Law in the Marketplace: Can Gov. Sununu make you wear a mask?

For the Monitor
Published: 7/27/2020 1:29:50 PM

Despite President Donald Trump’s recent about-face from skepticism to support of mask-wearing as a means to lessen the risk of coronavirus infection, there are undoubtedly tens of millions of Americans, including, perhaps many New Hampshire citizens, who believe that federal and state orders requiring them to change their behavior to lessen coronavirus risks are unconstitutional.

This raises the questions of whether Gov. Chris Sununu can constitutionally impose a mask-wearing requirement or other coronavirus-based restrictions and if so, what the accompanying legal penalties for their violation may be in New Hampshire?

The relevant restrictions may also include, for example, the prohibition of large meetings, including church services; social distancing; and limitations on the right of landlords to evict tenants and of employers to terminate employees for refusal to come to work because of coronavirus fears.

The short answer to the above question is yes. To explain:

-- For many decades, the U.S. Supreme Court has held that state governors have the power to regulate the behavior of their citizens to benefit the general welfare of their states. Lawyers who want to review the case law on this issue should consult, for example, Jacobson v. Cmmw. of Massachusetts, 197 U.S. 11 (1905).

-- It is also true, however, that states are subject, with some exceptions, to the same amendments to the U.S. Constitution to which the federal government is subject with respect to the constitutional rights of citizens under the U.S. Constitution. These include the right of citizens to freedom of speech and religion and to due process. Thus, any claim that a coronavirus restriction is unconstitutional requires careful consideration.

-- However, in a very recent case called S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, decided on May 29, 2020, the U.S. Supreme Court reiterated its long-standing position that the states have broad powers to protect the health of their people, and, on this ground, it held that the state of California did not violate its citizens’ First Amendment rights by prohibiting large gatherings, including even church gatherings.

What does this mean for Gov. Sununu? First of all, the New Hampshire Constitution gives New Hampshire governors very broad powers during “states of emergency,” including, clearly, health emergencies. The relevant powers include those “to perform functions, powers, and duties necessary to secure the safety of the state’s citizens.”

Furthermore, in a very recent case call Binford v. Sununu, decided on March 26, 2020, the New Hampshire Superior Court upheld, under both the New Hampshire and the U.S constitutions, the constitutionality of a coronavirus-based order by Gov. Sununu prohibiting large gathering.

The court ruled, in effect, that any such prohibition or other measure by the governor would be constitutional as long as he acted in good faith and on the basis of specific facts reasonably indicating the necessity of the measure. The court held that the governor’s order met these tests.

It is possible, of course, that the Binford case will be appealed and that, if it is, the New Hampshire Supreme Court will overrule it. But in my view, given the horrors of the coronavirus, its extreme contagiousness, and the traditional deference of the federal and state courts to the exercise of discretion by governors in addressing issues of health, Binford and other anti-coronavirus orders that Gov. Sununu has issued or may eventually issue will be upheld.

John Cunningham is a Concord tax and businesses lawyer and estate planner. He has published Drafting Limited Liability Company Operating Agreements and Maximizing Pass-Through Deductions under Internal Revenue Code Section 199A. Both are the leading books in their fields. If you have business or tax questions you’d like addressed in this column, call John at (603) 856-7172 or e-mail him at

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