Religious liberty

Ninth Circuit Rejects Religious Freedom Challenge to California Closure, One Judge Dissents

A short majority opinion, and a long dissent.

|The Volokh Conspiracy |

From South Bay United Pentecostal Church v. Newsom, decided yesterday by Judges Barry Silverman and Jacqueline Nguyen:

This appeal challenges the district court's denial of appellants' motion for a temporary restraining order and order to show cause why a preliminary injunction should not issue in appellants' challenge to the application of the State of California and County of San Diego's stay-at-home orders to in-person religious services. Appellants have filed an emergency motion seeking injunctive relief permitting them to hold in-person religious services during the pendency of this appeal….

We conclude that appellants have not demonstrated a sufficient likelihood of success on appeal. Where state action does not "infringe upon or restrict practices because of their religious motivation" and does not "in a selective manner impose burdens only on conduct motivated by religious belief," it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a "[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." …

Technically, the majority opinion was just considering the likelihood of success on appeal, but the majority seem to have reached the merits and decided that the appellant's argument was substantively unsound. Judge Daniel Collins dissented, also reaching the merits:

I conclude that Plaintiffs have established a very strong likelihood of success on the merits of their Free Exercise claim….

As a threshold matter, the State contends that, in light of the ongoing pandemic, the constitutional standards that would normally govern our review of a Free Exercise claim should not be applied. "Although the Constitution is not suspended during a state of emergency," the State tells us, "constitutional rights may be reasonably restricted 'as the safety of the general public may demand'" (quoting Jacobson v. Massachusetts (1905))…. As the State sees it, there is no "reason why Jacobson would not extend to the First Amendment and other constitutional provisions" (emphasis added).

I am unable to agree with this argument, which seems to me to be fundamentally inconsistent with our constitutional order. Cf. Sterling v. Constantin (1932) ("If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases[.]")…. Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards…. Jacobson merely rejected what we would now call a "substantive due process" challenge to a compulsory vaccination requirement, holding that such a mandate "was within the State's police power." Jacobson's deferential standard of review is appropriate in that limited context. It might have been relevant here if Plaintiffs were asserting a comparable substantive due process claim, but they are not.

Instead, Plaintiffs assert a claim under the Free Exercise Clause, whose standards are well-established …. Jacobson had no occasion to address a Free Exercise claim, because none was presented there…. Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right; on the contrary, Jacobson explicitly states that other constitutional limitations may continue to constrain government conduct. See 197 U.S. at 25 (emergency public health powers of the State remain subject "to the condition that no rule … shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument")….

{Notably, the State does not cite or rely upon the circuit court decision that most directly supports its reading of Jacobson, which is In re Abbott (5th Cir. 2020). For the reasons stated, I am unable to agree with the Fifth Circuit's conclusion that "Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency."}

In addressing a Free Exercise claim under Lukumi, the first question is whether the challenged restriction is one "that is neutral and of general applicability." … [W]here a regulation's operative language restricts conduct by explicit reference to the conduct's religious character, it is not facially neutral. Because the restrictions at issue here explicitly "reference … religious practice, conduct, belief, or motivation," they are not "facially neutral."

In framing its restrictions in response to the pandemic, California did not purport simply to proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space. Instead, Executive Order N-33-20 presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities. In announcing its Reopening Plan, the State has adopted a phased approach that will progressively add more and more exceptions to the baseline stay-at-home prohibition by designating additional specific categories of activities that, in the State's judgment, do not present an undue risk to public health.

As set forth by the State, the four-stage Reopening Plan assigns "retail (curbside only), manufacturing & logistics" to the initial portion of "Phase 2," and in-store retail, "child care, offices & limited hospitality, [and] personal services" to a later portion of Phase 2. (On May 20, 2020, San Diego County was given approval to begin this later portion of Phase 2; it aims to promptly reopen both dine-in restaurants and in-store retail businesses.) By contrast, "religious services" are explicitly assigned to a "Stage 3" that also includes "movie theaters" and other "personal & hospitality services." All reopenings under the Plan are subject to detailed, activity-by-activity State guidance that sets forth the specific actions that each activity (such as "manufacturing" or "warehousing facilities") must take (e.g., use of face coverings, social distancing, sanitation, and employee training) in order to reopen, and to stay open.

