Almost 10 weeks after Massachusetts Governor Charlie Baker shuttered non-essential businesses and organizations in response to the novel coronavirus pandemic, a group of business owners, pastors, and private school leaders have filed suit to lift the restrictions, arguing that the orders lack legal authority.

Michael P. DeGrandis of the New Civil Liberties Alliance represents the plaintiffs in the case, Dawn Desrosiers, et al. v. Governor Charles D. Baker.

In state and federal cases filed across the country, citizens groups and business leaders have argued with mixed success that various pandemic-related restrictions are unlawful.

State governments have broad, but not unlimited, police powers to deal with temporary emergencies, and courts are reluctant to second guess emergency measures designed to protect the public. But such deference is not without limits, particularly when state imposed emergency orders last longer than expected. 

Lawsuits challenging COVID restrictions tend to fall into three broad categories:  (1) due process/equal protection claims; (2) fundamental liberties claims; and (3) separations of powers claims.

(1)  Due process and equal protection claims — These cases typically challenge orders that apply to some businesses but not others. They argue that a state’s decisions as to which businesses to reopen are arbitrary or unfairly pick economic winners and losers.

Due process and equal protection claims face an uphill battle. When it comes to economic decisions, courts generally defer to the elected branches of government. To prevail on a federal equal protection claim, for example, plaintiffs must demonstrate that the state lacked a rational basis for its policy, an extremely high bar. In April, a federal judge in Ohio rejected a request by the owner of a bridal shop for a temporary injunction to stay the enforcement of that state’s pandemic restrictions. The judge said that allowing businesses a way to appeal individual closings simply isn’t practical.

(2) Fundamental liberties claims — These cases challenge restrictions that burden certain constitutionally protected rights, such as the right to bear arms, the right to worship, or the right to privacy. 

Courts more strictly scrutinize policies that burden fundamental rights than policies that regulate commerce. For example, in May, a federal judge in Massachusetts ruled that Governor Baker’s decision to close gun shops, along with other “nonessential” businesses, placed an improper burden on the right to bear arms, in violation of the Second Amendment. 

U.S. Attorney General Bill Barr has said the Justice Department may support challenges to state policies that make it more difficult for people to exercise fundamental rights. In a memo, the Attorney General expressed particular concern about restrictions that infringe on freedom of religion and freedom of speech in violation of the First Amendment.

Nevertheless, on Friday, a divided Supreme Court denied a request from a California church to temporarily enjoin enforcement of state restrictions on religious services. In a short opinion, Chief Justice John G. Roberts wrote that the church is unlikely to prove religious discrimination because the California policy treats houses of worship the same as other extended gatherings of large groups of people, such as concerts, plays, lectures, movies, and spectator sports. 

In dissent, Justice Brett M. Kavanaugh argued that California may not treat houses of worship worse than secular businesses, such as shopping malls, because the right to worship is a fundamental right protected by the First Amendment.

(3) Separation of powers claims — These claims challenge the authority of a governor or state agency to act without an express delegation of power from the legislature.  Separation of powers claims are, essentially, claims that restrictions were enacted improperly by the wrong branch of government.

Plaintiffs in the Massachusetts case filed this week argue that, while Massachusetts law empowers Baker to enact emergency measures in the case of foreign invasions, armed insurrections, and civil unrest associated with natural disasters, it grants him no such power in a public health emergency. The legislature could grant the governor power to enact emergency measures during a pandemic, plaintiffs argue, but it has not done so, and Baker’s orders are therefore unlawful.

Some experts believe that the separation-of-powers challenges are more likely to succeed than other challenges to state restrictions. And, indeed, the Wisconsin Supreme Court recently struck down a stay-at-home order on just such grounds, holding that the state Health Secretary Andrea Palm failed to follow proper rule-making procedures and exceeded her authority in issuing various shut-down and stay-at-home restrictions.

But, in a challenge similar to the one brought in Massachusetts, the Pennsylvania Supreme Court recently suggested that a serious threat to human life caused by pandemic counts as a “natural disaster” under Pennsylvania state law.

Even where plaintiffs in separation of powers cases prevail, states generally are free to reimpose the restrictions, so long as they do so through proper legislative or rule-making procedures.  But doing so may be difficult in states where lockdown measures lack popular support.

At a bare minimum, the Massachusetts plaintiffs have put Governor Baker on notice that the public’s patience is wearing thin.