This past Sunday was “Freedom from Masks Sunday” in our church. After fifteen months of being coerced into wearing masks by our local government, we finally were given the choice of wearing or not wearing masks.
When asked why we still have to wear masks on April 30th, President Biden said, “It’s a patriotic responsibility, for God’s sake.” He said this even though he had been vaccinated and so had about half the country. To make matter worse, he later followed up this advice by saying, “The rule is now simple: get vaccinated or wear a mask until you do.”
Was this actually the “rule?” Was it breaking the law if you failed to comply? David B. Rivkin, Jr. and James Taranto write in The Wall Street Journal that in fact, there is no such rule. The Centers for Disease and Prevention (CDC) merely issued “guidance” that if you’re fully vaccinated, “you can resume activities without wearing a mask. . . except where required by federal, state, local, tribal, or territorial laws, rules and regulations.”
States were quick to relax their mask mandates and even Washington followed soon with saying its decrees applied only to unvaccinated people on most federal property. But California, naturally, had their own set of rules. They insisted their mask mandates would remain in force until June 15. The White House and CDC still require universal masking on public transportation and at transit hubs, including airports.
Why, you might ask? Are vaccinations protective against the virus in most, but not all, situations? Is the virus more virulent on a subway than in your grocery store? Are airplanes nesting grounds for this dangerous virus? In fact, airplanes have been shown to be among the safest places to be since they have exceptionally high rates of turnover of the surrounding air, similar to operating rooms.
This raises some important questions about the limits of our freedom. Mask wearing has become a new form of virtue signaling. Biden reinforced that claim with his appeals to patriotism, which began during last year’s campaign as a rebuttal to the mask-resistant President Trump. Rivkin and Taranto say that if wearing a mask conveys a political message, mandating it is constitutionally suspect.
“No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religions, or other matter of opinion or force citizens to confess by word or act their faith therein,” wrote Justice Robert Jackson in West Virginia State Board of Education v. Barnette (1943). This Supreme Court opinion held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.
Think about it. These authors say, “To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance; that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home.”
Public health officials would say, and they did, that they are regulating conduct, not free speech, and they are doing so to protect the public health. That argument might have been persuasive six months ago, but what about today? With the availability of several effective vaccines and the falling daily counts of Covid infection cases, could the government continue to make this argument? The Biden administration has made it clear it will do so as long as the media and public opinion will let them. Clearly, they are in full control of the CDC messaging, with the aid of the teachers unions, so the only hurdle to overcome now is public opinion. They must keep their eye on the mid-term elections that are coming soon.
What must the government prove to continue such coercive mandates?
The authors say there are three elements that must be met. The government must demonstrate:
- The restriction furthers a “compelling interest”
- The restriction is “narrowly tailored” to fulfill its objective
- The restriction is the “least restrictive means” of doing so
Clearly, preventing disease is a compelling interest, but there are limits. Wearing masks in perpetuity would probably reduce the spread of the flu, as the 2020 flu statistics demonstrated, but this would hardly be considered necessary forever. The common cold, likewise, would certainly be reduced if everyone wore masks, but the public would never accept such restrictions for a non-life-threatening disease.
Vaccinations have become a much less restrictive means of stopping the spread of the virus than mask mandates. For this reason, federal and state governments have been encouraging Americans to get vaccinated. But this has not required coercive measures, at least not yet.
The wearing of a mask at this point in the pandemic should be entirely voluntary, based on personal risk from the virus and the personal choice to refuse vaccination. Thankfully, most Americans will get vaccinated, thereby reducing the risk for those who don’t as we eventually achieve herd immunity. It’s time to stop this “political correctness” of wearing masks just to signal your virtue or your patriotism.