By explicitly and categorically assigning all in-person "religious services" to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services—the State's Reopening Plan undeniably "discriminate[s] on its face" against "religious conduct." Although the State insists that it has not acted out of antipathy towards religion, the "constitutional benchmark is 'government neutrality,' not 'government avoidance of bigotry.'" Because the Reopening Plan, on its face, is not neutral, it is subject to strict scrutiny….

Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi's additional requirement that the restrictions be "of general applicability."

Under California's approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one's conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a "generally applicable" prohibition.

The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, "religious services" have not made the cut. I am at a loss to understand how the State's current maze of regulations can be deemed "generally applicable." "At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy." …

The State contends that its plan is generally applicable because it assertedly classifies activities neutrally, in accordance with the State's sense of their perceived risk. But that is not how the Reopening Plan works. Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person "religious services"—merely because they are "religious services"—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct….

[T]he Reopening Plan's treatment of religious services [does not satisfy] strict scrutiny…. The State's undeniably compelling interest in public health "could be achieved by narrower [regulations] that burdened religion to a far lesser degree." As Plaintiffs have reiterated throughout these proceedings, they will "comply[] with every single guideline that other businesses are required to comply with." In their papers in the district court, Plaintiffs provided a list illustrating the range of measures they are ready and willing to implement on reopening, including spacing out the Church's seating, requiring congregants to wear face coverings, prohibiting the congregation from singing, and banning hugging, handshakes, and hand-holding. By regulating the specific underlying risk-creating behaviors, rather than banning the particular religious setting within which they occur, the State could achieve its ends in a manner that is the "least restrictive way of dealing with the problem at hand."

The State's only response on the narrow-tailoring point is to insist that there is too much risk that congregants will not follow these rules. But as the Sixth Circuit recently explained in Roberts v. Neace, the State's position on this score illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace: the State cannot "assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings." …

NEXT: Ninth Circuit Reinstates Defamation Lawsuit Over Claim that $750K Painting Was Fake

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  1. GOOD… this can go to SCOTUS, as it should, and Trump can play hardball with California, a state where he isn’t going to get any electoral votes no matter what he does.

    I’m actually glad that the 9th Circus did this because we really need a SCOTUS precedent that this crap is unconstitutional. This is going to happen again — maybe this fall, maybe a few years from now, but like a dog that has learned to kill deer and eaten raw deer meat, now that the fascist bureaucrats have tasted power, they’re going to drink from the chalice again.

    Like the dog who learned how to run deer, they can’t help themselves…

    1. Well said.

      Teach the deer dog to run down petty tyrants, then try them for Just Following Superior Orders as was done at the Nuremberg Trials.

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    2. Judges Barry Silverman and Jacqueline Nguyen have already ruled against the Second Amendment less than 10 days ago:

      https://reason.com/2020/05/15/ninth-circuit-panel-stays-by-2-1-vote-injunction-against-california-ammunition-restrictions/

      I wonder which part of the Bill of Rights will go next.

  2. Next headline: 9th Circuit Back Feeding Christians to Lions

      1. I am insinuating that the 9th Circuit is anti-Christian.

        1. You do realize that the majority’s position is premised on the notion that the shutdowns help save churchgoers’ lives (as well as other lives, not only in their religious communities but disproportionately in those communities)? Now it might still be unconstitutional for various reasons, or perhaps it might be factually mistaken — but the feed-to-the-lions analogy seems even weaker than it normally would be.

          1. The better analogy might be Big Brother, keeping us safe from ourselves.

          2. ” but the feed-to-the-lions analogy seems even weaker than it normally would be”

            Respectfully, no — and I’m afraid I don’t know my theology well enough to explain why. It’s a fair reference.

            1. “I don’t know what I’m talking about . . . but I’m stickin’ to my guns!”

