Constitutionality of more restrictive bans on assembly

Question

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.

2. 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.

Commonwealth of Virginia, Executive Order Number 55, effective March 30

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?

Answer 1

There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity.

Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order.