OTTAWA — A lawsuit in Putnam County seeking to overturn Ohio’s mandate that children attending K-12 schools wear masks to prevent the spread of coronavirus disease from students to teachers, parents and others will likely face challenges in defending its claim that the order violates parental and religious liberties, among other Constitutional rights.
The 24-page lawsuit, filed in Putnam County Common Pleas Court on Monday, claims the school mask mandate violates several constitutional rights, including the rights to free expression, religious liberty, due process and parental authority often cited by opponents of the order.
The case in Putnam County Common Pleas Court is one of several challenges to Gov. Mike DeWine and the Ohio Department of Health’s efforts to slow the spread of coronavirus disease.
Dr. Joanne Brant, a constitutional law professor at Ohio Northern University, said the Putnam County lawsuit’s constitutional claims “face stark headwinds from adverse precedent.”
For example, the lawsuit claims that Ohio’s K-12 mask order is a violation of due process because there was no formal hearing before or after the order took effect.
But the federal right to due process only kicks in when an established right is infringed upon, Brant explained, so the court would need to first find that a person has a specific liberty interest in not wearing a mask at school, and then weigh that interest against the government’s interest in preventing the spread of COVID-19.
The lawsuit also alleges that Ohio’s K-12 mask mandate infringed upon the religious liberty of one plaintiff whose child was allegedly not allowed to wear a face shield as a substitute for a mask, despite the plaintiff’s insistence that doing so violated a sincerely held religious belief.
“They make much of the fact that the government would like to see a religious requirement as opposed to a religious belief,” Brant said.
Because Ohio does not have its own Religious Freedom Restoration Act — a set of state laws expanding religious freedom protections beyond those enshrined in the federal Constitution — Brant said the state is not constitutionally required to use the religious belief standard.
“There’s no constitutional requirement that we protect every religious belief that you have,” she said. “There are parents who don’t think they should have to send their child to school, yet we have compulsory education laws. There are parents who object to child welfare and child neglect laws. Religious liberty doesn’t give you the right to engage in those behaviors. Religious liberty is not absolute.
“The police power of the state to protect the well-being of children and their teachers allows them to do this.”
Likewise, the lawsuit’s claims that the order violates parental rights will face similar challenges because parental rights are not absolute.