              Well, at least it’s an honest response. And as good a bumper sticker for Trump supporters as anything else I’ve seen for the past 4+ years.

          3. It gets lost on some non-believers that Christians, also while not openly inviting death, do not fear it. For many if going to Sunday services to worship and praise the Lord means they fall ill and die then that is just the way it is meant to be. I don’t know the exact beliefs of this Congregation but they probably don’t need the “help” of Big Brother in saving their human existence. God has already done that for them. Again to many some non-believers (and even some Christians too) this seems like a foolish belief, but it is their sincerely held belief nonetheless.

            1. Perhaps you also need to be kept safe from a religion which glorifies death.

            2. One of the scariest news reports was fairly early on, and was a reporter talking to churchgoers on their way to services. The pastor told them, “The blood of Christ will protect you.” and all the people in the cars were repeating back to the reporter, “The blood of Christ will protect me.”

              This was not a Democrat vs Republican thing. (It was a black church, so it’s reasonable to assume that the vast majority were not Trump supporters.) But it was a science vs superstition thing. And really made me nervous about depending on the common sense of others to keep safe me, my elderly mom, my sickly friends, etc. When people are acting in good faith, but are simply too stupid to act rationally, I would hope that the govt would leave them alone (to the extent their dumb choices hurt only themselves), and jump in with restrictions and regulations (to the extent said dumb choices endanger innocent others).

              1. ” (It was a black church, so it’s reasonable to assume that the vast majority were not Trump supporters.)”

                No it isn’t. Trump has a LOT of support in the Black community.
                Prison reform, economic opportunity are tangible things.

                1. Ed,
                  Can you cite to these polls you’re referring to? I’m happy to cite you to dozens of polls that show Trump struggling to attract more than 15% of the black vote (with many many polls showing 10% or lower).

                  Or were you just giving another version of “Ed’s famous made-up anecdotes”? [Trademark]

                  1. You mean like the polls saying Hillary would win in a landslide?

                    1. Since you’re a Russian ‘bot, and not any type of actual doctor, I will cut you some slack here. When someone asks for a cite to a poll for some crazy proposition you’re claiming; it’s dopey to then dismiss the concept of polling. Far better to just admit, “I have no evidence for what I was claiming . . . I pulled it out of my ass, as I do with most things I claim on this site.”

                    2. It’s called “Social Desirability Bias” but you’d have to take a grad level course in research methods to understand it.

                      Actually no, I can explain it in one sentence: A lot of people intend to vote for Trump but don’t want the hassles of people knowing that — so they lie.

                      It’s also known as the “Bradley Factor” — after Bill Bradly. It was socially acceptable to vote for the Black candidate, so people said that they were going to do so — but didn’t.

                      Another example was David Duke, who ran for President in 1992. He would consistently get 10% or more above what he polled because people didn’t want to admit that they were going to vote for the Klansman, but they were lying — and did vote for him.

                      There’s all kinds of other variance, including how one obtains a sample of “Black” voters and your data is only going to be as good as your sampling. But the bottom line is that most people don’t want hassles so they will tell the “noble lie”, and then in the privacy of the voting booth, vote for whomever they damn well please. Often that is Trump.

                      Remember too that Trump supporters are being physically assaulted — statistically, not many, but it is happening. So if you don’t want “problems”, you don’t tell people your a MAGA man.

                    3. You mean like the polls saying Hillary would win in a landslide?

                      There were no such polls. The polls said that Hillary was ahead by several points… and lo and behold, she won by several points.

                    4. Spoiler alert: everything “Dr.” Ed said here is wrong:

                      Actually no, I can explain it in one sentence: A lot of people intend to vote for Trump but don’t want the hassles of people knowing that — so they lie.

                      Evidence cited: zero.

                      It’s also known as the “Bradley Factor” — after Bill Bradly. It was socially acceptable to vote for the Black candidate, so people said that they were going to do so — but didn’t.

                      Bill Bradley is white. It was named after Tom Bradley. Saying that one is going to vote for X and not following through is the so-called Bradley effect; it is not the same as saying that one isn’t going to vote for Y and then doing so. The Bradley effect doesn’t exist.

