Gov. Larry Hogan defended his stay-at-home order for Marylanders against a legal attack from business owners, clergy and three fellow Republicans, calling the executive order “narrowly tailored” to achieve the state’s “compelling interest” of protecting the public from the deadly COVID-19 virus.
In papers filed Monday in U.S. District Court, Hogan’s lawyers assailed the “hyperbolic claims” by the order’s challengers that the governor’s action has placed them under “house arrest” without due process and deprived them of their rights to free speech and peaceful assembly.
On the contrary, the governor has taken measured but necessary steps amid the “once-in-a-century public health crisis,” and last week relaxed his order that Marylanders stay home except when seeking “essential services,” wrote Hogan’s counsel from the state attorney general’s office.
“There is no less restrictive alternative available to the state to control this pandemic,” Assistant Attorney General Adam D. Snyder added. “Covid-19 has no cure and no vaccine, and the only way to stop the spread of this highly contagious and lethal virus is to minimize interpersonal contact through social distancing measures.”
As of early Tuesday afternoon, the Maryland Department of Health reported 41,546 confirmed cases of COVID-19 and 1,963 confirmed deaths from the virus, including 60 in the previous 24 hours.
The governor’s filing was in response to the plaintiffs’ request for a court order barring enforcement of Hogan’s directive, which they said violates their constitutional rights to assemble in groups of more than 10 and to hold religious services as they deem appropriate. Operators of the private Antietam Battlefield KOA Campground and Adventure Park USA, who are also plaintiffs, contended the governor’s order deprives them of equal protection, noting that other businesses deemed “essential” by the governor are allowed to remain open.
U.S. District Judge Catherine C. Blake, who sits in the federal courthouse in Baltimore, has not said when she will rule on the plaintiff’s motion for a temporary restraining order or preliminary injunction against Hogan’s directive.
Those seeking the court order include Dels. Daniel L. Cox, R-Frederick and Carroll and the plaintiffs’ lead attorney; Warren E. Miller, R-Howard and Carroll; and Neil Parrott, R-Washington; the ad hoc group Reopen Maryland LLC, which has rallied in Annapolis against Hogan’s directives; and a group of pastors. In addition to the court order, the plaintiffs seek only “nominal damages” for the alleged violations of their constitutional rights.
“At no time in U.S. history has a governor taken such sweeping power grabs from churches and religious assemblies, nor ordered all healthy persons to remain inside their homes on ‘house arrest’ now going on 44 days, nor ordered the wearing of face masks under criminal penalty and without significant exceptions, nor prevented the reasonable and equitable continuation of commerce for all persons while most flounder without unemployment payments, regardless of whether they are able to equally comply with health guidelines,” Cox wrote in the plaintiffs’ filing last Wednesday.
“The assertion of a pandemic by the governor does not thereupon grant his office the kind of sweeping and discriminatory powers he has exercised,” added Cox, an Emmitsburg solo practitioner. “Plaintiffs respectfully request this court issue (an order) so that they may, while following reasonable health guidelines, worship freely with in-person church services without limitation similar to large congregating indoors in other contexts from Home Depot and Walmart to liquor stores and the governor’s press conferences, operate their businesses in order to feed their families and prevent bankruptcy, and enjoy their right to speak without intimidation, all without the threat of criminal prosecution.”
Similar challenges to stay-at-home orders have had mixed results in other states in recent weeks. Orders in Illinois, Maine and California survived federal court challenges, while U.S. District Court judges in Kentucky and North Carolina found the states’ restrictions too broad or arbitrary.
Hogan, in his court filing, said his actions are not unprecedented: Baltimore canceled public gatherings, closed pool halls and banned church services to fight the Spanish flu 100 years ago.
“Plaintiffs continue to claim that the governor’s order violates several aspects of the First Amendment, but they have not grounded any of those claims in fact or in law,” wrote Snyder, the assistant attorney general.
“Factually it is not true that measures like these have never, in the history of this country, been necessary to combat a health crisis,” Snyder added. “Temporary restrictions on gatherings are a necessary and focused response to a public health threat that – even with social-distancing measures to ‘flatten the curve’ – still claims dozens of lives each day.”
The case is Antietam Battlefield KOA et al. v. Lawrence J. Hogan Jr. et al., Civil Action No. CCB-20-1130.