a viral Marti Gras.
The judge’s opinion in On Fire Christian Center v. Fischer adopts the same mode of reasoning.
First: The judge recognized that free exercise of religion is a fundamental right. So this “requires Louisville to prove its interest is ‘compelling’ and its regulation is ‘narrowly tailored to advance that interest.’”
Second: The judge acknowledged that fighting COVID-19 is “a compelling interest.”
Third: However, that the mayor’s order was not “narrowly tailored to advance that interest.”
Now let’s look at an excerpt from the opinion. Notice how the judge underscores his points using the same exemption for liquor stores we have in Colorado: “. . . Louisville’s actions are ‘underinclusive’ and ‘overbroad.’ They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are ‘essential.’ Those ‘essential’ activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is ‘essential,’ so is Easter.”
The judge continues: “Louisville’s actions are also overbroad because, at least in this early stage of the litigation, it appears likely that Louisville’s interest in preventing churchgoers from spreading COVID-19 would be achieved by allowing churchgoers to congregate in their cars as On Fire proposes. On Fire has committed to practicing social distancing in accordance with CDC guidelines. ‘Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.’ Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.”
See how this reasoning applies to the Colorado orders: Like Louisville, the state prohibits activities—and our right to travel to those activities— that could be safe with social distancing. And it contains exceptions unrelated to the needs of the emergency.
In sum, Colorado’s orders are classic examples of infringements of fundamental rights that are both overbroad and underinclusive—and therefore unconstitutional.
Rob Natelson served as a law professor for 25 years. Among other courses, he taught constitutional law, constitutional history, advanced constitutional law, and First Amendment. His research has often been quoted at the U.S. Supreme Court, both by justices and by parties. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver.