November 24, 2021 | Camille Golowski
Edited by John Ellis
In light of the COVID-19 pandemic, government officials at the local, state and national levels have struggled to distinguish a proper balance between allowing for individuals to practice their First Amendment rights and protecting the health and well-being of society as a whole. Creating and enforcing infection-control mandates such as masking, social distancing and lockdowns has been at the forefront of every government decision. However, imposing such measures does not come without backlash from libertarianists. Around the world, we have seen numerous instances of public outcry against impositions on individual liberties, particularly in the freedom to assemble for religious practice or protest. This gives cause to take a step back and consider the proper approach to maintaining individual constitutional rights, while not jeopardizing the safety of citizens during a public health crisis.
Proponents who support healthy safety even at the jeopardy of civil rights say that the exercise of public health powers “must be balanced with the actual or potential impact on individual civil liberties and other health and economic harms that may occur.” In weighing the risk that public gatherings cause, it is clear they are a hotbed for the spread of infectious disease: many people gathered together, potentially in a confined space, speaking and interacting with one another in proximal distance. Thus, according to the World Health Organization, it is unreasonable to assume that zero risk and harm will be imposed by partaking in a mass gathering during a pandemic such as COVID-19. Given this information, we can reasonably assume that all participants at a political or religious assembly would have a greater risk of contracting, carrying and spreading the virus. Given the rates of hospitalization and even death which have occurred as a result of COVID-19, this creates a substantial risk for the individuals themselves, their families and the greater community they will interact with following their participation in a gathering. In times of public health danger such as this, many view any personal actions taken which could put others at risk as ultimately selfish and unnecessary. According to Deputy Secretary-General of the United Nations, Amina Mohammed, “Only by working together can we recover better and build a world where everyone thrives in peace, dignity, and equality on a healthy planet. It is possible, together.” The pandemic will certainly not stop itself. Citizens must be in agreement with each other and in accordance with their nation’s government, so as to best prioritize the health of all members of each nation across the globe.
This is not without contention of course. Individuals across the world have identified the slippery slope that occurs when people are asked to sacrifice rights they have always known and practiced in order to fight against a greater risk. Certainly, some of the opponents to the public health priority may not believe in the extent of the risk of the pandemic. Others, however, who can appreciate the concerns over the spread of disease, remain steadfast in their opinion that no circumstance should allow for the government to retract the liberties which our countries were built upon and which we have always known. Libertarianists believe that to do this would be to erase and rewrite the history which many have fought so hard for and would give governments immoral power to limit personal rights whenever they feel that circumstances call for it. In doing so during the pandemic, some individuals believe this will give government officials precedent to believe this is acceptable in lesser situations in the future.
This begs the question: Are certain activities that increase the risk of transmission more justifiable? Specifically regarding the First Amendment right of freedom to assemble, amidst the COVID-19 pandemic, assembly for religious celebration, assembly for mourning and assembly for protest have been the most common. Uproar erupted when, at the height of the pandemic, countries across the world had severely restricted gatherings for the sake of communal prayer, but no restrictions had been placed on public demonstrations of freedom such as protest. Numerous countries pointed to indoors versus outdoors as a reason for these measures; however, when Saudi Arabia banned the Muslim Hajj ceremonies by denying entry to foreign voyagers, this was certainly not the case for restrictions placed in every country.
This political debate also raised concern in the US Supreme Court in August of 2020, however they ultimately allowed for the continuation of political protest and demonstration. Among the main justifications for the ruling was Justice Uzi Fogelman’s assertion that “the inconvenience to the residents is a kind of ‘necessary evil’ so that the right to demonstrate can be upheld.” It is important to note, however, that a statement was released by Supreme Court Justice Ayala Procaccia in 2004 which stated that, “The right to demonstrate and to protest is indeed based on the right to freedom of expression, and it is one of the lofty manifestations of the idea of human freedom and dignity…. However, the right to express protest is not an absolute right. It is subordinate, first and foremost, to the duty to obey the law and to act within its framework.” This qualification seemed to give the US Supreme Court leeway to revoke these rights at any time given extraordinary circumstances that would cause individual liberties to keep an individual from abiding by the law, such as if legal restrictions were placed on social distancing or the number of people in a room.
