By now it should be obvious that elected state and local officials issuing COVID-19 lockdown and stay-at-home orders are just making things up as they go along.
Too often, their edicts aren’t based on science or data, but on a grotesque understanding of their own authority and infallibility. In the face of a worsening pandemic, they want to be seen doing something, taking bold action to stop the spread of the virus—that is, so long as it doesn’t hurt certain favored special interests.
That’s why Americans living under arbitrary and unconstitutional lockdown orders should simply ignore them, en masse, as an act of civil disobedience.
How else are ordinary people to push back against the capricious rules of politicians like Los Angeles Mayor Eric Garcetti? On November 25, the day before Thanksgiving, Garcetti and county health officials banned outdoor dining at bars and restaurants for three weeks. Because of the spread of the virus, they said, it’s just too dangerous, so we all have to do our part and make sacrifices.
But then they gave a carve-out for certain kinds of outdoor dining, like film and television crew’s catering sites. In Garcetti’s town, a massive film crew eating outside is safe but a small restaurant or bar with outdoor, socially distanced seating is too dangerous to remain open. Got it?
Then last week, L.A. County Superior Court Judge James Chalfant called out the mayor and county health officials on this arbitrary exercise of power, ordering them to produce scientific evidence to justify the outdoor dining ban. “You have to do a risk-benefit analysis for public health. You don’t just talk about the risk of spreading disease. You have to talk about the benefit of keeping restaurants open,” Chalfant said.
Exactly right. Chalfant is also requiring the county to provide data on hospital and ICU capacity to justify the claim that the health-care system would be overwhelmed without the outdoor dining ban. County health officials are scheduled to appear in Chalfant’s courtroom Tuesday to give whatever evidence they were able to cobble together since last week.
The lawsuit, brought by an attorney who also owns a downtown L.A. restaurant, captures the dynamic of pandemic governance in a microcosm. Health officials, based on nothing but their opinions about what might be safe or not, have put tens of thousands of people in America’s second-largest city out of work right before the holiday season.
This pattern has played out all across the country this year. Elected officials, often Democratic mayors or governors, promulgate rules, curfews, capacity limits, and outright shutdowns that betray either animosity or indifference toward certain groups while protecting other, favored groups.
That’s how we got a recent U.S. Supreme Court ruling that New York Gov. Andrew Cuomo’s order singling out churches and other houses of worship for special restrictions was unconstitutional, a ruling that was affirmed a week later when the Supreme Court sent a similar case back to a federal district court in California for reconsideration in light of its ruling in the New York case.
At issue in both cases was the arbitrariness of the restrictions on places of worship. As Justice Neil Gorsuch noted in the New York case, “It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”
It shouldn’t take an appeal to the First Amendment’s protection of the free exercise of religion to stay the hand of would-be municipal and county tyrants across the country. While perhaps laughably cartoonish in its bald-faced cronyism and sheer cruelty, the outdoor dining ban in L.A. is nothing to take lightly. It’s taking a terrible toll on real people, most of them people who can’t go weeks or months without working.
Last week, a viral video of a distraught L.A. restaurant owner brought home not just the arbitrariness and unfairness of the outdoor dining ban, but the cost in livelihoods and jobs destroyed. The woman was Angela Marsden, owner of the Pineapple Hill Saloon and Grill in Sherman Oaks, a Los Angeles neighborhood. Marsden issued a tearful plea for help and a call to protest after her restaurant’s outdoor dining area, which she had spent tens of thousands of dollars carefully adapting to comply with county pandemic rules, was shut down along with every other outdoor dining area in the city.
Her video went viral because not 50 feet away from her restaurant was a much larger outdoor dining area that was allowed to stay open because it was for a comedy television show on NBC. The entertainment industry, you see, had been deemed essential by California Gov. Gavin Newsom, which meant actors and film crews were exempt from the governor’s stay-at-home order issued last month, which applied to nearly the entire state.
Later, Marsden said in a Fox News interview that people in her city are suffering from pandemic restrictions and that small business owners and employees are “going to die” from poverty, depression, and suicide.
It’s hard to watch Marsden point out the hypocrisy and unfairness of L.A.’s outdoor dining ban without feeling a kind of rage. A terrible injustice is being perpetrated against ordinary working people by elected officials who believe they can shutter entire industries and destroy people’s livelihoods with the stroke of a pen.
These often are the same leaders who don’t follow their own pandemic rules and guidelines, who believe that lockdowns and curfews and restrictions are for poor people and the working class, not elites like them. These are the same leaders who tacitly or openly approved of massive Black Lives Matter protests over the summer and fall, in some cases participating themselves in violation of Centers for Disease Control guidelines about gathering sizes. Such protests were okay, in their view, because they agreed with the politics at issue. But we all know what would happen if crowds gathered to protest, say, draconian lockdown orders.
Fortunately for us, because we are Americans and we live in a free country—a place governed by laws and not by men—we have a constructive way to express our rage and outrage: we can simply stop obeying these lawless edicts.
We can safely open our businesses and places of worship, and in so doing dare the tiny despots in the local health department or the mayor’s office to stop us. If enough of us take a stand, as a free people should do, the Garcettis and Newsoms and Cuomos will back down—and if they don’t, they can face mass protests, public outrage, and eventually the rebuke of the Supreme Court.
If ever there were a time for mass civil disobedience, it’s now.