Can Local Governments Require Mask Wearing?

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By: Bill Henry
PublishedAug 18, 2020
2 minute read

Many medical experts and researchers say wearing a face mask in public is a powerful weapon in the fight against the COVID-19 pandemic. However, many people question whether the government can require them to wear a face mask in public.

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Do You Have to Wear A Mask in Public?

People across the country question whether it is constitutional for state and local governments to require people to wear a face mask in public.

This article offers a legal analysis about the constitutionality of face mask laws.

Does a Mask Law Violate Your Rights?

The U.S. Constitution and the Tenth Amendment expressly reserve certain rights for states and local governments to make laws.

Public Safety

States and local governments have the power, under the federal constitutional design, to make laws about public safety, so long as they are not unconstitutional.

Your government has the right to make laws for the general public’s welfare. In the case of the COVID-19 pandemic, this is wearing a mask in public. The general welfare is public health.

Data Backs Law

There is data to suggest that wearing a mask reduces the spread of a very contagious virus. That’s a public health concern.

Therefore, the power to create such a law is vested in these local governments, unless there is a constitutional violation or another issues that makes the law unconstitutional.

Is there a First Amendment Problem?

Some people may try to challenge a mask requirement, saying it violates their First Amendment rights, or that perhaps the law is unreasonable government intrusion.

Facing a Constitutional Challenge

The mask requirements will survive those challenges. Even if the law contains criminal penalties, it will withstand the challenge because there is a rational basis for it: public health. 

Additionally, the law will pass constitutional muster because of the data and evidence that suggests wearing a mask in public reduces the spread of the virus.

Consequences for Mask Violation 

Some people are angered by the possibility of receiving a citation for breaking the mask law. In most cases, not adhering to the law is a municipal code violation.


In Denver, every municipal code violation carries the same maximum fine and the same maximum jail.

If someone is issued a citation for not wearing a mask in public, a judge probably will not send them to jail.

While a municipal code violation can carry jail time, breaking this law will likely result in a fine.

How Someone Can End Up in Jail

Now, that is not to say that someone will never go to jail for violating a public mask law. People who are repeatedly cited for refusing to obey the mask ordinance have a greater chance of being locked up for it.

Can a Business Turn You Away?

Another question on your mind may be whether a business can refuse you service if you are not wearing a mask.

The U.S. Constitution protects people from government action. A private business is not a government actor.

In short, the answer is, yes, a business can ask you to leave their establishment for any reason – including not wearing a mask – as long as it is not prejudicial.

Can You Fight It?

Some may declare, “The business is being prejudicial against me because I won’t wear a mask.”

Here’s the issue with that argument: people who decline to wear a mask in public would not typically be considered a “protected category.”

The protected category is reserved for individuals who are traditionally discriminated against.

What About a Health Problem?

You may have some sort of claim that you are in a protected class if you have a health issue where a mask could be problematic.

The Takeaway 

In general, though, a business can deny you entry, or ask you to leave, if you refuse to wear a mask in public. Doing so is not unconstitutional because a business is not the government. 

While a mask ordinance may frustrate you, the laws are constitutional; a claim stating otherwise probably won’t get very far.

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