Chuck Hervas on Constitutional law and the COVID pandemic

Chuck Hervas on Constitutional law and the COVID pandemic



I realize everything seems controversial on social media and I’m sure this post will be viewed by many as controversial. I’m sharing my opinion, but it is an informed opinion based on a law degree and 37 years of practicing in the area of constitutional law. We are in the midst of a legitimate worldwide pandemic that has been declared an emergency on a national, state and local level. The US Constitution is a document that has survived these situations and the federal courts have longstanding precedent in dealing with individual rights. Government is granted considerable leeway in dealing with matters such as war or national emergencies. There is no question that individual liberties are sacrificed during a time of an emergency.



For instance, my first amendment rights to free speech and religious liberty are greatly restricted this very day. I cannot go to the Chicago lakefront and hold up a sign and I cannot attend my church this Sunday. In my lifetime this is extraordinary. It is important to note that the Constitution has not been set aside, but rather, is working to allow a compelling state interest to override (temporarily) my civil rights. The federal court would be intolerant of lawyers filing suits challenging the general authority of government to act in stemming the pandemic. All the hysteria of the government trampling on rights is overblown (yes, I said it). Yet, I understand and appreciate that folks are concerned since government does overreach and isn’t always fair. The last 50 years of free speech jurisprudence is a trend of striking down government restrictions in favor of free speech. That’s one example of consistent government overreach. I also preface my opinion by noting this is a temporary situation. If government overreaches after the pandemic, we should be concerned. But we are no where near that point.



There is an exception to all the above. If religion was singled out for different treatment during the pandemic, that would be a serious problem. The state must narrowly tailor its restrictions to not intentionally harm particular groups without significant justification. So, you cannot have a rule where movie theaters stay open but not churches unless you can prove that the difference between the two has a basis in fact. This is the very reason government acts with a broad brush during the pandemic crisis. Once they start to piecemeal the prohibited activities they wind up in court with every single interest group complaining. It is easier to simply ban all groups over a certain number to gather. Here is my point on prohibiting large gatherings in Church—there is no absolute first amendment right to gather under any circumstance! It isn’t a part of our constitutional jurisprudence. That said, there is a significant constitutional right to meet at church. It has not gone away and I seriously doubt it will.



I have litigated a number of religious freedom cases in federal court in my lifetime. If this pandemic resulted in the permanent loss of religious freedom I would be clamoring at the courthouse doors to get in and fight. I think we are seeing a temporary loss of liberties, and I am watching. I would encourage folks to be vigilant and understanding that prohibiting large gatherings which stop folks from attending church is not invalid under the current pandemic emergency.



PS—I am not part of the deep state and was not paid to write this.