A crisis like the COVID-19 pandemic certainly calls for Congress and states to protect the health and economic security of the American people. At the same time, it should not serve as an invitation to trample on our civil and religious liberties in the process.
The current debate over the COVID-19 response is a perfect example. In Congress, lawmakers have proposed sweeping changes to provide companies with immunity from legal liability for injuries and deaths related to COVID-19. Concurrently, states are banning gatherings over a certain number of people, with a particular focus on those worshiping at churches, synagogues and mosques, while allowing similar numbers of people in other locations.
These are both examples of dangerous government overreach — one in which Congress should play no role and the other where Congress has not done nearly enough.
Congress’ consideration of liability immunity for COVID-19 exposure claims makes little sense as out of the 8.3 million confirmed virus cases in the U.S. to date, only 0.001 percent have resulted in a death or injury lawsuit. Nor has there been any evidence of states being incapable of dealing with them. Most of these claims are brought in state court under state law. Legislators in several states have passed laws that would grant businesses coronavirus-related immunity. Putting aside the wisdom or necessity of such laws, in our federal system, it is certainly within each state’s power to enact them.
This naturally raises two questions: How is COVID-19 liability appropriately the business of Congress? And why should companies be empowered to unilaterally remove these cases from state to federal court?
The immunity proposal seeks to employ the Commerce Clause to displace state and local authority — something most conservatives view with caution. Federalizing state liability laws is no solution to the pandemic nor is it a wise use of federal power. The heavy hand of the federal government does not always know what is best, and in this instance, it upsets the careful balance between individual freedom, local authority and federal intervention.
However, there are coronavirus-related lawsuits that should concern Congress — namely, the requests for injunctive relief filed by places of worship that are unfairly being closed while select private enterprises are allowed to reopen. As states trample on Americans’ First Amendment rights to freely assemble and practice their faith, federal government intervention is appropriate and necessary.
The U.S. Supreme Court this summer, by a 5-4 vote, refused to grant relief to Calvary Chapel Dayton Valley in Nevada after it sought to overturn the state’s then 50-person cap on churches.
Such a measure could be viewed as appropriate to stop the spread of COVID-19. However, at the same time, Nevada was allowing casinos and movie theaters to operate at 50 percent capacity — with potentially hundreds of people in close quarters. In his one-paragraph dissent, Justice Neil Gorsuch pointed out the absurdity of a 50-person cap on churches, regardless of their size and protective measures taken, while a Las Vegas casino was permitted to have six people around a craps table. He concluded, “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Lawsuits have been filed all over the country to put an end to this arbitrary and insidious attack on religious assembly. Yet members of Congress have been focused on phantom COVID-19 exposure claims instead of real lawsuits that are seeking to protect our civil liberties and religious freedoms.
Congress should not eliminate people’s legal rights. Rather, it should do more to protect our constitutionally guaranteed freedoms when there are problems of national significance worth solving.
Ken Starr is a former federal judge, solicitor general and independent counsel. He is currently of counsel to the Lanier Law Firm.