Does Ohio have the constitutional right to ban mass gatherings?


By Todd DeFeo - The Center Square



COLUMBUS — Ohio has banned mass gatherings of more than 100 people to slow the spread of COVID-19, prompting the question about the constitutionality of such a ban.

In Ohio, the short answer is it seems authorities are operating within their power to curb mass gatherings.

“States have broad power to protect the health, safety, and welfare of their citizens in ways that do not conflict with the Constitution – this is often referred to as the ‘police power,’” Andrew Geronimo, a supervising attorney at the Milton A. Kramer Law Clinic Center at Case Western Reserve University School of Law, told The Center Square in an email. “For example, in 1905, the Supreme Court held that Massachusetts’s mandatory vaccination law was a valid exercise of the state’s police power to prevent the spread of smallpox.

“Under Ohio law, the Director of the Department of Health has the power to declare health emergencies and ‘make special orders’ to prevent the spread of disease,” Geronimo added. “Dr. Acton used that authority to declare a health emergency and then to issue the orders to prohibit large gatherings and prohibit on-site dining,” he said, referring to Ohio Department of Health Director Dr. Amy Acton. “The City of Cleveland issued similar restrictions during the Spanish Flu outbreak of 1918.”

However, the move in Ohio and similar actions by leaders in other states prompted Citizens for Free Speech (CFFS) to call on local, state and national officials to keep the First Amendment in mind when issuing any orders to make sure they don’t conflict with the protections enumerated in the U.S. Constitution’s Bill of Rights.

“Using local police officers to enforce state-ordered bans on the right of people to assemble is definitely not Martial Law, but it has the appearance of it with local police substituting for the military,” CFFS Executive Director Patrick Wood said in a statement. “We believe governors and mayors should take a step back from such extreme policies.”

In addition to banning mass gatherings, Gov. Mike DeWine has ordered all restaurants and bars to close. A survey from WalletHub found Ohio ranked No. 12 in a list of states taking the most aggressive measures to limit the outbreak; Rhode Island topped the list, while Wyoming ranked last.

On Monday, Acton ordered polls to close, and the state delayed Tuesday’s primary election to June 2. That decision has prompted legal action.

However, when it comes to the right of assembly, the government needs to walk a tightrope to make sure its restrictions are applied evenly.

“While people have certain rights that would ordinarily invalidate some of these restrictions — for example, people have First Amendment rights to assemble, express themselves, and exercise their religious beliefs — those rights can be curtailed if the government’s action is necessary to achieve a compelling governmental interest,” Geronimo said.

“In this situation, given the conditions we’ve seen in other parts of the world, Ohio’s restrictions are likely constitutional,” unless applied disparately because of a particular viewpoint, Geronimo added.

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By Todd DeFeo

The Center Square

Todd DeFeo is a contributor to The Center Square

Todd DeFeo is a contributor to The Center Square