The COVID-19 pandemic’s vast disruptions to daily life — some voluntary, some government-mandated — have raised Americans’ consciousness about basic freedoms they took for granted before the outbreak, experts say, forcing citizens, policymakers and courts to wrestle anew with the perennial trade-off between collective safety and individual liberty.
“The impacts on civil liberties are the most significant we’ve ever experienced,” said James Hodge, director of the Center for Public Health Law and Policy at Arizona State University. “Government has engaged in every type of social distancing measures you can imagine responding to this pandemic in the United States. Many of them are not neatly balanced against what and how we actually think through these traditional norms.”
When the World Health Organization declared COVID-19 a global pandemic on March 11, 2020, the Trump administration and all 50 states followed with emergency declarations of their own, enacting extraordinary social distancing restrictions to slow the spread of the virus: mass stay-at-home orders, school and business closures, bans on large public gatherings, travel restrictions and mask-wearing requirements.
“Let me assure you: We’ve never seen anything like this ever in U.S. history,” Hodge said.
Assault on liberties seen
While officials and public health experts defended the restrictions as lifesaving measures, libertarians, conservatives and many ordinary Americans denounced them as an assault on civil liberties such as freedoms of assembly and worship.
Before long, the public health interventions became controversial and highly politicized, pitting then-President Donald Trump and his Republican allies against Democratic governors and mayors and driving a new wedge into the national discourse.
Governors take different tacks
Citing the pandemic’s devastating economic toll, Republican governors such as Ron DeSantis of Florida and Kristi Noem of South Dakota pressed to reopen their state economies as quickly as possible while Democrats Gavin Newsom of California and Gretchen Whitmer of Michigan just as aggressively shut down their states. Wearing a mask or refusing to do so became as much a political statement as a pragmatic step to ward off the coronavirus.
But more important, the pandemic forced American courts to tackle a host of new constitutional questions about just how far the government — in this case, states — can go to limit individual liberties during an emergency. After initially giving states the benefit of the doubt during the first few months of the pandemic, judges began pushing back with rulings that have long-term implications for civil liberties and the government’s emergency powers. Freedom of religion took on new meaning, for example, when the Supreme Court ruled in November that New York state could not dictate the size of in-person religious services.
The decision paved the way for similar rulings by lower courts. In December, a federal appeals court, saying the Supreme Court decision represented a “seismic shift” in religious freedom law, ruled that Nevada’s attendance limit on indoor worship services — stricter than attendance caps at casinos and other establishments — was unconstitutional.
“It wasn’t until that [the New York] case that courts looked at this myriad of different legal challenges through a First Amendment lens,” said Ryan Tucker, a senior lawyer at Alliance Defending Freedom, a religious rights advocacy group that brought the Nevada case on behalf of a church and has filed a number of similar lawsuits around the country.
The New York and Nevada cases were among hundreds of lawsuits brought by American churches, gun rights groups, abortion rights advocates and other outfits challenging various public health measures during the pandemic.
While state and local governments have lifted most lockdowns and schools are beginning to resume in-class teaching, many social distancing measures remain in place and the battle over civil liberties that the pandemic sparked is far from over.
“There are still battles being fought,” Tucker said.
Police powers
The controversy over civil liberties during the pandemic stems from government authorities’ use of emergency powers.
In the United States, while the federal government wields enormous emergency authorities, the power to regulate public safety and health rests with state and local authorities. This is known as police power, and legal experts say it has expanded exponentially in recent decades as governors have acquired additional emergency authorities.
The COVID-19 outbreak led to a muscular use of these broad powers. All 50 state governors nearly simultaneously declared states of emergency, shutting down businesses and schools, imposing travel restrictions and implementing other social distancing measures.
To religious rights advocates and other critics, some of these restrictions were discriminatory and exceeded the governors’ authorities.
"We had many instances where governors, I think, were utilizing this — misusing, quite honestly, some of the leeway that the state legislature had given them,” Tucker said.
Accusing governors of overstepping the bounds of their authority during the pandemic, dozens of state legislatures, most controlled by the Republicans, have sought, with some success, to roll back their chief executives’ emergency powers.
But defenders said the emergency measures, as draconian as they may have struck some, were well within the government’s authority. The Supreme Court, going back to the early decades of America's founding, has recognized states' powers to impose quarantines and other public health measures, they note.
“The restrictions were, I think, generally constitutionally permissible, precisely because of the need to protect people’s lives against COVID, and courts upheld them,” said Eugene Volokh, a First Amendment law professor at the University of California-Los Angeles.
No blanket closures
In general, the measures did not involve governmental overreach, Volokh said. No blanket closures of businesses and schools were undertaken. Nor was a national lockdown or a ban on interstate travel imposed.
How courts will view stringent public health measures in the future “will depend on the nature of the illness, especially how it’s spread and how deadly it is,” Volokh wrote in an email.
While some conservatives have voiced concern that government-imposed restrictions could become the new normal, Volokh, a libertarian, said he doubts the measures, save some mask wearing in public, will outlast the pandemic.
“The restrictions have been so burdensome — economically as well as in terms of people’s freedom — [that] it’s quite unlikely that voters would tolerate them once the epidemic is over,” Volokh said.
