New Jersey Republicans filed a lawsuit Thursday challenging the constitutionality of Gov. Phil Murphy’s executive orders that have shut down portions of the economy for more than two months in response to the public health risks posed by the novel coronavirus.

The lawsuit, which was filed in state Superior Court in Cape May County, said the shutdown orders violate equal protection and due process in part because some stores deemed essential have been allowed to stay open while others have been required to close since mid-March.

“Instead of being guided by science, the governor chooses to hide behind it. He’s closed his eyes and ears and ignored New Jersey’s cries for common sense,” said state Republican Party Chairman Doug Steinhardt.

“When you classify businesses as essential and nonessential, which you have here, you turn the right to private property into a privilege,” Steinhardt said. “And when you do that arbitrarily and capriciously, you create the situation you have here in New Jersey, where your neighbor can earn a living simply because of where she works or for whom, and you can’t.”

State Sen. Michael Testa, R-Cumberland, who is among the attorneys who filed the lawsuit, said the orders represent governmental overreach.

“Unfortunately, Gov. Murphy, in an act that quite frankly is not backed by science at this point, it’s not backed by common sense at this point, has picked winners and losers,” Testa said.

“Big-box stores such as Lowe’s, Home Depot, Dollar General, apparently you’re not able to contract the COVID-19 virus in one of those big-box stores,” he said. “But the small mom-and-pop shops that are the backbone of our economy, not only here in New Jersey but the economy of the entire United States of America, is being strangled.”

Murphy has taken steps to gradually reopen economy activity, such as allowing nonessential retail businesses to have curbside pickup. Elective medical procedures can begin again next week. He said more announcements are expected soon, perhaps on Tuesday.

“We make the decision on what’s essential and nonessential based on data, science, facts, health and a big input from the women to my right and their colleagues,” Murphy said, referring to Health Commissioner Judith Persichilli and state epidemiologist Dr. Christina Tan.

“I’m sorry if folks don’t like the definitions, but the fact of the matter is they’re quite consistent, by the way, in terms of essential/nonessential that has been designated nationally, as well,” Murphy said.

“And we’re going to continue to try to open these up. We’ve gone for nonessential with curbside pickup. We know that that’s not a full loaf, but it’s a part of the loaf,” he said. “We’re going to try to continue to open things up assuming the health metrics and indicators continue to warrant that.”

The NJGOP is joined as plaintiffs in the lawsuit by barbers, horse trainers and brew pub owners from Cape May, Cumberland, Hunterdon and Sussex counties.

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Michael Lavery, the attorney for the NJGOP, said Murphy’s orders violate the equal-protection and due process guarantees of the state constitution. The lawsuit seeks a declaration that invalidates portions of the executive orders and enjoins any future orders that violate those guarantees, Lavery said.

“There’s a balancing test under the constitution, so you have to balance the interest of the government to keep the people safe versus the private property interests of these small business owners,” Lavery said. “That’s where the dispute is. There’s no question that he can enact certain regulations. But you have to weigh that against the private property interests of the citizens that are being affected by it. And that’s where the problem is.”

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Michael Symons is State House bureau chief for New Jersey 101.5. Contact him at

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