Are mask ordinances really against the Constitution?

When state representative Anthony Sabatini showed up at the Pinellas County Courthouse to file a lawsuit against the county’s face mask ordinance, he was cheered on by people who view mask requirements as violations of the U.S. Constitution. 

“We’re filing a lawsuit against Pinellas County because they passed an unconstitutional, illegal mandate that everyone wear masks,” Sabatini said Friday as he prepared to enter the courthouse to file a suit on behalf of two Pinellas County residents. “It’s just government overreach.”

The idea that mask requirements are unconstitutional has taken Sabatini, a first-term Republican lawmaker from Howey-on-the-Hills, on a tour of courthouses across the state. He’s filed similar suits on behalf of Floridians “from the Florida Keys to Tallahassee,” including one in Hillsborough County on June 29. With his newest lawsuit, Sabatini wants to see the county change the mask order to a recommendation or rescind the order entirely. 

But is requiring masks really against the Constitution?

Earlier in July, a Tallahassee judge said that Leon County’s mask ordinance didn’t violate any constitutional rights. And Louis J. Virelli III, a professor at the Stetson University College of Law, agrees. 

“There’s not a strong constitutional claim here at all,” Virelli, an expert in constitutional law, told the St. Pete Catalyst. “Our legislators have the ability to restrict our choices when they have a good enough reason for doing so. A mask requirement during a pandemic is not too big of an imposition.”

There’s a big difference between law and policy, Virelli said, noting Sabatini has repeatedly called the mask requirement “bad policy” and a bad idea.

“That’s a very different position than it being legally prohibited,” he said. “It is almost certainly not prohibited.”

Pinellas County commissioners enacted a requirement for people to wear face coverings while at any indoor establishment in late June. As democratically elected representatives, Virelli said, one of their key roles is to make policy decisions, especially when public safety is involved. Unless a law is violated, they are allowed to make these choices, whether people like them or not. Legally, Virelli said he doesn’t see any problems with Pinellas County’s ordinance. 

“I’m not aware of any good arguments, and the courts have not thought this is not a difficult constitutional question as of yet,” Virelli said. 

As for the cost of these types of lawsuits, Virelli said that taxpayers will be paying for their counties to defend their ordinances through legal fees. These suits also tie up resources related to time.

“It’s another case before a judicial system that’s already busy,” he said. “That’s the cost of doing business for a democracy.”

Those who have strong objections to mask mandates should shift their focus away from what is and isn’t constitutional and instead look at electing officials who share their beliefs, Virelli said. And, indeed, the people gathered outside the courthouse last week chanted “vote them out” to express their frustration with the county commission.

Only time will tell if more mask-related lawsuits will be filed, and there’s nothing preventing Sabatini – or others who disagree with the mask ordinance – from doing so. However, Virelli said, he would expect courts to be reluctant to change the rules.

“I don’t expect the courts to override legislative and public health choices made by people employed to make those decisions,” he said. “That said, if the language of the ordinances vary enough, it’s possible there might be an ordinance that goes too far, but I would expect the courts will view them similarly.”