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State and Local Government Mandatory Mask Ordinances and Orders: Are They “Legal?”

By M. Jansen Voss
Christian & Small LLP
Birmingham, Alabama

There is an ongoing social, political, and healthcare debate surrounding mandatory mask ordinances and orders that have swept the country in recent months. Many see wearing masks as a societal duty, or simply a scientifically proven method of curbing the spread of COVID-19. Others see masks ordinances and orders as an affront to individual liberty and freedom. So, are these ordinances and orders lawful?

The Tenth Amendment to the United States Constitution gives states the rights and powers “not delegated to the United States.” Thus, the states are granted the power to make and enforce laws protecting the welfare, safety, and health of the public.

In Gibbons v. Ogden, an 1824 United States Supreme Court decision, Chief Justice John Marshall defended the police powers clause including “inspection laws, quarantine laws, [and] health laws of every description.” 22 US 1, 78 (1824). In 1905, the United States Supreme Court held that states had the right to require smallpox vaccination. Jacobson v. Massachusetts, 197 U.S. 11 (1905). The Court noted that individuals must give up some freedom for the benefit of society as a whole. Specifically, the Court noted: “[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint.” Id at 29.

In Henry v. Desantis, a May 2020 decision out of the Southern District of Florida, a case out of the Southern District of Florida, a food service worker was laid off from his job during the COVID-19 pandemic. The Plaintiff argued that the governor of Florida’s executive orders closing her place of employment to avoid the spread of COVID-19 were unconstitutional. 2020 WL 2479447 (May 14, 2020) The Court quickly dispatched the Plaintiff’s First Amendment argument noting that there is no generalized right of social association. Id at *6. The Court also quickly dispatched the Plaintiff’s due process claim pointing out that the governor’s executive orders were rationally related to legitimate government interest and did not implicate race, alienage, or national origin:

In the Executive Orders, the Governor stated the government interest as the state’s public health and slowing the spread of COVID-19 in a highly concentrated region. This is most certainly a “legitimate” government interest under the rational basis test. Southeast Florida accounted for 60% of the state’s COVID-19 cases—that is four counties (of sixty-seven total) accounting for more than half. The Governor’s determination to treat Southeast Florida differently than the rest of the state is, therefore, most certainly rationally related to achieving the stated goal. The Executive Orders explain the Governor used scientifically-based-research policies from the U.S. Centers for Disease Control. There is nothing arbitrary about the Governor’s actions. Using science, medicine, and data, the Governor took reasonable steps clearly related to the legitimate interest in protecting public health. Id at *7.

Finally, the Court observed that the Plaintiff’s challenge to the Governor’s orders was a challenge to Florida’s police powers. Citing Barnes v. Glen Theatre, Inc., the Court noted the States have the authority (police power) to provide for public health and safety. 501 U.S. 560, 569  (1991) But, the Court opined that such a challenge should play out before the state court and under the state’s constitution, not in a federal venue. Id at *8:

Petitioner has not identified a constitutional right that Governor DeSantis has violated. She is not prohibited from any of her First Amendment rights. She is not confined to her house in an unreasonable seizure under the Fourth Amendment. She is not deprived of equal protection of the law under the Fourteenth Amendment. The Governor’s actions are reasonable and measured, based on data and science, and rationally related to a legitimate end. In other words, Petitioner is subject to a pause in her life, as authorized by law, in exchange for and in an effort to maintain the majestic freedoms enjoyed in America prior to, during, and after this pandemic. As painful as this moment is for her and millions of other Floridians, her constitutional rights are not implicated. Id.

However, the Court in Henry cautioned that a state’s police power is not unlimited, and “Constitutional rights do not give way to a government’s perceived authority in times of crisis. This pandemic, despite being unprecedented, did not suddenly nullify the people’s inalienable rights.” Id. at *8.  See e.g., On Fire Christian Ctr., Inc. v. Fischer, ––– F.Supp.3d ––––, 2020 WL 1820249 (W.D. Ky. 2020) (granting a temporary restraining order against the City of Louisville, Kentucky mayor for banning religious gathering on Easter Sunday amid the COVID-19 pandemic in clear violation of the First Amendment).

There have been a number of constitutional challenges to ordinances and orders aimed at curbing the COVID-19 pandemic and there likely will be more in the future. However, one way local governments can avoid constitutional challenges to these ordinances and orders is by implementing reasonable and measured science-based restrictions aimed at mitigating the spread of COVID-19.

About Christian & Small

Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast, and the nation with clients ranging from individuals and closely-held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective, and efficient solutions for clients. With offices in Birmingham, metro-Jackson, Mississippi, and the Alabama Gulf Coast, Christian & Small focuses on the areas of litigation and business, is a member of the International Society of Primerus Law Firms, and is the only Alabama-based member firm in the Leadership Council on Legal Diversity. Our corporate social responsibility program is focused on education, and diversity is one of Christian & Small’s core values. Please visit www.csattorneys.com for more information.

No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. 


The general information contained herein is intended for informational purposes only. It is not intended to be, and should not be construed as, legal advice or legal opinion on any specific facts or circumstances.

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