Massachusetts Supreme Court Washes Away Property Rights In the Name Of COVID

The Massachusetts Supreme Judicial Court (SJC) decision near the end of 2020 struck a resounding blow against the state’s traditional understanding of fundamental civil rights and the basic concepts of private property in the name of combatting COVID.

Ilya Feoktistov wrote this week at The Federalist about the SJC decision that the Assembly Clause of the First Amendment does not protect private gatherings in “private homes” by Massachusetts citizens. The court said that meetings in private homes are matters of “significant government interest” and are within the power of the state and governor to regulate.

In the case of Desrosiers v. Baker, the decision has been appealed to the U.S. Supreme Court. Appeals to the Supreme Court are only accepted for hearing in a few cases each year, and the odds are slim that the appeal of the Desrosiers case will be granted.

Feoktistov has filed a brief with the Supreme Court in favor of the citizens in the case, and he describes the SJC decision as taking away the right to “invite or exclude others” from one’s private property. The SJC has delegated that fundamental right to the governor. 

The case centers on the legality of executive orders issued by Massachusetts Governor Charlie Baker to create “lockdowns” in response to COVID-19 infections. The orders were considered some of the harshest and restrictive in the nation. They banned private gatherings of all sizes at any location that were not political or religious after 9:30 p.m. 

The lockdown orders carried criminal penalties and provided for civil fines and injunctions for enforcement. When requested, penalties could be imposed on private property owners who failed to provide government agents with a list of attendees at social gatherings.

The SJC decision wiped away the distinction between public and private property when it comes to assembly rules. While the government typically has the inherent power to control the coming and going of people on public property, the court’s decision expanded that power to property not owned by the public but by private individuals.

The U.S. Supreme Court has said that “liberty protects the person from unwarranted government intrusions into a dwelling or other private places” much more than when a person is on public property such as a courthouse or a public park. 

The lockdown orders in Massachusetts have expired, which is likely to weigh against the slim chances of the Supreme Court granting an appeal. However, the ruling by the SJC in Desrosiers will stand as a precedent unless it is struck down. That alone provides sufficient reason for the high court to take up the case and protect Americans’ fundamental property rights.