                      Another example was David Duke, who ran for President in 1992. He would consistently get 10% or more above what he polled

                      He didn’t. Ed is just fabricating here.

                      Remember too that Trump supporters are being physically assaulted — statistically, not many, but it is happening. So if you don’t want “problems”, you don’t tell people your a MAGA man.

                      More made up stuff, plus I don’t think many pollsters are going around assaulting anyone through the telephone.

                    5. ” you don’t tell people your a MAGA man.”

                      The new slogan is MASA… make America sick again.

                2. “Trump has a LOT of support in the Black community.”

                  As we’ve been told, anyone who supports Trump is not black, by definition.

                3. The Bradley effect was named after Tom Bradley, the African-American mayor of Los Angeles. Bill Bradley is former US Senator and Knicks basketball player and is white.

                  Your political historical knowledge is as accurate as your arguments.

                4. “Trump has a LOT of support in the Black community.”

                  Presumably all his complaining about the “prior administration” keeps them from noticing that he’s blaming all his mistakes and shortcomings on Obama.

                5. ” Trump has a LOT of support in the Black community.
                  Prison reform, economic opportunity are tangible things.”

                  Ah, this explains his pantywaist response to the current rioting.

              2. The virus spreads only by voluntary association. If you meet with someone, you accept the risk of infection. Hence there is no reason for any government regulation pertaining to it.

                1. “The virus spreads only by voluntary association. If you meet with someone, you accept the risk of infection.”

                  How nice, a polite virus that only infects somebody if they invite it in.

                  The thing is, if you do something stupid, and get yourself infected with the virus, all the people that interact with you are also now put at risk of contracting the virus.

              3. As one who was raised as a Catholic this is something I’ve never understood and even as a child made me nauseous at mass. How does the ritual of symbolic cannibalism protect anyone from anything? And don’t get me started on the whole burning frankincense, myrrh, or whatever it was thing, that frequently did make me vomit. I hated the thought of X-mas mass.

                1. If God says you’re gonna get the sickness, you’re going to get the sickness. Trying to use science to understand the sickness well enough to avoid getting the sickness is a direct challenge to God. His will works in mysterious ways. Catholics, of course, are immune to Coronavirus disease. That’s why Italy had such a low infection rate.

              4. The way to protect your elderly mom and sickly friend is to quarantine them.
                Not the entire nation!
                Every healthy person under age 50 has nothing to fear from corona virus.
                There is no reason to impoverish everyone to protect your mom.
                Let her stay indoors.

                1. I was replying to santamonica811

            3. It gets lost on some non-believers that Christians, also while not openly inviting death, do not fear it.

              It is not lost on me. I admire that courage, with a couple of caveats:

              1. They don’t impose that courage on their children.

              2. They don’t force me to be more courageous about death than I prefer to be.

              In cases of likely deadly (for me) contagion I am less courageous, but not less insistent about my own rights. I also oppose any policy predicated on the notion that the public benefit of protecting religiously-inspired Christian courage outweighs the burden of avoidably forcing me and others similarly situated (age, conditions) into indefinite stay-at-home confinement.

              Bottom line: if Christians are going courageously to congregate and spread contagion because God wills it, then the rest of us will have to control Christians sufficiently to prevent that.

              1. lathrop, you’d have a leg to stand on if mortality was much higher. But the mortality here is under 1%.

                At least you put the issue out there. You simply want to control others lives; not save them. You’re the perfect progressive.

                  1. I can see why this fake anecdote would appeal to you.

                1. I don’t put it on progressives per se as there are no shortage of politicians ready to brazenly step in, with the merciful exception of Trump (and contrary to two decades of leftist disasterbation about how it’s the Republican, him or Geo. W., who intends dictatorship, thanks for the idiot opinion, Bill Moyers.)

                  It is good to point out how the death rate in no way justifies what is going on outside the context of not overwhelming hospitals.

                  Some bloggers here have fallen for that bait and switch.

                  1. ” contrary to two decades of leftist disasterbation about how it’s the Republican, him or Geo. W.”

