Washington's Ban on Sizeable Home Gatherings is Legal
Governor to Limits Size of Social Gatherings, Including for Thanksgiving
But, says public interest law professor John Banzhaf, that's clearly wrong, because governments already impose many restrictions upon activities involving family members in the privacy of their own dwellings, and smoking is a prime and well established example.
Smoking provides a clear example of just how far restrictions on even every day activities can be imposed to protect health.
While it was once argued that a man's home was his castle, and therefore smoking in a private home cannot be prohibited, legislatures, regulatory agencies, and courts have all rejected that unsound concept and analogy.
For example, judges in the great majority of states have issued orders prohibiting smoking in private homes where it is necessary to protect the health of children, notes Banzhaf, who helped obtain a number of them for nonsmoking parents. Sometimes the ban on all smoking in a dwelling begins 24 or even 48 hours before a child arrives.
At Banzhaf's urging, many states now also ban smoking in homes where foster children reside.
Going even further, Prof Banzhaf helped obtain orders prohibiting persons from smoking in their own apartment or condo.
And, of course, smoking is often prohibited in private dwellings, in both public and private housing,
Indeed, notes Banzhaf, San Francisco appears poised to outlaw any smoking and vaping in apartment buildings of three or more units.
In short, suggests Banzhaf, governments have broad powers to regulate conduct to protect the public health, even when the conduct occurs in private dwellings.
And since the deadly risks of exposure to the coronavirus are much greater than similar exposure to secondhand tobacco smoke, especially in the small amounts which occur when smoke travels through cracks or through a common ventilation system into another apartment or condo, the legal authority of governments to regulate conduct in private homes would logically be much greater, he argues.
He also notes that if a person invited to a family or other gathering larger than permitted in New York or Washington, and contracted the COVID virus as a result, he could sue the host for violating the law, which in this case sets the standard of care which the court would likely direct the jury to apply in deciding the case and rendering a verdict for damages.