Yes, New York Can Limit Gatherings in Private Homes; Courts Have Upheld, Even Imposed, Restrictions on Activities in Homes
Limiting Gatherings In Private Homes
WASHINGTON, D.C. (November 13, 2020) - Although New York State has just limited private, at-home gatherings - including holiday celebrations - to only 10 people, many are arguing that it's illegal to regulate activities regarding family members in their own homes.
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But, says public interest law professor John Banzhaf, that's clearly wrong, because governments already impose many restrictions upon activities involving family members in the privacy of their own dwellings, and smoking is a prime and well established example.
Some at-home family activities are limited by criminal codes, and violations can even lead to arrest. Examples include spousal rape, domestic violence, child abuse (sexual or otherwise), storage of explosives (including LP gas tanks) and inflammables, having unsafe wiring, smoking marijuana (in some states), harboring dangerous animals, and many other activities.
Additional activities which are regulated to protect children include failing to have a functioning refrigerator, imposing corporal punishment which is too strict, engaging in sexual activities in their presence, not providing adequate and acceptable sleeping accommodations, exposing them to dangerous chemicals in the air or otherwise, etc.
Restrictions On Smoking
Smoking, however, provides a prime example about how far restrictions on even every day activities can be imposed to protect health. While it was once argued that a man's home was his castle, and therefore smoking in a private home cannot be prohibited, legislatures, regulatory agencies, and courts have all rejected that unsound concept and analogy.
For example, judges in the great majority of states have issued orders prohibiting smoking in private homes where it is necessary to protect the health of children involved in custody disputes or shared custody agreements, notes Banzhaf, who helped obtain a number of them for nonsmoking parents. Sometimes the ban on all smoking begins 24 or even 48 hours before a child arrives.
At Banzhaf's urging, many states now also ban smoking in homes where foster children reside.
Going even further, Prof Banzhaf helped obtain orders prohibiting persons from smoking in their own apartment or condos if the smoke drifted into other dwellings, or was exposing nonsmokers through a common ventilation system.
And, of course, smoking is often prohibited in private dwellings in both public and private housing, not to mention also even in hospitals or asylums where persons desiring to smoking are not permitted to step outside and do so.
In short, suggests Banzhaf, governments have broad powers to regulate conduct to protect the public health, even when the conduct occurs in private dwellings.
And since the deadly risks of exposure to the coronavirus are much greater than similar exposure to secondhand tobacco smoke, especially in the small amounts which occur when smoke travels through cracks or through a common ventilation system into another apartment or condo, the legal authority of governments to regulate conduct in private homes would logically be much greater, he argues.
He also notes that if a person invited to a family or other gathering of more than ten people in New York contracted the virus as a result, he could sue the host for violating the law, which in this case sets the standard of care which the court would likely direct the jury to apply in deciding the case and rendering a verdict for damages.