Litigation Challenging Mandatory Stay at Home and Other Social Distancing Measures

Nearly all states adopted some form of social distancing measures during the last couple of months in response to the coronavirus pandemic.

These measures are the primary means of controlling the spread of a highly communicable virus and avoiding health care system overload by limiting close contact between people in the absence of a vaccine or curative treatment. While there has been broad public support of strict stay at home orders and other social distancing measures to protect public health, there also have been protests alleging these measures impermissibly restrict individual rights in Wisconsin, Michigan, California, and elsewhere, and lawsuits challenging them filed in a number of states.

Map accurate as of June 1 – For updated information, see tracker here.

This issue brief explains the legal basis for stay at home orders and provides an overview of current legal challenges filed in state and federal courts. Historically, the government’s authority to impose measures that temporarily restrict individual rights during emergencies has been recognized as necessary to protect public health, even when those measures limit rights protected by the Constitution that Americans hold important, such as the rights to free speech, peaceful assembly, interstate travel, and free exercise of religion. Although the Wisconsin Supreme Court’s decision striking down nearly all of that state’s stay at home order, based on its interpretation of state law, received recent media attention, most courts to date generally have allowed stay at home orders to remain in place. While some of the specific issues in current lawsuits could become moot as states start to re-open, the general issue about the scope of government authority to limit individual rights in a public health crisis is likely to return to the courts as states re-institute stay at home orders during future COVID-19 outbreaks in the coming months.

What is the legal basis for stay at home orders?

Mandatory social distancing measures during public health emergencies, such as stay at home orders, are based on states’ general authority to protect the general health, safety, morals, and welfare, known as the police power. The police power is a very broad power through which governments regulate individual rights to protect the interests of society as a whole. Common examples of the police power are safety regulations to reduce fire hazard, zoning laws that regulate land use, and laws prohibiting gambling or prostitution. Examples of social distancing measures adopted under the police power in the current coronavirus pandemic include mandatory stay at home orders, mandatory traveler quarantines, closures of non-essential businesses, bans on large gatherings, school closures, and limits on bars and restaurants and other public places.

Because social distancing measures are adopted under states’ police power, there is state variation in the onset of social distancing measures, the specific measures adopted, and their duration. The police power is the main power possessed by state governments. The federal government has limited powers that are specially enumerated in the Constitution. All remaining government powers, including the general police power, are vested in the states under the 10th Amendment.

The U.S. Supreme Court’s recognition of state use of the police power to regulate individual rights in the interest of protecting public health dates back to 1905. In Jacobson v. Massachusetts, the Court upheld a government requirement for smallpox vaccination when that virus was spreading. The Court set out the legal test, still applied today, which provides that a state’s exercise of the police power to promote public safety during a public health emergency will be upheld unless the order has no real or substantial relation to public health or the measure beyond all question is a plain palpable invasion of fundamental rights.

In upholding the smallpox vaccination requirement, the Court emphasized that a free society requires some restrictions on individual rights to protect public health and safety and promote general social order. The Court noted that, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Rather than being absolute in all circumstances, individual constitutional rights are subject to “manifold restraints to which every person is necessarily subject for the common good.” This balance is necessary because: “Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”

How have courts decided lawsuits challenging stay at home orders issued in response to the COVID-19 pandemic to date?

Most courts to date generally have allowed stay at home orders issued during the current crisis to remain in place to protect public health, despite restrictions on individual rights such as free speech, peaceful assembly, travel, and free exercise of religion. Some courts also have been asked to decide disputes between state legislatures and Governors about the exercise of government power to issue these orders. Selected cases are described below and summarized in Table 1.

Free speech, peaceful assembly, and economic harm

In a case that reached a final decision on the merits, Friends of Danny Devito v. Wolf, the Pennsylvania State Supreme Court upheld the Governor’s closure of physical operations of all non-life-sustaining businesses to reduce coronavirus spread. The Governor’s order was challenged by a realtor, a golf course owner, and a candidate for the state legislature (no relation to the famous actor), who alleged that the order violated their rights to free speech, free assembly, and due process. The Pennsylvania state court found the order to be reasonably necessary to meet the current public health emergency, which involves a virus that spreads “exponentially” and where enforcement of social distancing is currently the only mitigating tool. In this context, the court noted that temporary business closure is not unduly oppressive when faced with protecting the lives and health of all state citizens. The court also observed that the power to enact laws to promote the general welfare is one of the most essential government powers and its “least limitable.” In early May 2020, the U.S. Supreme Court denied the business owners’ application for a stay, allowing the Governor’s order to remain in effect while the business owners ask the Supreme Court to review the case.

