Court stays lower court ruling

Oregon Supreme Court stays lower court ruling that nullified governor's coronavirus measures

William Cummings and Claire Withycombe

Late Monday night, the Oregon Supreme Court hit the brakes on a Baker County judge's order that had invalidated Gov. Kate Brown's executive actions to slow the coronavirus pandemic.

Baker County Circuit Court Judge Matthew Shirtcliff had ruled earlier Monday that Brown's executive orders, which restricted public activities to reduce transmission of the virus, were "null and void." But about eight hours later, the Supreme Court issued a stay, which means Shirtcliff's earlier order cannot go into effect until the higher court considers the issue.

Opponents of the measures have decried the infringements on their personal and religious freedoms, as well as their ability to earn a living.

As Oregon's highest court weighs the issue, measures across the country meant to enforce social distancing and slow the spread of the coronavirus – which has killed more than 90,000 people in the U.S. – are facing mounting legal challenges.

A national trend 

Last week, Wisconsin's Supreme Court struck down similar orders imposed by Gov. Tony Evers, the first time a statewide order of its kind has been knocked down by a court of last resort.

That ruling forced the Democratic governor to work with the state legislature on future restrictions, but the Republicans who control the legislature have indicated they would rather leave the decisions to local officials.

On Tuesday, a federal District Court judge ordered the New York State Board of Elections to hold its June 23 presidential primary election after the Democratic commissioners canceled it out of concerns about COVID-19, which has killed more than 22,000 people in the state.

The commissioners argued the election was unnecessary because Biden was the sole remaining candidate, but Judge Analisa Torres ruled in favor of the plaintiffs in a lawsuit brought by former Democratic presidential candidate Andrew Yang. Torres said canceling the election deprived voters of the right to select the Democratic delegates who would represent them at the Democratic National Convention.

"Protecting the public from the spread of COVID-19 is an important state interest," Torres wrote. "But the Court is not convinced that canceling the presidential primary would meaningfully advance that interest – at least not to the degree as would justify the burdensome impingement" of the plaintiff's voting rights.

On March 25, A New Hampshire court denied an emergency motion to overturn a ban on gatherings of more than 50 people. The Pennsylvania Supreme Court refused April 13 to overturn restrictions from Gov. Tom Wolf in a case from four businesses and an individual who had argued he didn’t have the authority to close the businesses.

How the feds are responding 

Attorney General William Barr has expressed support for the position of those challenging stay-at-home orders and other restrictions, telling conservative radio host Hugh Hewitt, "federal constitutional rights don’t go away in an emergency."

The Department of Justice has sided with Virginia church in a federal lawsuit against Gov. Ralph Northam's order barring gatherings of 10 or more people.

A lawsuit was also brought against Maryland Gov. Larry Hogan's stay-at-home order. Maryland. The state's lawyers argued the measure was "a rational and justified policy response to a public health threat." But Hogan lifted the measure on his own Friday, without any court ruling.

The fight in Oregon 

Like Hogan, Oregon's Brown and other governors have defended their orders as necessary measures for the health and safety of their residents.

"From the beginning of this crisis, I have worked within my authority, using science and data as my guide, heeding the advice of medical experts," Brown said in a statement. "This strategy has saved lives and protected Oregonians from the worst of the COVID-19 pandemic."

Through her orders, Brown had banned public gatherings of more than 10 people and taken other measures to prevent contact between Oregonians that could pose a risk of spreading the highly-contagious coronavirus.

Several dozen plaintiffs opposed to Brown's orders, including state legislators and churches, filed a lawsuit against her on May 6 in Baker County Circuit Court.

Brown rapidly filed an appeal following Shirtcliff's ruling against her, asking the court on Monday afternoon to issue a stay and to weigh in on the case.

"The governor’s orders are not required for public safety when plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the governor have been authorized to do," Shirtcliff wrote in an opinion published Monday.

The judge evaluated several legal factors. Among them, the plaintiffs showed that they would face "irreparable harm," because the restrictions on public gatherings would infringe upon their religious liberties, Shirtcliff wrote.

While some states have started allowing a wider range of public activities, there is concern from public health experts that there is not enough testing and tracing for the virus to be able to safely resume public activities, particularly groups of people gathering indoors.

There also have been several high-profile cases of outbreaks among religious congregations. Asymptomatic people can also spread the virus unknowingly to others.

How Americans feel about stay-at-home orders

Many Americans have started to experience "quarantine fatigue" after two months of social isolation and economic devastation due to government measures meant to slow the spread of the virus.

But polls have shown that a majority still support social distancing restrictions and are wary of lifting them too quickly.

When asked what they thought of the measures taken to slow the spread of the virus, 51% of registered voters said they were reasonable and another 31% said they were not strict enough, according to a survey by the Center for American Political Studies at Harvard University and The Harris Poll. Sixty-eight percent said they were more worried about the danger posed by reopening too soon than the economic consequences of staying locked down too long.

The Harvard/Harris poll, which was conducted from May 13-14, found that 55% thought shelter-in-place orders were still necessary and 45% said we had already "flattened the curve" and such measures were no longer needed.

And as of a month ago, the vast majority of Oregonians supported the stay at home order.

In a statewide poll of 900 Oregonians conducted April 17-21, the public opinion firm DHM Research, partnering with the Oregon Values and Beliefs Center – both nonpartisan – found that 82% of Oregonians either strongly or somewhat supported the "stay-at-home" order.