Fox’s Tucker Carlson presses NJ governor on whether restrictions violate Bill of Rights

New Jersey Gov. Phil Murphy on Wednesday defended his decision to include churches and other houses of worship in his state’s strict social distancing guidelines to stop the spread of the coronavirus in the face of questions from Tucker Carlson of Fox News. 

Murphy said he was thinking of stopping the spread of the coronavirus, which has killed more than 3,000 in New Jersey, and not the Bill of Rights when he issued the rules. 

Carlson asked Murphy about the arrests in Ocean County, N.J., of 15 men who were congregating for a rabbi’s funeral at a Lakewood synagogue in early April. 

“The Bill of Rights, as you well know, protects Americans’ rights — enshrines their right to practice their religion as they see fit and to congregate together to assemble peacefully,” Carlson said. “By what authority did you nullify the Bill of Rights in issuing this order? How do you have the power to do that?”

“That’s above my pay grade, Tucker,” Murphy replied. “I wasn’t thinking of the Bill of Rights when we did this. … We looked at all the data and the science and it says people have to stay away from each other. That is the best thing we can do to break the back of the curve of this virus, that leads to lower hospitalization and ultimately fatalities.”

Carson then pressed Murphy on how he had the authority to issue guidelines that would prevent people from gathering at a house of worship.

“Since you are an elected official, a leader in the government, an executive, how do you have the authority to order something that so clearly contravenes the Bill of Rights of the United States — the U.S. Constitution. Where do you get the authority to do that?” Carlson said.

“Well, here’s the thing. We know we need to stay away from each other, number one. Number two, we do have broad authority within the state. And number three, we would never do that without coordinating, discussing, and hashing it out with the variety of the leaders of the faiths of New Jersey,” Murphy responded, adding that he had consulted with religious leaders in the state.

“We have to find a different way to worship,” Murphy later added in making the point that he wasn’t denying anyone’s right to worship.

“Government’s not allowed to tell people how to worship,” Carlson retorted.

The Supreme Court in a 1905 decision, Jacobson v. Massachusetts, said it was constitutional to require a smallpox vaccination. 

Since then, the courts have recognized government authority to quarantine and prevent travel to meet public health demands. 

Questions specific to the coronavirus pandemic, however, have not really been tested in the courts yet. It’s unclear how the courts would rule on some of the measures taken across the country to deal with the new pandemic. 

Michelle Mello, a professor of law and medicine at Stanford University, told The Hill recently that as long as federal and state governments can satisfy stringent judicial scrutiny, they “have broad emergency powers to do pretty much whatever is necessary.”

In a recent interview with ABC News, Rachel Laser, the president and CEO of the nonprofit advocacy group Americans United for the Separation of Church and State, argued that the Constitution calls for religious and secular institutions to be treated equally.

“The Constitution not only permits it, but demands it,” Laser said in a statement. “Such restrictions do not violate religious freedom; they ensure religious freedom is not misused in ways that risk people’s lives.”

On Mar. 31, Gov. Greg Abbott (R-Texas) issued an executive order adding religious worship to the state’s list of what is deemed an essential service.

“If religious services cannot be conducted from home or through remote services, they should be conducted consistent with the Guidelines from the President and the [Centers for Disease Control and Prevention] CDC by practicing good hygiene, environmental cleanliness, and sanitation, and by implementing social distancing to prevent the spread of COVID-19,” the executive order decrees.

New Jersey has been hit especially hard in the past month, with the Garden State recording more than 71,000 coronavirus cases. Only neighboring New York has more cases, according to a New York Times tracker.