My family has been dutifully practicing social distancing since . . . I don’t know, as I’ve lost all sense of time. We have home-made face masks for each of us. And we only leave home for essential errands (armed with masks and hand sanitizer) or to exercise on our sparsely-populated neighborhood streets. We gladly do these things in order to do our part to minimize the impact that COVID-19 has on our community.
But even those who believe, as I do, that COVID-19 poses a serious threat to our nation should still be able to admit that some government officials have enacted a host of seemingly arbitrary restrictions in response to the threat. Washington has banned all recreational fishing, notwithstanding that fishing is a relatively-safe outdoor activity that can be done alone. Michigan allows people to buy drywall, but not paint at Home Depot. And in Steamboat, Colorado, anyone who doesn’t wear a mask at the grocery store is subject to a $5,000 fine and 18 months in prison. Granted that masks are important, but don’t these penalties seem a bit stiff?
Perhaps the best examples of arbitrary government actions are the multiple governments who have sought to prohibit drive-in church services. In Mississippi, for example, churchgoers were fined $500 each for attending a drive-in service. Such church services seem to be the exact sort of activity that should be permitted during this crisis–churchgoing is vital to so many American families, and the drive-in nature of the services makes them a very low threat with respect to transmission of the virus.
Significantly, some courts have started to push back against restrictions on drive-in church services. Judge Justin Walker, a federal district court judge in Kentucky (who has been nominated to fill a vacancy on the D.C. Circuit), recently granted a temporary restraining order against the City of Louisville prohibiting it from enforcing its restriction on such services–which it had threatened to do even on Easter. Judge Walker explained that, even in an emergency, constitutional rights still exist. Among them is the freedom to worship as we choose. The brief history at the outset of this opinion does not even scratch the surface of religious liberty’s importance to our nation’s story, identity, and Constitution. But mindful of that importance, the Court believes there is a strong likelihood On Fire will prevail on the merits of its claim that Louisville may not ban its citizens from worshiping–or, in the relative safety of their cars, from worshiping together.
Overreaching government restrictions are not simply dumb. As Ramesh Ponnuru explains, they undermine the public’s confidence in the various lockdown measures required by the government–even those that are actually justified. And, as Ilya Shapiro (my husband) has put it:
More fundamentally, any regulations that don’t make common sense, that aren’t seen as reasonable by most people, are simply not going to be taken as legitimate, and they won’t be followed. The American people will decide what restrictions are reasonable, and for how long. Just like they decided when to shut down, they have “total authority” to decide when to reopen.
Government officials issuing these regulations would be wise to keep this in mind.