Other courts have allowed stay at home measures to remain in place while lawsuits are pending. A California federal district court denied a temporary restraining order in a case brought by a gun shop owner and political candidate who sought to hold public protests and rallies at the state capital, deferring to state officials’ “informed efforts to protect all citizens especially the most vulnerable against a deadly pandemic.” Another federal district court denied a request to block Maryland’s stay at home order in a lawsuit brought by a number of plaintiffs, including members of the state legislature who wanted to attend political rallies and businesses that had lost substantial money because they were deemed non-essential and forced to close. The Maryland court found that, “The executive orders at issue have a ‘real or substantial relation’ to the public health crisis.” The Maryland plaintiffs have appealed that decision to the 4th Circuit Court of Appeals. Other federal lawsuits have been brought by abortion protestors, after they were arrested for violating stay at home orders in North Carolina and Michigan; neither case resulted in a decision on the merits because the orders expired or were amended, making them moot.

Travel Restrictions

A Michigan state court refused to issue a preliminary injunction in a case challenging the scope of the Governor’s stay at home order. The plaintiffs, five Michigan residents, claimed that the intrastate travel restrictions violated their right to procedural due process. The court found that while the order severely restricted individual constitutional rights, the restrictions were reasonable in light of the current public health crisis. The court also emphasized the temporary nature of the restrictions, compared to the “all too permanent” impact on “those who contract the virus and cannot recover and their family and friends.” In contrast, a Kentucky federal court struck down a provision in the Governor’s order requiring individuals to self-quarantine for 14 days after entering the state in a case brought by state residents who wanted to travel freely in and out of state. The Kentucky court found that the requirement was not narrowly tailored to achieve the government’s purpose because it applied to an individual visiting a friend eight miles away in Ohio, but not if the visit occurred eight miles away within Kentucky.

Free exercise of religion

One of the most politically charged provisions of the stay at home orders has been restrictions on public gatherings as they apply to religious worship. There have been multiple examples from around the world of religious services acting as super-spreader events for COVID-19. Federal appeals courts have split on the issue of whether social distancing orders should be lifted or remain in place while lawsuits alleging violations of the free exercise of religion are pending. In the two religious cases seeking U.S. Supreme Court review to date, the Court has allowed social distancing orders to remain in place while the appeals are pending. In the litigation challenging restrictions on in-person religious services, the churches and other houses of worship contend that religious services are being singled out and not being treated equally with other business operations. As states begin to re-open, some lawsuits are alleging that churches should be included in earlier rather than later re-opening phases.

On May 22nd, President Trump declared places of worship “essential” operations that should hold services in person regardless of state orders. While the President lacks the authority to override state orders, many states are starting to open up and allow some in person religious services. The CDC issued specific guidelines for faith based worship services, which it later amended to emphasize religious rights (Box 1). The amended CDC guidelines now provide that faith based organizations should be treated the same as similarly situated entities. The factual question is what kind of business is the correct comparison for religious services: movie theaters, live concerts, grocery stores or office buildings. In a concurring opinion, denying the request from a California church to allow churches to be treated like other businesses allowed to open, Chief Justice Roberts noted that, “Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” In his dissent Justice Kavanaugh asserted, “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.”

Box 1: CDC Guidelines for Faith Based Organizations

While states and counties have the authority to establish their own stay at home orders, many states have looked to the federal government for guidance.  The Centers for Disease Control Interim Guidance for Communities of Faith stated: “consider suspending or at least decreasing use of a choir/musical ensembles and congregant singing, chanting, or reciting during services or other programming, if appropriate within the faith tradition…. The act of singing may contribute to transmission of Covid-19, possibly through emission of aerosols.” CDC also recommended that religious groups “consider temporarily limiting the sharing of frequently touched objects that cannot be easily cleaned between persons, such as worship aids, prayer rugs, prayer books, hymnals, religious texts and other bulletins, books, shared cups, or other items received, passed or shared among congregants as part of services.” As of May 23rd this part of the guidelines has been removed and new language was added: “This guidance is not intended to infringe on rights protected by the First Amendment to the U.S. Constitution or any other federal law, including the Religious Freedom Restoration Act of 1993 (RFRA). The federal government may not prescribe standards for interactions of faith communities in houses of worship, and in accordance with the First Amendment, no faith community should be asked to adopt any mitigation strategies that are more stringent than the mitigation strategies asked of similarly situated entities or activities” On May 19th, the Trump Administration Department of Justice sent a letter to California’s Governor Newsom, warning him that they believe the Constitution calls for California to do more to accommodate religious worship, by including worship in stage 2 of the reopening plan.