                    Yeah, there’s no way to look at Trump’s demands to use force against peaceful protesters that looks dictatorish. He’s not a dictator, because of his own ineffectiveness, but not from a lack of interest on his part. He wants to hide in the basement bunker if there’s any actual fighting, but he wants to talk tough as long as none of the actual fighting will be done by him. That’s a wannabe dictator, textbook case.

                2. At least you put the issue out there. You simply want to control others lives; not save them. You’re the perfect progressive.

                  That’s an ideological tic, wearing grooves in your brain. Because you can’t get out of those grooves, you don’t notice what most anyone would, that control is not my motivation. My motivation is defensive. Self-defensive, of course, but also in favor of defending not just other people too, but also social structures everyone depends upon, like the economy.

                3. ” the mortality here is under 1%.”

                  Not for all populations, it isn’t.

            4. Then it really sounds like your comment should have been “Ninth Circuit requires Christians to sacrifice to idols rather than be fed to lions.”

          4. Forcibly disarming them can be done with the claim it is saving their lives.

              1. Mine eyes have seen the glory
                Of the coming of the Lord;
                He is trampling out the vintage
                Where the grapes of wrath are stored;
                He hath loosed the fateful lightning
                Of His terrible swift sword;
                His truth is marching on.

                Chorus
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                His truth is marching on.

                I have seen Him in the watchfires
                Of a hundred circling camps
                They have builded Him an altar
                In the evening dews and damps;
                I can read His righteous sentence
                By the dim and flaring lamps;
                His day is marching on.

                Chorus
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                His truth is marching on.

                He has sounded forth the trumpet
                That shall never call retreat;
                He is sifting out the hearts of men
                Before His judgement seat;
                Oh, be swift, my soul, to answer Him;
                Be jubilant, my feet;
                Our God is marching on.

                Chorus
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                His truth is marching on.

                In the beauty of the lilies
                Christ was born across the sea,
                With a glory in His bosom
                That transfigures you and me;
                As He died to make men holy,
                Let us die to make men free;
                While God is marching on.

                Chorus
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                Glory! Glory! Hallelujah!
                His truth is marching on.

                1. Yup, this verse is the one my 4th grade public school teacher absolutely demanded everyone sing:

                  In the beauty of the lilies
                  Christ was born across the sea,
                  With a glory in His bosom
                  That transfigures you and me;
                  As He died to make men holy,
                  Let us die to make men free;
                  While God is marching on.

                  1. So THAT’S why you hate Christianity so much….

                    BTW, you do know that was about ending Slavery — or do you think we shouldn’t have ended it?

                    1. “So THAT’S why you hate Christianity so much….”

                      *I* don’t hate Christianity at all.
                      Some of the people who call themselves Christians, on the other hand…

          5. The churchgoers have the right to decide for themselfes how much risk to take.

            1. Not that I agree with this libertarian logic, but even if I did, the answer would be a firm no, since churchgoers who catch COVID-19 will inevitably give it to others.

              1. Your logic is faulty = …since churchgoers who catch COVID-19 will inevitably give it to others

                1. That is right. When people decide to be reckless in putting themselves in positions where they will catch the disease, their continued pattern of behavior will lead them to spread the disease further.

                  Such people are increasing risk of death or harm to health not only for themselves, but for everyone else.

                  1. Quite the libertarian, I see. 🙂

                    Please explain how the behavioral characteristics of people in a Lowes on a Saturday is somehow different than a synagogue. That is the crux of the issue.

                    1. When I go to Home Depot, I use curbside pickup. I do not understand why people decide to wait in a long line to enter the building. I believe the reason is that many are not really that comfortable with the use of technology. If it were up to me, I would make this method of proceeding mandatory.

                      As to why Lowe’s is essential and a synagogue is not, it seems pretty clear that people still have a need to make home repairs. And that it is safer to perform such repairs on your own rather than have someone enter your home.

                      I have no desire to infringe on anyone’s religious practices. However, those practices must yield to public safety to the extent that they imply unnecessary gatherings.

