From wearing masks to avoiding crowds, we’ve made significant life changes to limit the spread of the novel coronavirus. Through this effort, we’ve sacrificed several traditions we once took for granted. These include everything from Easter church services to Independence Day parades.

 

Next up? Halloween. While factors such as costume-based masks and outdoor trick-or-treating seem to pave the path to going all-out with pandemic era celebrations, fears about holiday-induced transmission linger.

 

Several localities are considering restrictions. In Los Angeles County, for example, most traditional Halloween activities were temporarily banned. The county’s Department of Public Health has since eased up while continuing to recommend against carrying out typical Halloween festivities but similar restrictions may follow elsewhere.

 

Can states and municipalities really cancel our favorite spooky, treat-filled holiday? We explore the controversy below.

 

The legality of canceled holidays

This is far from the first time that banned holiday celebrations have received pushback during the pandemic. The complaints began early on, with many people protesting their inability to attend church for Easter. At the time, several cited fears about limits being placed on their First Amendment rights. However, while such restrictions would be problematic under ordinary circumstances, the Supreme Court has upheld them in the context of the pandemic. 

 

Halloween differs from Easter in that it is not viewed as a religious tradition. While it precedes the Christian feast of All Hallows’ Day, it’s currently regarded as a secular holiday. For this reason, protests against limitations on Halloween activities are unlikely to hold sway on the basis of religious freedom.

 

Other skeptics have protested COVID-related restrictions based on the constitutional right to assemble. While this argument has produced fewer legal cases than religious complaints, it remains a considerable source of concern for those eager to resume gathering in groups.

 

Most cases related to freedom of assembly are unlikely to succeed based on the precedent established in Jacobson v. Massachusetts. This Supreme Court decision ruled individual liberty should not be absolute, as the obligation to safeguard the community may, “under the pressure of great dangers,” validate the need for certain restrictions. Based on this ruling, the great danger of COVID-19 should be sufficient for restrictions on Halloween gatherings.

 

What to expect this Halloween 2020

The CDC is expected to release Halloween guidelines in the near future. Until then, local recommendations will vary considerably based on existing state policies and the severity of the pandemic in specific regions. Many states have already banned large gatherings, making it difficult to legally attend the packed parties that costumed adults once enjoyed.

 

Trick-or-treating will likely remain legal in most states. While some risk can be expected as children go door-to-door, this will naturally be mitigated by the outdoor nature of the practice. Further protection can be achieved by wearing masks and spreading out candy rather than keeping it in a single bowl.

 

Should local government agencies impose restrictions, they will be valid on a constitutional basis. The situation will likely evolve alongside case numbers. Pay close attention to local guidance as you make difficult decisions about how — and whether —you should celebrate this beloved holiday.

 

Additional resources:
Tips to safely trick-or-treat

Tips for a safe, spooky Halloween (without the lawsuit)

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