With state and local officials entering shelter in place orders, many parents feel they are being deprived of their constitutional rights to child custody. What are a parent’s constitutional rights during a global emergency? There’s also some good coronavirus information.
There is no instruction book for a pandemic
Happy belated Easter to everyone . . . except residents of Louisville, Kentucky! The home of Muhammad Ali, the Kentucky Derby, and Kentucky Fried Chicken is in the news. That’s because on Holy Thursday, Louisville’s mayor, Greg Fischer, criminalized the communal celebration of Easter.
Our nation faces a public health emergency caused by the exponential spread of COVID-19. This has led many state and local officials to order increasingly tighter restrictions to promote social distancing and prevent further spread of COVID-19.
Can the state go too far? One federal court thinks so. Last week Louisville’s mayor said, it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service. A Louisville church then filed an emergency motion in federal court to enjoin the mayor, and won.
The mayor noted that it’s not really practical or safe to accommodate drive-up church services taking place but drive-through liquor stores are A-OK!
Notwithstanding the exemptions of some drive-through places, on Holy Thursday, the Mayor threatened church members and pastors if they hold a drive-in Easter service.
The federal judge, noting American history on religious bigotry, said the pilgrims fled religious persecution, slave owners flogged slaves for attending prayer meetings, mobs drove the Latter-Day Saints to Utah; hatred against Catholics motivated the Blaine Amendment, and Harvard University created a quota system to limit Jewish students.
The judge then found the Mayor’s decision to be stunning and “beyond all reason,” unconstitutional.
Florida Child Custody and the Constitution
Like religions, the constitution protects parental rights too. I have written about the intersection of the constitution and marital law before. The United States Supreme Court has concluded that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.
Florida courts have long recognized this fundamental parental right. The basic proposition is that parents have a legal right to enjoy the custody, fellowship and companionship of their offspring. This is a rule older than the common law itself.
But the parents’ rights are not absolute, as the state has parens patriae authority to ensure that children receive reasonable medical treatment which is necessary for the preservation of life.
So, in Florida the ultimate welfare of the child itself is controlling. While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of harm, physical and emotional violence at the hands of parents and caretakers and for medical treatment necessary for the preservation of life.
Because Florida has a compelling interest in protecting all its citizens—especially its youth—against the clear threat of abuse, neglect and death, the constitutional rights can give way.
Kentucky Fried Liberty
Back in Louisville, the court found the city order was not “neutral” between religious and non-religious conduct because it targeted religious worship by prohibiting drive-in church services, but not drive-through liquor stores.
The court noted that the city was pursuing a compelling interest of the highest order through its efforts to contain the current pandemic, but its actions were not even close to being “narrowly tailored to advance that interest.
The court also found that the church was committed to practicing social distancing in accordance with CDC guidelines. Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.” Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.
There is no instruction book for a pandemic. The threat evolves. Experts reevaluate. And government officials make the best calls they can, based on the best information they have. You may not agree with the court’s reasons, but the judge saw his role to explain, to teach, and to persuade.
Good Coronavirus News
Speaking of the constitution, to stem the spread of COVID-19, many cities have passed executive orders requiring people to cover their mouth and nose when going out.
Face masks (surgical or homemade) are now being required in public, such as when going to drive-through liquor stores. But do homemade masks work? The science with different types of masks is not conclusive, but this graphic is good information anyway:
In theory, all masks may prevent some sprays of virus-laden fluids from entering your nose and mouth (inward protection). They are also a reminder not to touch your face. And, if you’re sick, they may help keep some aerosols inside (outward protection), to protect people around you.
The U.S. District Court order is here.