Throughout 2020, elected officials and public health departments issued a variety of emergency orders to stop or slow the spread of the COVID-19 virus. These orders included stay at home orders, business closures, and capacity limitations. Unfortunately, these measures abridged personal liberties and damaged-even destroyed-businesses and livelihoods. Many courts allowed these orders to stand because they were issued on an emergency basis and the conditions warranted swift action. However, we are now in the second year of the pandemic, have a better understanding of the virus, and a universally available vaccine. Will courts continue to defer to elected officials when their shutdown orders compromise our constitutional rights?

Read our legal analysis of year two of the pandemic by clicking here.

Throughout the public health crisis, courts have signaled that deference has an expiration date. In Calvary Chapel Dayton v. Sisolak, Justice Samuel Alito acknowledged in his dissent that elected officials understandably reacted quickly and decisively in the early days of the pandemic because they lacked the time to craft more tailored rules to slow the spread of the disease. “Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions,” he wrote. However, he continued:

[A] public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.[1]

A turning point came on Thanksgiving Eve 2020, when the U.S. Supreme Court  struck down New York Governor Andrew Cuomo’s occupancy limits on religious services.[2] In that case, Justice Neil Gorsuch used his concurring opinion to draw a line in the sand, cautioning, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”[3]

Sixteen months after “two weeks to flatten the curve,” we have a much better understanding of how the disease spreads and who is most vulnerable. We also have a new weapon at our disposal: universally available vaccines administered free of charge. As we move through the pandemic’s second year, courts will not be so reluctant to apply non-emergency standards to restrictions that interfere with constitutional rights. As Justice Gorsuch warned, “[W]e may not shelter in place when the Constitution is under attack. Things never go well when we do.”[4]


[1]Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2604–05, 207 L. Ed. 2d 1129 (2020) (Alito, J., dissenting).

[2]Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66, 208 L. Ed. 2d 206 (2020)

[3]Id. at 70. (Gorsuch, J. concurring).

[4]Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 71.(2020) (Gorsuch, J. concurring).