In two cases appealed from the 9th and 7th Circuit Court of Appeals, the Supreme Court denied requests brought by churches in California and Illinois to block state stay at home orders while the appeals are pending. The California church contended the Governor’s decision to place churches in Stage 3 instead of Stage 2 of the state reopening plan violates their right to free exercise of religion. The 9th Circuit upheld a California federal district court’s denial of a temporary restraining order. The court stated:

“Where state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment. We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a ‘[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’ “

In a 5-4 vote the Supreme Court denied the California church’s request for an emergency stay of the state’s restriction on worship services. In a concurring opinion, Chief Justice Roberts emphasized that the Constitution delegated the decisions to keep states safe to local politicians: “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement” but entrusted by the Constitution to politically accountable  elected officials of the state.

Like the California church, the Illinois church contended that the state’s reopening plan imposed unique limits on religious worship services that are not imposed on other businesses. After the Illinois church appealed the 7th Circuit decision allowing the social distancing measures to stay in place, the Illinois Department of Public Health issued new guidelines allowing in-person worship services, with recommendations for maximum capacity and social distancing. The Supreme Court denied the request for a stay from the IL church because the new guidelines made the request for a stay moot.

Similarly, in a case brought in state court by 10 churches alleging violation of their religious rights, the Oregon State Supreme Court stayed a temporary restraining order issued by a lower state court. The Oregon State Supreme Court is expected to rule on the merits of the case soon.

Other federal district courts in California and New Mexico also have denied requests for temporary restraining orders in cases challenging state social distancing orders brought by churches. These courts found that the orders did not violate the right to free exercise of religion because the orders are neutral, generally applicable, and related to addressing the pandemic. For example, the California federal district court noted that while the order temporarily burdens individual rights to a greater degree than normally permissible, the right to free exercise of religion does not include the liberty to expose the community to a communicable disease. The New Mexico district court observed that when the state faces a major public health threat, its police powers are at a maximum.

In contrast to the above decisions, the 5th and 6th Circuit Courts of Appeals have lifted bans on public gatherings in cases alleging infringement on the right to free exercise of religion. The 5th Circuit Court of Appeals enjoined enforcement  of the City of Holy Spring, Mississippi’s stay at home order, while the district court decides the merits of the case. The case was brought by a church alleging that the city’s designation of churches as “nonessential” violates the rights to free exercise of religion and free speech. The church did provide assurances that it will satisfy the “requirements entitling similarly situated businesses and operation to reopen.”  In two related cases in Kentucky, the 6th Circuit Court of Appeals held that the public gathering limitations violated the plaintiffs’ right to free exercise of religion under KY’s Religious Freedom and Restoration Act and the First Amendment. In the case brought by Maryville Baptist Church, while the 6th Circuit allowed the plaintiffs to hold drive-in services, the district court subsequently allowed in-person services that abide by social distancing requirements. Similarly, a North Carolina federal district court issued a temporary restraining order in a challenge brought by a church, stating, “There is no pandemic exception to the Constitution of the United States or the Free Exercise of the First Amendment.” The plaintiffs later voluntarily dismissed their case after the Governor issued a new executive order exempting all religious and spiritual gatherings from the public gathering limitations.

Conflicts Between State Legislatures and Governors

In cases disputing the scope of authority of the executive branch vs. the legislature under state law to impose social distancing measures, the Wisconsin State Supreme Court lifted nearly all of the state public health secretary’s stay at home order, while the Kansas State Supreme Court upheld the Governor’s order. While these cases each turn on specific provisions of state law, they also speak to the larger policy and political debate about the extent of executive authority to limit individual rights during a public health crisis. The Wisconsin decision is the only case thus far to lift nearly all provisions of a stay at home order. The case was brought by the state legislature, contesting the state public health secretary’s authority to issue an extended stay at home order without going through an administrative rule making process. While most courts have emphasized that stay at home orders serve to protect people during a public health emergency, the Wisconsin state court in a four to three decision instead highlighted the importance of the administrative rulemaking process to “safeguard all people” (Box 2). The Kansas Supreme Court allowed the Governor’s executive order limiting religious gatherings to 10 people to remain in place, finding that a seven member Legislative Coordinating Council does not have the power to overrule the Governor. The Governor brought suit after the Council voted to revoke her order. Both of these cases involved opposing political parties in control of different branches of state government.

