How to Reason with a Trumpie
By Mary Coombs
A couple of days ago, I was sitting at an outdoor table of a favorite cafe with a coffee and a pastry. I struck up a conversation with a man (6 feet away) at the next table. I was unmasked (allowed while you were eating), as was he--involved with his iPad. I’m not sure how the topic of masks came up. (The governor has issued an order requiring them when indoors; this café had required them even before that.) He lectured me that he used to own restaurants; germs were transmitted by hands. Masks were useless since the spaces in the fabric of a cloth mask were larger than the size of a virus. In any event, it was his constitutional right not to wear a mask. And if the owner tried to exclude him for not wearing a mask, he was ready to sue her.
You can fill in my side of this conversation. Even if a mask didn’t prevent every particle from getting through, it could drastically reduce how much virus you were exposed to. The purpose of masks is largely to protect others from us, and we can’t know for sure that we’re not contagious, since we can infect others when we are asymptomatic or pre-symptomatic. What provision of the Constitution are you thinking of? (You can imagine my getting on my high horse in a debate between a restaurant owner and a retired law professor over the meaning of the Constitution!) If a business owner refuses to serve you because you are not wearing a mask – or not wearing shoes – or, if she wants, because she isn’t admitting anyone today wearing purple, that is her legal right.
But as I thought later about this conversation, I wondered why I had engaged with him. Each step was quite predictable. I wasn’t going to move him one inch; he wasn’t going to move me one centimeter. I realized that the answer lay in the pandemic. For over four months, I haven’t touched another human being. Even live conversations are rare. When I go out walking, I sometimes wave to another walker, or exchange a few words in passing, or maybe admire and pet a dog if it’s on a long enough leash. An argument isn’t a conversation. But it’s a verbal interchange, live and in-person, with another human being. I guess I need to try harder to sit 6-plus feet away from someone with whom I can talk about anodyne topics like the weather!
But if after all of this, you do decide to engage with a Trumpie, here are ten legal arguments you can make if someone tells you, “I have a right not to wear a mask!”
1. Let’s think of what kind of “rights” claims people are making and how to respond more precisely and accurately than just “no, you don’t, you idiot.” (Not that I haven’t been tempted.) If all they say is “I have a right,” the answer is that this is unanswerable because it is meaningless. A claimed right must come from somewhere, or it’s just a cry of a two-year-old.
2. If they say “I have a God-given right,” that’s a little trickier. I’m not aware of anything in the Old or New Testament that seems to support this, but I am not deeply grounded in these texts. I suspect some of this is not based in a text but more of a “God told me,” or “God told my pastor who announced it.” So we are back in the unanswerable, although religious freedom rights in the U.S. do not allow you to do anything you claim is allowed by your religion, in contradiction to public laws.
3. Some say “I have a civil-law right.” This is profoundly silly since the United States (apart from some aspects of Louisiana law, carried over from its French history) has never had civil law, but is rooted in common law with a thick overlay of statute and Constitution.
4. What about “I have a constitutional right to not wear a mask anywhere I don’t want to wear a mask”? The Constitution is a text, so if there is such a right it must show up somewhere in the text. The original Constitution talks only about government structure and powers. But this “constitutional right” must come from some limit on government power.
5. What about the “Bill of Rights” (the first 10 Amendments)? None of the “enumerated” rights – freedom of speech, right to a jury trial, etc. -- are relevant. Admittedly, Amendments IX (“The enumeration of certain rights shall not be construed to deny or disparage others retained by the people”) and X (“The powers not delegated to the United States . . are reserved …to the people.) might include the right to go maskless. But it might include anything – and the courts have basically decided that these Amendments don’t have any real “bite” (even without a mask on), apart from a recognition of a right of personal privacy grounded in part on these provisions. But the right of privacy doesn’t apply to actions taken in public spaces which can impact directly on the interests of others.
6. The likeliest constitutional provision they might be thinking of is the Fourteenth Amendment: “nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The last part is irrelevant since all the laws and regulations regarding masking apply equally to everyone (except for recognizing relevant differences, such as excusing very young children or people with proof of health conditions that make wearing a mask dangerous – these are rare).
7. As to the “due process clause,” note that it doesn’t prevent people from being deprived of a “liberty,” only that the deprivation must be done following due process of law. It is possible that some mask mandates are issued by an executive in a state where its laws and constitution reserve this power to the legislature, or by a county or municipality in a state where only the state itself can do this. But the claims I’ve seen of “I have a constitutional right not to wear a mask,” are broad-brush and thus simply wrong.
8. Maybe they mean “I have a right under civil-rights law not to wear a mask.” Nope. Our civil-rights laws are all about categories of people being treated differently– not that I have a right to rent a house or go to a college or go in a restaurant, but that the landlord or college or restaurant owner can’t exclude me for certain specified reasons. Not because of my race, color or previous condition of servitude; not because of my sex/gender (now determined in at least some circumstances to include not because I am gay, or lesbian, or transgender). There’s no civil-rights law protection for denying you some benefit you might want because you are putting others at risk or because you are stupid, or just because the landlord or restaurant owner doesn’t like you.
9. And that brings us to the last claim I have heard: “I have a right not to wear a mask, and the management of X store or Y restaurant has no right to prevent me. If they try to throw me out, I’ll have a temper tantrum (obnoxious, but not asserting a “right”) or I will sue them.” WRONG. Go back to the civil-rights laws: they were designed to say that property owners can’t exercise their freedom to decide who they will hire, rent to, or serve if – but only if -- they can be shown to have done so based on the would-be employee, tenant, or customer’s race, sex or other specifically protected category.
10. Absent such a law, the restaurant or store owner retains the right to decide who to serve. Think of the “no shoes, no shirt, no service” sign one would sometimes see in a store window. When I mentioned writing this little screed, a friend told me a story (perhaps apocryphal) of a restaurant with such a sign. The would-be customer entered wearing a shirt, socks and shoes, and no pants or underpants. (I wondered, if it were true, if the waitress was especially careful when refilling said customer’s coffee cup!)
Mary I. Coombs earned a B.A. in 1965, an M.A. in sociology in 1967, an M.A. in library science in 1970, and a J.D. in 1978, all from the University of Michigan. Following graduation from law school, she served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit. She was in private practice until she joined the University of Miami School of Law faculty in 1983. She was a professor at the law school for 31 years, until retiring in 2014