More than two weeks after Dr. Travis Riddell sent his proposed mask order to the state for approval, it is still in limbo.
As Teton District health officer, Riddell needs state approval to enact the mandate requiring face coverings in most public places. Originally he had hoped to have it in place for the Fourth of July weekend, having sent it in June 30, but State Health Officer Dr. Alexia Harrist and the Wyoming Attorney General’s Office asked for some changes.
Riddell sent a revised order to the state July 7. Since then it has sat on Harrist’s desk, figuratively anyway. Teton County Chief Deputy Attorney Keith Gingery, who helped Riddell make changes, thinks the order is now legally sound, meaning the state’s calculus would now be focused on whether it is necessary.
“We have it in the format, at least, that they want,” he said Monday.
Riddell’s proposed order says face coverings would be required in most indoor public spaces and businesses. It has a host of exceptions, including for people who have medical reasons not to wear a mask or those who are eating in restaurants and can maintain social distancing.
In general the changes are meant to make the order more legally defensible and stronger against charges of being government overreach or unconstitutional. Most are straightforward and bring the county order in line with state or federal authority.
The first change was that the new version specifically states that the rule doesn’t apply to state or federal buildings, which aren’t under the county’s purview.
The second is that people working out in gyms wouldn’t be required to wear them, which jibes with the state health order allowing gyms to operate.
Third, if customers claim to need a medical exemption to the order, they now do not need to provide documentation of that need.
The fourth change exempts people at religious gatherings. Churches could enact their own mask rules, but the state’s public health orders exempt religious gatherings, so the county’s must as well.
Freedom of religion is interwoven with the laws of the United States, but it’s unclear if requiring mask wearing at religious gatherings would be unconstitutional.
“The religion would have to argue that it’s necessary for the religion” to not wear masks, said Leslie Francis, a professor of medical law and bioethics at the University of Utah.
Even so, the state and county are giving religious liberty a wide berth.
One change is slightly less clear on what legal need it fulfills, because state and local authorities do have lots of latitude when it comes to crafting such mandates.
“The state has a compelling interest in preserving life,” Francis said. “And it can have a regulation that’s narrowly tailored to preserving that compelling interest.”
That legal authority can also refer to local government officials, explaining why the Jackson Town Council also has the statutory ability to pass a mask ordinance within town limits. Francis pointed out a precedent-setting case from 1905, Jacobson v. Massachusetts, in which the U.S. Supreme Court ruled Massachusetts could enact a vaccination order with a penalty during a smallpox outbreak.
Riddell’s original order included a stipulation that people over the age of 2 wear masks. Under the precedent set by the Jacobson case, that would be legal, even if it seems difficult to make a 3-year-old wear a mask.
However, the state asked him to change it, even though the Health Department website points to guidance from the Centers for Disease Control and Prevention that says anyone over the age of 2 should wear one.
“It is important to recognize the difference between recommendations and a legal order associated with penalties,” Health Department spokeswoman Kim Deti wrote in an email. “There were concerns over enforcing orders for minors, especially in the case of young children.”
Riddell’s new order says minors, so anyone under 18, do not need to wear masks, though it is recommended. Francis called that a “mistake” because teenagers can be vectors for the disease just as much as adults.
She stressed that requiring kids to wear masks, though perhaps not as young as 2, would be completely legal and help slow the outbreak. But Teton County removed children from the order altogether, Gingery said, to alleviate state worries.
Despite the changes, Riddell is still waiting on his answer.