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Attorney General files motion to dismiss lawsuit against governor

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In this June 12, 2017 file photo, Maryland Attorney General Brian Frosh speaks during a news conference in Washington.

The attorney general of Maryland last week filed a motion to dismiss the lawsuit filed earlier this month against Gov. Larry Hogan (R) and several other state officials alleging a variety of constitutional violations stemming from Hogan’s stay-at-home executive orders Friday.

On May 2, Del. Warren Miller (R-Carroll, Howard), Del. Dan Cox (R-Carroll, Frederick) and Del. Neil Parrott (R-Washington), as well as 10 pastors and other church representatives, two former members of the U.S. military, two businesses and the group Reopen Maryland LLC, alleged a number of U.S. and Maryland constitutional violations against Hogan and his administration and requested a temporary restraining order enjoining enforcement of a number of executive orders issued by Hogan in response to COVID-19.

The motion to dismiss, filed by the attorney general’s office, makes several assertions, first that the plaintiff’s claim fails because the plaintiffs have failed to establish a likelihood of success on the merits.

Specifically the attorney general argues that the constitutional rights the plaintiffs assert in their motion must yield to the state’s paramount interest in combating a “once-in-a-century” public health emergency. Citing to Jacobson v. Massachusetts, 197 U.S. 11 (1905), the attorney general notes that while the Constitution is not suspended during a state of emergency, Jacobson holds that “liberty secured by the Constitution … does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”

The attorney general further asserts that the governor’s proclamation of a state of emergency and invocation of emergency powers does restrict activities that would normally be constitutionally protect but notes that such restrictions are appropriate and necessary responses to COVID-19.

The state’s response specifically notes that the growing body of case law addressing the First Amendment claims related to COVID-19 stay-at-home orders supports the state and governor’s position.

While the motion to dismiss references the two recently decided cases from Kentucky and Kansas cited by the plaintiffs, it notes that the Kentucky case actually supports the state’s position, while the Kansas case is an outlier among recent cases which have ruled in favor of related executive orders in other states.

Further, the motion to dismiss asserts that Hogan’s orders do not regulate speech, and even if the orders do regulate speech such regulation is permissible under the Constitution. The other constitutional claims are similarly challenged on the ground that either they are inapplicable, or that the state’s restrictions through Gov. Hogan’s orders are necessary in light of the pandemic.

The group Americans United for Separation of Church and State also filed a brief in support of the motion to dismiss the plaintiff’s case arguing that the plaintiff’s rights in the free exercise of their religion have not been violated, and that the establishment clause of the First Amendment actually prevents the relief plaintiff’s seek.

Americans United describes itself in the brief filed with the Maryland District Court as a “national, nonsectarian public-interest organization that is committed to preserving the constitutional principles of religious freedom and the separation of religion and government.

In their brief, Americans United argues that the constitutional guarantee of religious freedom has never provided absolute license to engage in conduct consistent with one’s religious beliefs, citing to the U.S. Supreme Court’s decision in Cantwell v. Connecticut, 310 U.S. 296 (1940).

They further cite the Supreme Court’s decision in Prince v. Massachusetts, 321 U.S. 158 (1944) for the provision, “The right to practice religion freely does not include the liberty to expose the community … to communicable disease.”

Americans United argues that laws that burden religious conduct are permissible when they are neutral toward religion and apply generally. The group notes that Hogan’s executive orders applies specifically to all mass gatherings of more than 10 people whether they are religious or not.

Also Americans United argues that Marylanders are allowed to leave their homes to go to in person religious services of less than 11 people or to attend drive-in services.

In support of its brief, Americans United cites several cases that rejected similar requests for temporary restraining orders from all around the country including two cases from federal district courts in Virginia.

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