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Wisconsin Supreme Court Weighing Second ‘Safer At Home’ Challenge

Case Argues Stay-At-Home Order Violates State Constitutional Rights

wisconsin supreme court chamber
Photo Phiend (CC BY-NC-ND 2.0)

Final briefs have been filed in a second lawsuit challenging Wisconsin’s “Safer at Home” order, this one arguing the order violated peoples’ rights to freedom of worship, speech and travel under the Wisconsin Constitution.

Justices could decide at any moment whether to take the case, and they could also issue a decision any day in the first lawsuit against the stay-at-home order issued by Gov. Tony Evers’ administration in an effort to slow the spread of COVID-19.

The first case, which was argued before the court a week ago, seeks to overturn the entire stay-at-home order, arguing Evers’ administration broke the law when it issued the order without first getting the Legislature’s approval.

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The second case, filed May 4, is narrower, but it could still have sweeping consequences depending on what the court decides.

It was brought by two private citizens, Waukesha County resident Jere Fabick and Walworth County resident Larry Chapman, who argue the order unconstitutionally restricted their rights as individuals. Fabick is a policy advisor and board member for The Heartland Institute, the national conservative think tank.

At the heart of their case is the argument that while the stay-at-home order permits some activities without limitations, like shopping at hardware and grocery stores, it restricts activities that are protected under the Wisconsin Constitution.

Those include the state constitution’s guarantee that the “right of every person to worship Almighty God according to the dictates of conscience shall never be infringed.”

The stay-at-home order permits in-person worship services of up to nine people, a restriction the lawsuit contends is arbitrary given the unlimited crowds that can gather at many private businesses deemed “essential” by state government.

“In the final analysis, (the state’s) decision to allow hundreds of people to gather together to shop for power tools or spray paint, but no more than nine people to gather together to pray and worship together remains completely inexplicable,” wrote lawyers for Fabick and Chapman in a brief filed with the court Monday. “Put simply, a believer walking between pews at his house of worship does not face any greater or different risk of infection than a shopper walking between the aisles at Wal-Mart.”

The Evers administration disputes that.

The state Department of Justice, which is defending the stay-at-home order, wrote in its own brief filed last week that the restrictions on religious services are based on experiences in other states, where the close confines of indoor worship allowed COVID-19 to spread.

“Large gatherings of the public, in close proximity, for extended periods of time, where speaking, singing, and direct person-to-person contact may occur, easily become hotspots for outbreaks,” wrote the DOJ. “Many of the first major COVID-19 epicenters involved outbreaks through such gatherings. Of course, no one wants this to be the case. But the virus does not operate by human standards.”

The DOJ wrote that the Evers’ administration’s order already recognized the constitutional protections for religion by allowing smaller in-person gatherings despite the elevated risks.

The DOJ also told justices that orders like “Safer at Home” are allowed because of a 1905 U.S. Supreme Court decision that upheld mandatory vaccinations to stop an outbreak of smallpox.

The other disputes in the lawsuit are slightly more complicated.

For example, the lawsuit contends the stay-at-home’s language ordering “all individuals in the State of Wisconsin … to stay home” bans political gatherings, which are also expressly protected under the state constitution. Fabick told the court May 4 that the order kept him from attending an April 24 rally on the grounds of the Wisconsin state Capitol.

But the DOJ told the court Friday that rallies like the one held last month are allowed under the order as long as they are held outdoors.

“The purported total ban on physical gatherings does not exist,” wrote the DOJ. “Safer at Home contains nothing to prevent people from including expressive activity in their outdoor activity in parks and open spaces. In fact, just observing populated areas of Wisconsin would reveal that many people are doing just that every day.”

In their Monday filing, attorneys for Fabick and Chapman called the DOJ’s latest comments “welcome news,” but asked the court to affirm them in a formal ruling.

They also want the court to strike down the stay-at-home order’s restrictions on nonessential travel, which they call “draconian.”

“The State cannot create arbitrary classes of favored and disfavored travel in this manner, at least not without demonstrating how the disfavored travel poses public health risks that are different in kind or in magnitude from the risks posed by the favored travel,” they wrote.

The DOJ told justices the state’s order still permits travel for a wide variety of activities. It also said some restrictions are warranted.

“The more people travel throughout Wisconsin, the more the virus will spread,” wrote the DOJ.

The right to travel is not expressly protected under the Wisconsin Constitution, but it has been recognized by the Wisconsin Supreme Court in previous cases.

It’s now up to the Wisconsin Supreme Court to decide whether it wants to hear the private lawsuit, and if so, how it wants to handle the case filed by GOP legislators.

Republicans had wanted the court to immediately block “Safer at Home” when they filed their lawsuit April 21. Instead, the court has let the order remain in place while it considers the challenge.

The current stay-at-home order is scheduled to expire Tuesday, May 26, although Evers has not ruled out extending it if public health officials decide the circumstances require it.