Seeking to mark out a middle ground between unmitigated spread of the coronavirus and an overzealous public health response, Sen. James Lankford (R-OK) said he believes that measures like social distancing and wearing masks have been effective across the country because of—not despite—their being optional.
"We are the land of the free and the home of the brave," Lankford said on an episode of his own podcast, The Breakdown with James Lankford, released this weekend. "This is a moment when we should be wise with our freedom, and to say 'we have a lot of freedom to be able to make choices, to be able to do things, to be able to work or not work; we should be wise in that freedom to know that we're also guarding each other.'"
Lankford's guest on the episode, titled "Constitutional Rights During a Crisis," was Eric Dreiband, Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice. Lankford asked Dreiband about scenarios he said had been brought to his attention by Oklahomans.
"There are folks that have called me and said, 'Okay, I don't really like wearing a facemask. I don't want to wear a facemask. Everyone's saying that I should wear a facemask,'" Lankford said. "Their question is, 'Is there someone that could actually arrest me because I don't wear a facemask?'"
"Or a company says, 'This is going to be our uniform for a period of time, that part of our uniform is going to be we're going to wear a facemask.' How should people address that? What are the legal parameters there?" Lankford asked.
"The workplace protections are different than what a state or local government can do. Employers are not restricted by, say, the First Amendment," Dreiband explained to Lankford. "Employers have much broader latitude under the Constitution than do state or local governments."
"The powers of state and local governments are more restricted by protections in the Bill of Rights, and other federal laws, and the Constitution," Dreiband said.
Lankford went on to ask what powers governments have to curtail religious services.
"Can a state or a local entity step into a church situation and say, 'nope, you can't meet as a church,'" Lankford asked.
"It depends," Dreiband said. "It is possible as long as the restrictions are temporary and are applied in the same way to similar, non-religious gatherings."
Dreiband said that the Justice Department is under instructions from Attorney General William Barr to pursue policies like those displayed recently in Norman, where a federal prosecutor applied pressure to Mayor Breea Clark to ease restrictions on in-person worship services.
"I would encourage the listeners to reach out to United States Attorneys in Oklahoma or elsewhere and express their concerns" about unreasonable limits on in-person worship, Dreiband said.
Lankford devoted the last portion to what he called the "big topic" of contact tracing.
"What I've heard in the national media is that China does a really good job of this, and South Korea does a really good job of this," Lankford said. "They can track using their phones and they can trace everywhere that they've been and they can go talk to everybody that they've talked to because the Chinese government knows each citizen and who they've talked to and where they've been because they track all their citizens every day, all day long."
"We are a free country," Dreiband responded. "It's not entirely clear to me that massive intrusion into peoples' lives would be permitted by the Constitution. But if it comes to that, we would have to look at that and make a judgment at that point."
"There's no push in Congress to be able to do that type of tracing," Lankford conceded, but still used what he claimed were media reports calling for such a system to ask rhetorically: "Do you realize what that means and what that looks like in real-life terms? Do we really want any government, whether it's a local mayor, a governor, or the federal government to be able to track every citizen and each person they've talked to?"
Lankford, who said he has begun wearing a mask in public, said that at the beginning of the pandemic, he doubted that Americans would follow public health guidelines like covering their faces if they weren't mandated by law.
"That might happen in Asia or in other places where it's compelled, but Americans won't voluntarily do that," he recalled thinking. "We've all been proven wrong."
"Americans have stepped up and have said, 'I know the right thing to do. I'm going to do that right thing, even though we live as a free people where we're not compelled to be able to do something by the government.'"
According to the federal Centers for Disease Control and Prevention, COVID-19 has killed at least 89,407 Americans and infected at least 1.48 million. The Oklahoma State Department of Health reports at least 5,398 cases in the state, with 288 known deaths.