Virginia’s governor issued a ‘stay at home order’ that will be enforced by fines, and is in effect until June 10th, unless otherwise revoked. This includes the ban on groups of 10 or more.
- All public and private in-person gatherings of more than ten individuals are prohibited. This includes parties, celebrations, religious, or other social events, whether they occur indoor or outdoor. This restriction does not apply:
a. To the operation of businesses not required to close to the public under Executive Order 53; or
b. To the gathering of family members living in the same residence.
Violation of paragraphs 2, 3, 4, and 5 of this Order shall be a Class 1 misdemeanor pursuant to § 44-146.17 of the Code of Virginia.
I know Maryland and DC are implementing nearly identical orders, and most likely other states are also doing so, or considering doing so in the near future.
A pastor in Florida was arrested for holding religious services with more than 10 people, according to NBC Miami.
This seems to move much deeper into “strict scrutiny” territory for questioning the Constitutionality of these orders, for example under the First Amendment,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
which is applied to the states by the Fourteenth Amendment.
While orders lasting for a few weeks may be easy to call narrowly tailored, can the same be said for orders lasting months? And what about enforcement of these restrictions in communities that don’t even have any confirmed cases of the virus? Sure, it feels like it’s “everywhere” but for some states it’s still only in the major metropolitan areas, leaving a lot of small communities alone (so far). A state-wide ban lasting for months that so heavily affects both the rights of assembly and worship, with potential fines and arrests for violation, is at least clearly less narrowly tailored than the previous orders. Whether the circumstance they are trying to avoid is worth this or not will be a pretty tricky question.
On the other hand, we all know that none of this is likely to be litigated until after it’s all over, simply because most of the courts are also closed except for the most critical needs, so there’s no one to raise the question to. At best, we may see some fines or convictions overturned in the future, but nothing to stop the continuation of the orders right now. Is there a precedent of such circumstances?