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Houston Matters

How The Constitution Gets Tested In Times Of Crisis, Like A Pandemic

Law professor Charles “Rocky” Rhodes explains how a crisis like the coronavirus outbreak affects our Constitutional rights.

The U.S. Supreme Court building at dusk on Capitol Hill in Washington.
The U.S. Supreme Court has issued numerous rulings over the years regarding how the government can curtail certain rights during emergencies.


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As the coronavirus pandemic began to unfold, local and state governments restricted certain aspects of life by shutting down non-essential businesses, limiting restaurants to delivery or carry-out only, and prohibiting large public gatherings.

All of this, of course, is being done in the interest of public safety, but some argue such measures violate some basic rights as expressed in the Constitution.

For example, we are granted the right to peacefully assemble under the First Amendment, but the government says we can't really do that right now. So, legally, what’s going on here? How does a crisis of this magnitude change how we look at Constitutional rights?

A Compelling Governmental Purpose

Charles "Rocky" Rhodes, a professor at South Texas College of Law Houston, told Houston Matters host Craig Cohen that the First Amendment can sometimes be overcome in situations where there is what’s known in the judicial circles as a “compelling governmental purpose.”

“And this is the highest order — the apex — of things the government does, things like winning a war, or preventing an imminent attack, protecting children,” Rhodes said. “And, of course, another one of these is protecting the public health from a pandemic."

Pandemics Aren’t New — Just New To Us

While this global situation is new to most Americans, pandemics used to be much more commonplace. The last one was the Spanish Flu outbreak in 1918, which resulted in our Constitution being tested by local and state regulations. And throughout our nation’s history the court has issued multiple rulings that have established legal precedent when it comes to distancing and quarantine methods.

One such case was Jacobson v. Massachusetts in 1905. A man named Henning Jacobson wanted to refuse a smallpox vaccine and maintained he had the legal right to do so.

However, the Supreme Court ruled in favor of the state, stating that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Practicing Religion In A Pandemic

Lucio Vasquez/Houston Public Media
Gov. Abbott exempted churches from the stay-at-home order.

As the coronavirus pandemic continues, some churches are using technology to adapt to the stay-at-home order. But others maintain that churches are an essential service and will not close their doors. Gov. Greg Abbott has exempted them from the stay-at-home order, but Harris County and others have banned such gatherings.

A case from 1944 established some legal precedent for such an issue. Prince v. Massachusetts maintained that the right to practice religion freely does not include the liberty to expose the community to communicable disease.

"As long as the government is treating all situations that present that risk the same, then that is not going to be a constitutional violation," Rhodes said.