The statewide stay-at-home order that is in effect until April 11 would likely survive a legal challenge based on the emergency it is designed to address, former Colorado solicitor general Fred Yarger said on Thursday.
Yarger, speaking on a webinar hosted by Colorado Christian University’s conservative-leaning Centennial Institute, explained that Gov. Jared Polis relied on statutory authority and the Constitution’s delegation of powers to the states in issuing his order, and that courts are reluctant to second-guess restrictions on people’s rights to gather during emergencies.
“We’ve already abridged the rights of people to assemble for religious purposes and clearly we’re abridging the right to gather and speak,” Yarger said. However, in his opinion, “the courts are going to be okay with that for as long as the emergency is real.”
He added that there is not much case law on the subject, given that emergency declarations typically extend to natural disasters like floods and fires instead of pandemics.