The Right to Travel

District Court of Maine Finds Governor’s 14-Day Quarantine Restrictions Constitutional as Businesses Across the State Prepare to Shutter to Out-Of-Staters Ahead of Busy Summer Months

Bayley’s Campground Inc. v. Mills, No. 2:20-CV-00176-LEW, 2020 WL 2791797 (D. Me. May 29, 2020).

Written By: Devan McCarrie

The Governor of Maine issued a slew of executive orders designed to slow the rate of COVID-19 in Maine.  One order required that out-of-state people, unless they own or can rent property in Maine where they can quarantine for 14 days, cannot find shelter within the Pine Tree State.  The Governor is allowing hotels, inns, and campgrounds to stay open but only to the public that have already completed a 14-day quarantine inside of Maine.  A group of in-state and out-of-state businesses and individuals brought suit contending that the Governor could not impose restrictions that deprived “non-Mainers” of their fundamental right to travel and participate in commerce available to Mainers.  This action was brought and decided earlier this spring before the State’s tourist season was set to kick off in full swing. 

Plaintiffs contended that the 14-day quarantine restriction was unconstitutional because it deprived all citizens of a fundamental freedom without due process of law and violated equal protection because it arbitrarily discriminated in favor of businesses in rural counties.  They sought to (1) lift the band 14-day quarantine for those entering Maine, (2) lift the “ban” on all travel from certain locations in the US, and (3) lift the prohibition that prevented campgrounds to open to out-of-state visitors until they self-quarantined. 

Plaintiffs first contended that their claims should receive “strict scrutiny” because the fundamental right to travel is being infringed.  In order to stand, the 14-day quarantine rule must be motivated by a compelling state interest and must also be narrowly tailored to serve the government’s interest.  They further claimed that the quarantine restriction was not the least restrictive means of controlling the pandemic. 

The right to travel had been defined to contain three components, two of which were at issue in the case.  First, the “right of a citizen of one State to enter and to leave another State” and “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.” Saenz v. Roe, 526 U.S. 489 (1999).  The Court found that these rights required a compelling justification since “[f]reedom to travel throughout the US has long been recognized as a basic right under the Constitution.” Dunn v. Blumstein, 405 U.S. 330, 338 (1972). 

“The Constitution was framed under the dominion of a political philosophy less parochial in range.  It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. Seelig, 314 U.S. 160 (1941).

However, the Court went on to explain that at the current stage of the pandemic, it was unclear if there were any other less restrictive means for the state to meet its goal of curbing COVID-19. 

On the second count, the Court also found that the Plaintiffs would likely fail to succeed on their procedural due process claim.  Plaintiffs alleged that they had “no opportunity to challenge the basis for their quarantine, nor to exercise their rights without threat of criminal penalty.”  Penalties ranged from fines to jail time.  They argued that they were deprived of their liberty without due process, specifically, without any pre- or post-deprivation process.  However, as explained in many cases of this nature regarding COVID-19, emergency situations require an immediate response and quick action by the State. 

The Court concluded that given the nature of the COVID-19 pandemic and “the threat posed by modern-day traveling public inclined to migrate to Maine in numbers as high as 20 million over the course of a couple of months,” the Governor had not exceeded her powers.

As of June 9, 2020, Plaintiffs have filed for an appeal of this decision to the United States Court of Appeals for the First Circuit.  

Sixth Circuit Allows Congregants of Kentucky Church to Attend Services During Pandemic Despite Governor’s Ban

Roberts v. Neace, No. 20-5465, 958 F.3d 409 (6th Cir. 2020).

Written by: Nathaniel Belluso

The Sixth Circuit Court of Appeals in Kentucky granted an injunction pending appeal to the parishioners of Maryville Baptist Church. The Court enjoined the Governor and other officials from enforcing two orders that prohibited in-person services even if worshippers adhered to the social distancing guidelines applicable to other “life-sustaining” entities. Roberts v. Neace, No. 20-5465, 958 F.3d 409, slip op. at 10 (6th Cir. 2020). Both orders arose out of a concern for the spread of COVID-19. The same church had previously received an injunction from a district court for the Western District of Kentucky, which enjoined enforcement of the orders’ ban on in-person worship. Id. at 3-4 (citingMaryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE (W.D. Ky. May 8, 2020)).

The parishioners claimed that their free-exercise rights under the First Amendment were violated by the orders, which prevented them from attending “faith-based” “mass gatherings”. Id. at 2. The first order prevented mass gatherings relating to “community, civil, public, leisure, faith based, or sporting events.” However, the order exempted businesses such as airports, bus and train stations, shopping malls, and retail and grocery stores so long as individuals abided by social distancing guidelines. Id. The second order clamped down harder to prevent further spread of the virus by requiring all non “life-sustaining” organizations to close. This order defined those “life-sustaining” business as those which “allow Kentuckians to remain Healthy at Home” and did not include religious organizations as “life-sustaining” unless they provided “food, shelter and social services.” Id.

After attending an Easter service in violation of the orders, several of the Church’s congregants were issued “attendance is criminal” notices by police. In response, these congregants sued Governor Beshear and two other government officials, arguing that the orders violated the Free Exercise Clause and the right to travel under the U.S. Constitution. Although the district court denied relief on the free exercise claim, the court preliminarily enjoined Kentucky from enforcing its ban on interstate travel. Id.  at 3. The congregants appealed, seeking an injunction pending appeal on their free exercise claim. Id.  

The Sixth Circuit court opened its analysis by stating that the Governor’s orders preventing in-person worship services likely violated the Free Exercise Clause. Id. at 4. The Court felt that it would be difficult to have a law narrowly tailored enough to advance the state’s compelling interest. Id.  While the Court conceded the Orders were not motivated by “animus toward people of faith” and didn’t single out faith-based practices, the Court concluded that the numerous exceptions in the orders “remove[d] them from the safe harbor for generally applicable laws”. Id. at 5.

Although the orders allowed for only “life-sustaining operations,” the Court’s ruling pointed out that businesses “follow[ing] social-distancing guidelines and other health-related precautions” could continue to operate, and that this should also include “soul-sustaining” faith-based groups. Id. at 6. The Court’s analysis hinged on the question of whether the orders were tailored to the “least restrictive means” of accomplishing the state’s goal of preventing the spread of COVID-19. Id. at 8. The Governor argued that groups of people gathering in places of worship creates a greater risk of contagion than in other settings. Ultimately, the Court found this argument insufficient, and determined that the Orders did not meet “least restrictive means” test. Id.

Instead, the Court’s suggested that to satisfy the congregant’s First Amendment rights and the Governor’s necessity to slow the spread of the virus, services should have a capacity limit rather than being banned altogether. Id. at 9. With respect to “harm to others” and “public interest,” the Court stated that this injunction “appropriately permits … services with the same risk-minimizing precautions as similar secular activities” while permitting enforcement of social-distancing rules.” Id.