Attorney: Mask mandates are constitutional

COVID-19 mask generic
Posted at 9:18 PM, Aug 11, 2021
and last updated 2021-08-12 06:35:29-04

NASHVILLE, Tenn (WTVF) — On Tuesday night, Williamson County parents threatened school board members with lawsuits if the mask mandate passed. But do they have legal ground?

And it goes beyond Williamson County. Now that some businesses and schools are mandating masks, people are starting to file lawsuits. Some say what they are being forced to do is against the law.

"Generally speaking, it can be that the government can impose it now, it has to be reasonable." said attorney David Raybin. "You can't say you have to wear a mask in church but you don't have to wear a mask in a bowling alley. I mean, that sort of thing and it has to be applied uniformly, that cannot be applied in a discriminatory fashion for example.

Raybin says mask mandates by the government are constitutional.

He says laws have been in place for more than 100 years -- dating back to the Spanish Flu pandemic giving governments the right to pass laws to protect the safety and health of the public.

Raybin says it's like wearing a seat belt, or not smoking in public businesses.

"Can the government mandate wearing masks and more importantly, can they impose sanctions or fined or potentially jail if you're not wearing the mask in a public place, or in a business susceptible to the public and the answer to that question is yes; they can mandate it and punish you."

Unless it's a religious or health condition concern, Raybin says mask mandates are legal.

State governments have broad authority to mandate people to protect the health and safety of the public. Raybin says this power, known as the police power.

"At the end of the day, there's a constitutional concept called the police powers where the government has the right to police the citizens and force us to do things, basically for our own good.

Even though, maybe segments of the population may disagree with it, or think it's political."

In the 1905 case Jacobson v. Massachusetts, the U.S. Supreme Court said the state could require people to be vaccinated in order to slow the spread of smallpox.

This case is being used by some to say masks are legal. And when it comes to mask mandates in schools, Raybin says it is legal if the decision comes from local governments.

"Does the school board, have that particular authority as opposed to the mayor or the governor? That is not a constitutional issue as much as it is an issue of statutes."

When it comes to whether or not school boards have the power to issue mask mandates, Raybin says this depends on the powers delegated to individual school boards by governments.