Fifth Circuit Rebuffs Tanning Business Case Against COVID Shutdown

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit rejected claims by a tanning business that COVID shutdowns violated its equal protection rights and amounted to an uncompensated taking.

The case, Golden Glow Tanning Salon v. City of Columbus, Mississippi, arose when Columbus ordered a seven-week shutdown of certain businesses in the early days of the COVID pandemic. Golden Glow sued, arguing that the shutdown violated equal protection and constituted an uncompensated taking.

The Fifth Circuit rejected both claims. The court applied rational basis review to Golden Glow's equal protection claim, and concluded that Columbus's action was reasonable, even if a little both over- and underinclusive. As to takings, the court rejected Golden Glow's claim that the shutdown effected a per se taking, because Golden Glow failed to demonstrate that the shutdown "rendered the entire property 'valueless.'"

Judge Ho concurred, and pitched a case for the right to earn a living as a fundamental right. Judge Ho argued that the right "to pursue callings" has even better historical foundations than other unenumerated fundamental rights.