                    2. Sorry David, but the behavioral characteristics are the same. You have large crowds of people in an enclosed building, with social distancing, masks and enhanced hygiene practices. Great that you practice curbside pickup (really, I don’t want you to get sick), but that is not what I commonly see with my own eyes (in the People’s Republic of NJ, a hotspot).

                      Lowe’s is no more essential than my synagogue. The facts are that our ability to freely exercise our religion is being infringed, has been for some time, and secular behaviors of similar characteristics are allowed. To the extent these are not being treated the same (and allowed) is the crux of the problem.

                    3. You argue that Lowe’s is not more essential than your synagogue.

                      But it is. If your plumbing breaks (and plumbing does break), then what? Some people drink tap water. Being able to flush the toilet is important to not spread disease.

                      How about fixing the air conditioner? How about fixing a problem with your electrical wiring (not recommended unless you REALLY know what you are doing).

                      These are essential.

                      Gathering in your synagogue is NOT.

                    4. If your plumbing breaks (and plumbing does break), then what?

                      Technically, it is illegal to fix it yourself — you are supposed to call a licensed plumber. You’re also not supposed to hire the illegal aliens who hang out in the Home Depot parking lot.

                      Oh, and you’re also supposed to pull a permit, too.

                      How about fixing a problem with your electrical wiring (not recommended unless you REALLY know what you are doing).

                      See above about licensed professionals and pulling permits.

                      You do NOT have a right to do this stuff, QED it is not “necessary”….

                    5. Dr. Ed

                      1st: It depends on the job.

                      2nd: Not only that, plenty of professional plumbers and other people get supplies at Home Depot or Lowes now and then.

                    6. Technically, it is illegal to fix it yourself — you are supposed to call a licensed plumber.

                      What do you get from making up stuff, Ed? Nobody here respects you, so it’s not like you’re convincing people.

                    7. Sorry David, but the behavioral characteristics are the same.

                      Not sure what kind of shul you attend where you go in individually, walk around a giant room staying six feet apart from everyone, and then get out as quickly as possible.

                      I get why people want to open religious services. I do not get why people make stuff up like this.

                  2. David says:
                    “That is right. When people decide to be reckless in putting themselves in positions where they will catch the disease, their continued pattern of behavior will lead them to spread the disease further.

                    Such people are increasing risk of death or harm to health not only for themselves, but for everyone else.”

                    People like health care workers, including doctors, nurses, respiratory therapists, other hospital and doctors’ office staff; first responders including police, fire, EMT; supermarket workers including stock clerks, cashiers, managers; truck drivers, train conductors. And so on and so on. So while David remains hunkered down using curbside pickup for his groceries, he disdains all of these essential and in many cases selfless individuals who allow him to thrive. The elite David Welker, shielded form disease, living on the backs of those he calls “stupid” and selfish.

                    And you know David, if you ever get the disease, when you get it, it will be these stupid, selfish people who treat you, nurse you back to health. Will you even thank them? I doubt it.

                    1. “People like health care workers, including doctors, nurses, respiratory therapists, other hospital and doctors’ office staff; first responders including police, fire, EMT”

                      People like this reasonably expect to be provided with effective PPE to protect themselves and others, which is why they were complaining that they were not.

                2. “since churchgoers who catch COVID-19 will inevitably give it to others”

                  Which part of “communicable disease” confused you? Anyways, the Chinese tried ignoring it and hoping it would go away, and so did President Trump, but reality refused to conform to their preferences.

              2. So, you agree we can imprison you and your family, according to this logic?

                1. I believe that people can be forbidden from spreading the virus and killing people. I do not believe that this requires imprisonment.

                  Lockdowns are both permissible and good policy.

                  1. But if someone else does believe it, like a governor, it’s OK then to imprison you and your family??

                    1. Yes. The governor is elected to make such decisions. The law providing for the governor to respond to emergencies includes criminal penalties for refusal to comply.

                      Disagreement with a governor is ground for recall in California or simply a vote against them at the next election. In the meantime, one still has to comply with laws they disagree with. Especially when, as here, non-compliance can and will increase the risk of death and chronic health conditions in others.

