This Massachusetts town tried shutting off some residents’ water to combat COVID-19, but that’s unconstitutional

Attempting to prevent the spread of COVID-19 infections, officials in the town of Salisbury, Massachusetts, recently deprived seasonal homeowners of the right to receive running water in their homes. The reasoning was that if these homeowners couldn’t access the town’s public water utility, they wouldn’t return to Salisbury for the vacation season and bring the virus back with them.

But town officials, in their haste, failed to account for the impact of the shut-off order on property owners’ constitutional right to due process and the rule of law. So Pacific Legal Foundation filed a letter with the town manager explaining the constitutional problems with the order. The message was received: A few days later, officials allowed the order to expire without being renewed.

Due process of law is a bedrock principle of free societies dating back to the days of Magna Carta. As the U.S. Constitution’s Fifth and Fourteenth Amendments states, Americans cannot be deprived of life, liberty, or property without due process of law. And there are few rights more fundamental than the right to inhabit one’s private house. Denying access to water with an eye toward keeping people out of their homes, as Salisbury hoped to do, clearly violates that property right.

This is not to say that a town can never turn off a citizen’s water. For example, perhaps an occupant has refused to pay their bill or is using their property in a way that could harm the town or water supply. But when a property right, such as the right to receive running water in one’s home, is violated, the government needs to follow certain procedures. These include giving fair notice to the affected parties and then providing a fair opportunity for those parties to challenge the order before a neutral judge.

Thus, when Salisbury passed a law restricting access to water without providing any procedures for individualized notice or hearings, it jumped the gun—and the Constitution.

Too often, cities and towns rush to pass laws in an effort to do something, anything, in the face of a crisis, with little to no consideration for how those laws might deprive people of their liberty or property. Whether it is Salisbury taking away people’s water or Baltimore engaging in mass surveillance, it’s unconstitutional when governments violate people’s rights without providing any process for recourse.

That’s why Pacific Legal Foundation intervened. In addition to the burdens on the due process of law, the town’s order also conflicted with another right defended by the Constitution that resides in the Equal Protection Clause of its Fourteenth Amendment. While that Amendment’s “Due Process Clause” protects against arbitrary deprivations of life and liberty on an individualized basis, the Equal Protection Clause protects Americans against arbitrary laws themselves. And when Salisbury removed access to water only from seasonal homeowners whose lines were already disconnected, it trod into dangerous constitutional territory.

Under the Equal Protection Clause, a law that treats people who are similarly situated in different ways sets off constitutional alarms. Perhaps the most obvious example of this is racial segregation in public schools—the government can’t use an arbitrary characteristic like skin color to determine the level of education a student receives.

But any law that treats people differently for arbitrary reasons is unconstitutional. The Salisbury water shutoff order is a good example. Because the order applied only to seasonal homeowners who disconnected their water lines during the off-season for vacation rentals, it singled them out for separate treatment without any reasonable policy-based distinction.

Moreover, it’s not even clear that denying seasonal homeowners access to city water would have helped to slow the spread of the pandemic. In fact, because seasonal homeowners who leave their water connected can continue to rent out their properties to guests during the off-season, it’s likely their properties would present a greater risk of spreading COVID-19 by drawing outside renters from around the state or country to Salisbury.

Officials offering legal responses to the challenge of the COVID-19 pandemic are still required to consider constitutional protections for liberty and property. While it is reasonable for officials in towns like Salisbury to act in ways that protect their residents against the spread of disease, the laws they pass must also respect the constitutional rights of those residents. Respecting due process, and rationally considering the effects of laws before they are enacted, will go a long way toward protecting both lives and liberties.