A global example of public outcry instituting that religion should indeed be favored over protest was seen in Israel when Ultra-Orthodox Jewish observers were banned from publicly celebrating one of their most sacred holidays, Rosh Hashanah. Jewish affiliates fought back against these bans, saying they stemmed from prior discrimination and would foster greater anti-Semetic viewpoints of government officials moving forward. Because this was an outward ban against a specific group of observers, Israeli citizens viewed this as a direct act of intolerance and prejudice which would surface deep rooted religious divides within the country and as such, religious displays for the most sacred holiday should never be disallowed. Of course, government officials responded with direct facts of the increasing rates of the spread of COVID-19 within the country, however, this remains a point of discord to this day.
With the presence of a vaccine and the lifting of many restrictions across the world, we are no longer faced with such pressing debate regarding public gatherings amidst the COVID-19 pandemic specifically. Thus, moving forward, the views in this case urge us to consider the ramifications of the decisions set in place during this time and what they mean for future crisis situations. Certainly, it remains that supporters of the common good within their nation are at variance with individualist opponents in regards to the importance of public health over individual liberties. Some say if we allow ourselves to be robbed of individual rights now, when do we draw the line? However, it seems clear that circumstances of extreme disease outbreak to this extent are rare, and smaller situations in the future would never be comparable to the extremes needed to be taken in this situation to protect human life. At the end of the day, we do not have the opportunity to display our freedoms if we are not alive, and we must take this into account when distinguishing between when it is proper to prioritize societal needs, even if it results in surrendering rights for the time being.
Golowski is a senior at Johns Hopkins University pursuing a Pre-Law path, majoring in Psychology and French & minoring in Entrepreneurship and Management.
Sources:
[1] Jacobson, Peter D. “Covid-19 Orders Respect Civil Liberties and Do Not Intrude on Personal Freedoms.” Network for Public Health Law, 18 May 2021, https://www.networkforphl.org/news-insights/covid-19-orders-respect-civil-liberties-and-do-not-intrude-on-personal-freedoms/.
[2] “Coronavirus Disease (Covid-19): Mass Gatherings.” World Health Organization, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/coronavirus-disease-covid-19-mass-gatherings.
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[6] Col (Res.) Dr. Raphael G. Bouchnik-Chen. “Demonstrations Yes, Prayer No.” Begin-Sadat Center for Strategic Studies, 27 Aug. 2020, https://besacenter.org/coronavirus-demonstrations-prayer/.
[7] Col (Res.) Dr. Raphael G. Bouchnik-Chen. “Demonstrations Yes, Prayer No.” Begin-Sadat Center for Strategic Studies, 27 Aug. 2020, https://besacenter.org/coronavirus-demonstrations-prayer/.
[8] Hendrix, Steve. “Ultra-Orthodox Jews Clash with Secular Israeli Officials over Coronavirus Measures.” The Washington Post, WP Company, 6 Sept. 2020, https://www.washingtonpost.com/world/middle_east/ultra-orthodox-jews-clash-with-secular-israeli-officials-over-coronavirus-measures/2020/09/04/97bb37be-ee0e-11ea-bd08-1b10132b458f_story.html.
[9] Hendrix, Steve. “Ultra-Orthodox Jews Clash with Secular Israeli Officials over Coronavirus Measures.” The Washington Post, WP Company, 6 Sept. 2020, https://www.washingtonpost.com/world/middle_east/ultra-orthodox-jews-clash-with-secular-israeli-officials-over-coronavirus-measures/2020/09/04/97bb37be-ee0e-11ea-bd08-1b10132b458f_story.html.
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