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'We're Going To Be Sacrificing Some Of Them At This Time': Constitutional Rights And COVID-19

Michael Wolff, at left, and Dave Roland joined the talk show on Wednesday.
St. Louis Public Radio & Dave Roland

All those hypothetical questions we love to debate around issues of privacy, freedom and other civil rights? Many of them feel a lot less theoretical these days.

The spread of coronavirus — and restrictions placed by the government on the public and private sectors in response — has given these questions a greater sense of urgency.

On Wednesday, St. Louis on the Air convened a conversation focused on COVID-19’s implications for government power and its limits as expressed in the U.S.’ founding documents.

Joining host Sarah Fenske for a lively discussion on a range of topics were Dave Roland, director of litigation for the Freedom Center of Missouri, and Michael Wolff, the former chief justice of the Missouri Supreme Court.

Wolff, who is also dean emeritus of the St. Louis University School of Law, started by outlining what gives the government the right to close businesses, restrict travel and limit other everyday activities and freedoms in an emergency such as a pandemic or war.

“The government’s gonna do what the government’s gonna do, and we’ll find out later, maybe years later, whether it was constitutional,” he said, adding that not everything that the government does in a public health crisis is likely to be constitutional.

“Everything we do before a pandemic will seem alarmist. Afterwards, everything we have done may seem inadequate, so there we are,” Wolff noted. “And the law tries to fit itself into that, and we have principles that we need to remember. We need libertarians, conservatives and liberals to remember our values, because we’re going to be sacrificing some of them in this time.”

Roland noted that “just because the government can do things in the short term, I don’t want anyone to go away with the impression that there will be no consequences for governmental overreach.”

“So for example,” he said, “if a court later determines that a policy that the government put in place was improper, there may be damages or rather financial consequences as a result of that overreach. There could be forward-looking injunctions that could prevent future overreach in similar situations.”

The conversation touched on several specific constitutional concerns, including postponed elections and First Amendment issues among others.

John Inazu, the Sally D. Danforth distinguished professor of law and religion at Washington University, weighed in on where religious freedom plays into all of this. He recently penned a piece for the Atlantic titled “Close the Churches.”

“Sunday-morning worship is a key part of my week, but I also think that it’s important for Christians and others right now to be thinking about love of neighbor,” Inazu said in a conversation recorded in advance of the live broadcast. “And probably the best, most tangible way that we can show that is by not gathering in person right now until circumstances change.”

Inazu added that his sense is that the government is well within bounds with the current orders in place prohibiting church gatherings.

“This is, at this point, a matter of policy discretion,” he said. “A shutdown order does not need to include churches in it, but if it does, then churches are almost certainly required to comply with that order. And the reason is that the government can always articulate a set of interests that are going to limit any constitutional right, and religious liberty is no different than any other right in that instance.

“You’re not going to have a religious group that can engage in human sacrifice or that can use cocaine in its services. … The question is, how compelling and how carefully tailored is the government restriction. And in this case, it seems like these shutdown orders are both extremely compelling, extremely urgent and well crafted to fulfill the government’s desired need.”

Roland said he disagrees, citing a recent Florida incident in which the pastor of a congregation was arrested after leading a large gathering with some social distancing practices in place.

“A family group could sit together, but then they had to have six feet separation between them and any other family group that attended,” Roland explained. “So they in fact were taking measures to socially distance to be responsible in the way they were meeting while still exercising their free exercise of religion. And so I actually think where you’ve got a law that prohibits a gathering even where they are abiding by the general rules of social distancing, I think you have a law that is not narrowly tailored to justify the restriction.”

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill, Lara Hamdan and Joshua Phelps. The engineer is Aaron Doerr, and production assistance is provided by Charlie McDonald.

Send questions and comments about this story to feedback@stlpublicradio.org.

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Evie was a producer for "St. Louis on the Air" at St. Louis Public Radio.