Face Masks- A Constitutional Argument?

by Freeland D. Oliverio, Attorney at Law

email: foliverio@bmblaw.com :: office: 330.253.3337 :: mobile: 330.760.2494

It goes without saying that the Covid-19 pandemic has changed much about the way we live. Hand shakes and mass gatherings largely seem like things of the past, while hand sanitizer and face masks have become the new norm. 

While states such as New York and California have mandated the wearing of masks in public, Ohio is different in that there is no requirement that citizens wear a mask. Rather, Ohio has stated that certain companies can reopen on May 4, and decide for themselves whether or not their employees, clients, and customers must wear face masks.

The constitutionality of masks in the United States is a somewhat tricky one, primarily because most laws have revolved around the prohibition of wearing masks, rather than the compulsory requirement that masks be worn. For example, in places where violent groups such as the Ku Klux Klan or AntiFa are prominent, the Courts have upheld the constitutionality of mask prohibitions in the name of public safety. However, what about laws requiring the wearing of masks in public?

The primary question is not whether or not a government requiring masks is unconstitutional, but what lengths may a government take to protect its citizens?

Those who believe the government has a right to enforce such restrictions may look to a case from 1905 for support. In Jacobson v. Massachusetts, the Supreme Court of the United States was asked to review a Massachusetts law that required compulsory vaccinations to combat smallpox. The Court ruled that the state has a right to pass sanitary laws, laws for the protection of life, liberty, health, and property, and therefore upheld state and local laws requiring vaccinations for the protection of the community. It stands to reason that, if the Supreme Court has ruled that it is constitutional for governments to penalize citizens for refusing to vaccinate, it is not outside the realm of possibility that laws requiring the wearing of masks may also be upheld as constitutional.

However, there may be a constitutional argument that mask requirements violate the Equal Protection Clause of the Constitution. Under the Equal Protection Clause of the Fourteenth Amendment, that no, “State [may] deny to any person within its jurisdiction the equal protection of the laws.” This means that the state is not permitted to treat its citizens differently when applying the law. One could argue that masks cost money; not everybody can afford to purchase surgical masks, and not everyone has the means to sew their own masks at home. If the state or local governments cannot provide masks to their poorer citizens, then those citizens cannot exercise fundamental constitutional rights, such as purchasing food or receiving essential services. If this is the case, laws requiring the wearing of masks in public may be unconstitutional.


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