During the Covid-19 pandemic we heard a lot of claims that rights were being violated by mask requirements and now vaccination requirements. Every once in a while I would get a call asking for a legal opinion on the subject, so for what it’s worth, here it is. I would also commend to readers the NH Public Radio’s Civics 101 project, whose reporters have done an excellent job analyzing some of the important legal issues in the United States.
In analyzing whether someone’s “rights” are being violated, the first question is what is the right, and where did it come from? So, for example, we have certain rights granted by the United States Constitution, certain rights granted by the New Hampshire Constitution, and certain rights granted by laws passed by the United States Congress and the New Hampshire Legislature. In none of these documents do we find a grant of a “right” not to wear a mask.
But what about the argument that the First Amendment to the U.S. Constitution prevents the government from requiring masks? The First Amendment protects:
The freedom of speech
The freedom to practice religion
The right to assembly
The right to air out your grievances against the government
None of these are prevented by wearing a mask.
But even if a mask may make practicing some of these rights more difficult, say speaking (and trust me, I know – on a couple of occasions I have had to appear in a courtroom before a judge while wearing a mask, and my already soft voice had an even harder time making my arguments), our Constitution allows even protected rights to be restricted for the benefit of the greater good. In the 1919 case of Schenck v. United States, Justice Oliver Wendell Holmes introduced the famous analogy that the right of free speech “would not protect a man in falsely shouting fire in a theatre and causing a panic.” The great benefit to our community, friends, and families of wearing masks to limit the spread of Covid 19, which was supported by scientific research and opinion outweighed the small infringement on our liberties.
So the second question is whether, if a right is restricted, the benefit of the restriction to society outweighs the inconvenience to the individual. In answering that question, courts usually give deference to the legislative body that passed the restriction, because it requires balancing interests, and the belief is that our elected representatives have conducted a sufficient investigation into the needs of their constituents and the burden on them which results from restricting a right, and the courts should not second-guess them by making an independent investigation.
A notable exception to this was the Supreme Court’s February decision in South Bay United Pentecostal Church v. Newson, https://www.supremecourt.gov/opinions/20pdf/20a136_bq7c.pdf, which struck down California’s ban on in-person church services. The decision is interesting reading, because, instead of only one opinion, it includes the opinions of several different justices, and illustrates how difficult the “balancing” of restrictions that affect Constitutionally-protected rights can be. In this case, unlike that of mask requirements, California’s ban clearly restricted three of the rights protected by the First Amendment – speech, assembly, and religion. But there was also strong scientific evidence that large gatherings of unrelated people, especially with a lot of singing and talking, increase the spread of Covid – indeed, some of the most heartbreaking stories at the beginning of the pandemic resulted after church or choir members gathered, being unaware of the risk. Part of the problem was that, while banning religious services, California still allowed other types of non-religious gatherings. A majority of the Court agreed that banning singing and chanting at church services was justified, but that an outright ban on assembling (as opposed to less restrictive measures such as requiring masks and social distancing) was not. As Justice Roberts explained, “federal courts owe significant deference to politically accountable officials with the ‘background, competence, and expertise to assess public health.’… The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework. At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
So far I have discussed only the situation where it is the Government which is restricting a right. And that is because our Constitution only restricts what governments can do – not private citizens or businesses. In most instances, they can do whatever they want, even if it limits the freedom of others, and are restrained only by market forces or laws which specifically prohibit certain activities. Thus, even if, according to the Supreme Court, churches cannot be banned from holding in-person services, the Constitution does not prevent a church from voluntarily suspending such services, as most did until recently, including our own Community Church in New Boston. Fortunately, for those of us who enjoy Woody Woodland’s sermons (including his bad jokes) and Sam Gorton’s singing, we were able to worship via Facebook.
And even though most lawyers would agree the Government cannot require vaccinations – although it can strongly encourage them, and spend taxpayer money providing them – private businesses can refuse to hire or serve people who are not vaccinated. This was illustrated in the recent decision of Bridges v. Houston Methodist Hospital, https://int.nyt.com/data/documenttools/houston-methodist-court-ruling/3468984fc566cea5/full.pdf, in which a Federal court in Texas held that a hospital can fire health care workers who refuse to get vaccinated. Judge Lynn Hughes noted “Bridges says that she is being forced to be injected with a vaccine or be fired .This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID -19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID -19 vaccine ; however, if she refuses, she will simply need to work somewhere else. If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”
We are fortunate to live in a country where our legitimate rights are protected, but so are our health and safety. I hope I have helped to shed some light on the ways that the law enforces those goals, and supports the difficult decisions lawmakers, businesses, and individuals sometimes have to make to keep us free, safe, and healthy.