By Guy Page
A Christmas tree lighting in the tiny town of Stamford has stirred up concerns about Covid-19 safety and constitutional freedom in Vermont government, state police, and media.
On Dec. 3 the Stamford selectboard defied Gov. Phil Scott’s Covid-19 emergency orders by not canceling a Dec. 4 public gathering: the traditional family-friendly lighting of the town Christmas tree in front of the local elementary school, complete with wagon rides, carolers singing “Jingle Bells,” and doughnuts, hot cocoa and marshmallows. It was scheduled before the governor issued his holiday restrictions on outdoor gatherings.
The Dec. 3 discussion got particularly lively when Rep. Laura Sibilia (an independent legislator representing the “blue” voting, Bennington County towns of Stamford, Readsboro, Searsburg and the more “red” Windham County towns of Dover, Somerset, and Wardsboro) offered to invite state officials from Montpelier to explain the governor’s policy to the selectboard.
No way, selectboard member Dan Potvin – manager of the family business, Eagle Lumber – told Sibilia, as can be heard on this VPR recording (beginning at about three minutes, 30 seconds):
“Laura, you took an oath to uphold the Constitution, I would imagine, and you guys are running over it along with the governor.”
Replied Sibilia: “Absolutely not, sir….If you believe that is the case, you need to go to the courts.”
“I’m telling you!” Potvin interrupted. “I’m telling you to tell your comrades when you’re up there that we’re not going to put up with it down here.” The rest of the board agreed with Potvin that the tree lighting must go on. The following night a few dozen townspeople appeared, mostly wearing masks. Santa drove a tractor, people sang ‘Jingle Bells,” the lights were turned on, and in general everything went according to schedule.
“Down here.” Those two words have a particular political meaning in Stamford, a Bennington County town of 813 souls on the Massachusetts state line. The town was founded in 1753 by NH Gov. Benning Wentworth as one of the ‘Hampshire grants.’ It’s one of the oldest towns in Vermont. Its founding predates Vermont statehood, the American Revolution, and even the start of the French-and-Indian War (1754). Today, many citizens and elected officials believe – not without reason – that the needs of this distant, rural poor county are all but forgotten by officialdom. Neither does it share the politics of Montpelier and the Chittenden/Washington county power corridor – or indeed, much of the rest of Vermont. Stamford, Readsboro to the east, Woodford to the north, and Searsburg to the northeast comprise a politically “red” enclave among the Vermont sea of blue. Relatively speaking, it’s Trump country. In November President Trump won every town.
However, the internet between Montpelier and Stamford works just fine. The Vermont State Police became involved after someone reported the scheduled event on the State of Vermont “ratline,” a/k/a the Department of Public Safety’s Health & Safety Compliance Reporting Tool. As reported by Vermont Daily in April, complaints submitted to the webform are vetted and, if necessary, directed to the appropriate agency.
Vermont State Police spokesperson Adam Silverman said today the contact with Stamford was purely educational: “VSP received reports regarding the event through the Department of Public Safety’s Health & Safety Compliance Reporting Tool and via a media inquiry. We spoke with the town clerk to provide educational guidance on the governor’s executive orders, which is in line with our general enforcement posture of reaching out for educational purposes when we are made aware of situations.”
The police have the option of taking more stringent enforcement measures, including reporting the event to the State’s Attorney, if repeated violations occur.
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Spoken in anger or not, Potvin raises an issue many thoughtful Vermonters have been asking: is there sound constitutional basis for the governor’s broad-reaching exercise of emergency powers limiting free exercise of the First Amendment right “peaceably to assemble” and other specifically-protected rights?
Supporters point to the 1905 U.S. Supreme Court decision, Jacobsen V. Massachusetts, in which the court compelled vaccination during a pandemic, barring an acceptable exemption. But the current Supreme Court may not accept Jacobsen as a catch-all rationale for emergency powers.
In the Nov. 24 decision throwing out NY Gov. Cuomo’s pandemic-related restrictions on freedom of religion (another explicit First Amendment right), Associate Justice Neil Gorsuch wrote: “Jacobson hardly supports cutting the Constitution loose during a pandemic….Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.”
Concern about the protected practice of “textually explicit” First Amendment rights such as peaceable assembly, freedom of speech, and freedom of religion has prompted the organization of a “FirstAmendmentFest” rally noon, Friday Dec. 18 on the Vermont State House lawn.