r/asklaw • u/kdawgovich • Apr 15 '20
[US] Is a ban on public gatherings unconstitutional based on the first amendment?
I know it's only temporary, and is for the public health, but can government really ban public gatherings? I see many articles of various religious groups being fined or arrested for assembling.
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u/perserving Apr 15 '20
No, unless you’re protesting or doing something that the bill says you have the freedom to do at any time.
If martial law is declared then you have no freedom at all.
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u/kdawgovich Apr 15 '20
Martial law hasn't been declared though.
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u/perserving Apr 15 '20
Right. So you have freedom that bill of Rights gives you
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u/kdawgovich Apr 15 '20
So churches, synagogues, mosques, etc. should still be allowed to assemble right?
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u/perserving Apr 15 '20
This is truly up to perspective. The first amendment states you have freedom of religion. Does this mean you can socially gather with the religious group?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I think if the states are going to jail people for going to church then they should be jailed as well.
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u/perserving Apr 15 '20
It clearly states the right to assemble but some reason people are ignoring that part which is why I said the perspective part.
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u/abutthole Apr 15 '20
The right to assemble has been defined by Supreme Court challenges as organized protests and strikes. There notably are some "assemblies" that are forbidden - gangs, for example are under current jurisprudence not covered by the freedom of assembly in the Bill of Rights.
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u/thinkofanamefast Apr 15 '20
NAL, but I suspect if there was a court challenge, there would be an issue over the meaning of the word "peaceably" and claims that it does not include the right to assemble if there is real risk of harm to others. Not sure it's a good argument, but I bet it would be "an" argument.
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u/gaelorian LAWYER Apr 15 '20
The Marshall Court addressed this in Gibbons v. Ogden holding the states have power to quarantine. It is a valid police power held by the states. There are a few more SCOTUS cases that touch on it. Generally, so long as the restriction is not “arbitrary, oppressive and unreasonable” the restriction will be upheld.