No constitutional right to go mask-free

I keep hearing people say that they have a constitutional right not to wear a mask during the COVID-19 pandemic. They’re wrong.

Let me begin by saying that Broward County Commission members are doing everything we can to avoid shutting down the economy again. We know that if we close restaurants and businesses again, many will never re-open.

However, Broward’s percentage of positive COVID-19 tests continues to climb. Our ICU utilization percentage continues to grow. Our overall hospital available bed space continues to diminish. If we can’t turn these numbers around, we may shortly have no choice other than to renew the Stay at Home/Shelter-In-Place orders that we had several months ago.

Fortunately, we know how to fight the spread of COVID-19. Wear a face mask, social distance, and wash your hands with soap and water.

Wearing a mask when around others is critical. The CDC says this. The World Health Organization says this. Every major reputable study completed in the last three months — Johns Hopkins, Mayo Clinic, the Lancet — says this. A few earlier studies, before we understood COVID-19 as well as we do now, may have had conflicting or inconclusive results, but there is now clarity. It’s not that difficult.

If you want to fight the pandemic, and keep our economy going, wear your mask in public.

For reasons ranging from partisan politics to obstinacy, many people nonetheless refuse to wear masks. They claim a fictitious constitutional right not to wear masks. People have indicated that the Constitution guarantees the right to “Life, Liberty, and the pursuit of happiness.” Wrong document. That’s the Declaration of Independence.

Governments have extremely broad “police powers” to protect the public, especially during pandemics. As the U.S. Supreme Court said in Jacobson v Massachusetts, “[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.

“In every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

This principle was restated on May 29, when Chief Justice John Roberts wrote in South Bay United Pentecostal Church v. Newsom:

“When [state] officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’”

Some people have tried to find exceptions to this general principle by claiming that they have a religious right to not wear a mask. Wrong again. The same principles cited above apply here.

Florida has a religious protection law called the “Religious Freedom Restoration Act” that’s stronger than the U.S. Constitution in protecting religious freedom. However, as the Florida Supreme Court said in

Warner v. City of Boca Raton , “A plaintiff who claims that a governmental regulation constitutes a substantial burden must ‘prove that a governmental regulatory mechanism burdens the adherent’s practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates.’”

A substantial burden, the ruling continues, “must place more than an inconvenience on religious exercise; [it] is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.”

A requirement to wear a mask clearly doesn’t substantially burden any religious practice.

Some people object to wearing face masks based on the right to privacy guaranteed under the Florida Constitution. However, courts have held that this right applies only if someone has a “reasonable expectation of privacy.”

No one has an “expectation of privacy” about wearing a face mask in public or in business establishments. If there is any constitutional privacy protection, it would apply to being forced to remove masks, not to prevent people from wearing masks.

In short, there are no valid legal arguments that people have a right to not wear masks.

Don’t be selfish. Help protect the economy and your family, friends, and neighbors. Wear a mask.