Box 2: The Wisconsin Supreme Court Decision

In a challenge brought by the state legislature, the Wisconsin Supreme Court, in a four to three decision, found the stay at home order invalid because the public health secretary failed to use the emergency administrative rule-making process. Quoting the Trump Administration’s statement of interest filed in a support of a case brought by a church in Mississippi, the court stated, “there is no pandemic exception . . .  to the fundamental liberties the Constitution safeguards.” Without following the administrative rule-making process, according to the court, there are no limits on the secretary’s power. The dissenting judges pointed out that the emergency rule-making process in state law is “inconsistent with the prompt and decisive action needed to control and suppress a deadly communicable disease.” According to the dissent, the emergency rulemaking process involves 11 to 13 steps that take 18 to 49 days, after which a legislative committee can suspend the emergency rule, requiring the secretary to start over. Additionally, emergency rules cannot be changed without going through another rulemaking. In the dissent’s view, state law allowed the secretary to issue an order without rule-making that applies to a temporary specific factual circumstance such as the control and suppression of a particular communicable disease. The secretary’s power is appropriately limited because individuals who believe they are harmed by such an order could bring a constitutional challenge. The Wisconsin decision resulted in confusion about when it took effect and which restrictions if any were in place in the meantime. The legislature had asked for the court’s decision to be stayed to allow for time to transition to another, less restrictive, stay at home order, but the majority decision did not grant a stay. However, the chief justice who wrote the majority decision also wrote a separate concurring decision, acknowledging the stay request and raising uncertainty about her vote. In the aftermath of the court’s decision, some taverns were planning to reopen, while some local city and county governments planned to issue their own stay-at-home orders. After the state Supreme Court’s order, public health officers for Milwaukee, Appleton and other counties put in place their own orders. Seventeen individuals including a pastor, a restaurant owner and a candidate for the state Assembly are now challenging these local orders in federal court.

Following the Wisconsin decision, the Republican controlled Michigan state legislature sued the Democratic Governor challenging her stay at home order. The Michigan state district court found that the Governor does have the authority to issue stay at home orders under state law. The Legislature has appealed this decision and is seeking emergency-bypass review by the state Supreme Court. In another case, Republican members of the Illinois House of Representatives are challenging the Democratic Governor’s stay at home orders alleging the Governor has exceeded the his authority under the state Emergency Management Agency Act. The plaintiffs filed the case in state court, but the Governor filed the paperwork to move the case to federal court. The plaintiffs are contesting the move to federal court. The Trump Administration issued a statement of interest in the case, supporting the plaintiffs’ position to keep the case in state court.

Looking Ahead

Adoption of social distancing measures continues to be a subject of policy as well as political debate. Courts generally have upheld these measures in the interest of protecting public health during emergencies, despite acknowledging the restriction on individual rights, in cases brought by individuals and groups seeking to fully exercise those rights. Three cases to date have asked for Supreme Court review. The Supreme Court has denied stays in all three cases in which plaintiffs have appealed to block state stay at home orders.  Other cases are pending review at district courts and courts of appeals. While state and local actions to open up might make some of the current litigation moot, states may decide to re-instate some of these orders if there are new flares in COVID-19 over the coming year, and we can expect similar legal challenges.

As states recently have begun to roll back some social distancing measures, public opinion on these changes also differs somewhat by political party affiliation. According to the May 2020 KFF Health Tracking Poll, about half of adults – across political party identification – say they think their state is moving at the right speed in easing restrictions. However, more than three times as many Republicans (32%) as Democrats (9%) say their state is opening “too slowly,” and one-fifth (22%) of independents say the same. Four in ten Democrats (39%) say their state is opening “too quickly” compared to 28% of independents and 13% of Republicans. States’ scattershot approach to adopting stay-at-home orders raised concerns about ongoing community transmission in the U.S., while recent movements by some states to ease restrictions similarly raise concerns about new outbreaks. In the coming months and years, many policymakers and other stakeholders will be studying the economic and public health consequences that resulted from varying state approaches to balancing public health vs. individual rights and weighing the effects on the economy.