Long before the pandemic arrived on American shores, there were debates over the politics of mask wearing. More than a dozen states have laws barring people from covering their faces in public, most of them ordinances passed to deter the Ku Klux Klan.
Those laws were suspended, revoked or not enforced as mask wearing in many states became a public health exigency.
But as the pandemic recedes in the country and emergency orders related to the pandemic expire, the question of what to do with the old mask laws is resurfacing.
When Virginia’s coronavirus state of emergency expires June 30, a mask ban from 1950 will come back into force.
The anti-KKK law, which presciently included an exemption for the declaration of a public health emergency, bars “any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer.”
Alena Yarmosky, press secretary for Virginia Gov. Ralph Northam, said in an email that Northam was exploring ways to make sure that the law does not affect people who want to continue wearing masks for health reasons.
“Gov. Northam is committed to ensuring that individuals who are not vaccinated and/or not comfortable going without a mask still have the option to wear one,” Yarmosky said. She did not respond to questions on whether Northam would pursue a legislative change or executive action.
Anti-mask laws have been invoked over the years in a variety of ways. A federal appeals court ruled in 2004 that the New York Police Department was justified in denying an outdoor-rally permit to an organization that called itself the Church of the American Knights of the Ku Klux Klan. The permit was denied on the grounds that participants would be violating the state’s anti-mask law. In 2011, NYPD officers also arrested some Occupy Wall Street protesters and charged them with wearing masks.
The West Virginia Supreme Court in 1996 upheld the use of that state’s mask ban in a case involving an angry parent who attended a school board meeting in a devil’s mask to protest the school’s devil mascot.
And in 2018, police officers in Alabama invoked an anti-mask law to arrest a man after he led a protest against an officer-involved shooting of an African American man.
An article in the California Law Review published in November listed 18 states that had anti-mask laws predating the pandemic.
New York’s 1845 law, the oldest anti-mask law in the country, was repealed in May 2020. The law, which made an exception for “a masquerade party or like entertainment,” was passed during an armed uprising by cash-strapped wheat farmers who disguised themselves as Native Americans during protests over feudal rent arrangements.
The anti-mask law in Alabama, which dates to 1949 and was spurred by outrage over a dawn raid by three dozen Klansmen on an interracial Girl Scout camp, bars a masked person from loitering in a public place. It makes exceptions for masquerade parties, parades, and religious, educational or historical “presentations.”
Alabama Attorney General Steve Marshall in April 2020 issued an opinion that said the law’s description of “being masked” would not include wearing a medical mask that covers only the nose and mouth.
Rob Kahn, a law professor at St. Thomas University in Minneapolis and an expert on anti-mask laws, believes many of the laws are obsolete. But repealing them might have been easier before the pandemic, he said, before masks became such a political lightning rod.
Kahn said he did not know of any cases of coronavirus anti-maskers advocating to keep the old anti-mask laws. But he hypothesized that keeping them might be popular with the sizable number of voters who now think of masks as symbols of government overreach.
“I definitely think there will continue to be a difference of opinion, a divergence over masks,” Kahn said. “But hopefully the conflicts that come up will be resolved peacefully.”This article originally appeared in The New York Times.