During the COVID-19 pandemic, we heard a lot of claims that rights were being violated, first by mask requirements and then by vaccination requirements.
In determining whether someone’s rights are being violated, the first question is, what is the right, and where did it come from? We have certain rights granted by the United States Constitution, others granted by the New Hampshire Constitution, and others 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” to not 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 your grievances against the government None of these are prevented by wearing a mask. Even if a mask may make practicing some of these rights more difficult, say speaking, our Constitution allows even protected rights to be restricted for the benefit of the greater good. The great benefit to our community of wearing masks to limit the spread of COVID-19, which was supported by scientific research, outweighed any small infringement on our liberties.
The second question is, if a right is restricted, whether the benefit of the restriction to society outweighs the inconvenience to the individual. 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 resulting from restricting a right, and the courts should not second-guess them.
A notable exception to this was the Supreme Court’s decision in South Bay United Pentecostal Church v. Newson, which struck down California’s ban on in-person church services. The decision is interesting, 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- 19. 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 at church services was justified, but that an outright ban on assembling 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.”
Our Constitution only restricts what governments can do—not private citizens or businesses. In most instances, they can do whatever they want, and are restrained only by market forces or laws which specifically prohibit certain activities. 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.
Although the Government cannot require vaccinations, private businesses can refuse to hire or serve people who are not vaccinated. This was illustrated in the decision of Bridges v. Houston Methodist Hospital, 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, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration.”
We are fortunate to live in a country where our rights are protected, but so are our health and safety. The law enforces those goals, and supports the difficult decisions lawmakers, businesses, and individuals have to make to keep us free, safe, and healthy.