                    2. I don’t recall anybody warning me that I was electing a governor to make decisions about whether everybody in the state could be put in house arrest, and to arbitrarily pick which businesses would be permitted to continue operating, and which would just have to go bankrupt.

                      Indeed, I think we’re going to be mounting a serious campaign here in South Carolina to make sure the state constitution is amended to clarify that governors CAN’T do things like that.

                    3. If no one warned you, you could have looked at the laws on the books.

                      This is why we have law libraries.

            2. “The churchgoers have the right to decide for themselfes how much risk to take.”

              They don’t have the right to decide for other people how much risk to take. This is a communicable disease.

          6. Government shifted the goalposts. It wad about not overwhelming hospitals, causing needless deaths, and not about saving lives from average people. And also during this, keep fragiles safe.

            So they can cram that new idea about general life saving you know wherd. I come to this web site to read of defense against government encroachment of freedom. You’d think this bait-and-switch would have taken more notice here.

            1. The “government” shifted the goalposts?

              Please link to the statement by the government where they declared that saving the lives of “average” people was not a goal.

              1. Please link to where in the Constitution that any goal of the government is saving the lives of “average” people. And please don’t quote the Preamble because that isn’t what it says.

                1. So, according do you, saving lives isn’t a permissible function of government?

                  You are off your rocker. I will not engage.

              2. David, Krayt is exactly right, and your straw man question is ridiculous; while Krayt is correct in saying the government’s initial goal was “not about saving lives from average people,” they never said this explicitly, and lack of that declaration does not refute Krayt’s assertion.

                As an example, the governor of Pennsylvania, Tom Wolf, said on April 2nd on Facebook “Staying home + practicing good health habits = fewer COVID-19 cases at once, more hospital beds and time to treat patients and more lives saved. Please do your part to slow the spread of this illness.” On May 20th, however, he is saying “”It’s going to get down to what the individual citizens of Pennsylvania want to do, and my sense is that it’s going to take — I think what it’s going to take to get people back to big events, what it’s going to take people to get back to shopping, to work, to school is going to be ultimately a vaccine – some assurance that they’re not going to get sick,” Wolf said. “I think in the interim, we’re looking at things we can do to increase testing.”

                Initially there was NO assurance that people weren’t going to get sick, it was about flattening the curve. Now he is requiring a vaccine. That certainly is moving the goalposts. And, Pennsylvania is not alone in this regard.

                1. “They” never said this explicitly? So, in other words, no one with authority said this, but you will take it as some sort of binding social agreement nonetheless?

                  1st: As to the governor of Pennsylvania, I live in California. So, not relevant to me.

                  2nd: As you have acknowledged, there is no explicit statement even by the governor of Pennsylvania that flattening the curve is the only goal. Flattening the curve is NOT an end. It is a means to an end. What is the end? Saving lives and preventing chronic health conditions. You are saying that advocating one approach (one means) to saving lives should be interpreted as implying that no other means will be used? That is just unreasonable. If a governor says we should stop terrorist attacks to save lives, one does not then conclude that this means that we also don’t enforce laws against drunk driving to save lives. I should NOT have to defend the goal of saving lives. And I really should not have to explain this.

                  3rd: You are really SHOCKED that saving lives and preventing chronic health conditions is an on-going goal of government??? I really don’t get it. Perhaps you are from some sort of alien species…

                  1. David, you are being ridiculous. Saying flattening the curve is the goal and then stating you can’t open until there’s a vaccine IS moving the goalposts. Period.

                    Your first point is a complete misreading of what I said.

                    Your 3rd point (which you number “2”) is a ridiculous piece of pretzel logic.

                    Your 3rd point – No, saving lives and preventing chronic health conditions is NOT an on-going goal of government, to the cost of our unalienable rights! Remember, WE are the government, we didn’t turn over all of our power and liberty to some central, totalitarian regime.

                    1. Publius:

                      No, you are being ridiculous. Why did anyone mention flattening the curve as desirable? Was it purely an aesthetic preference so that we could have graphs with flatter lines?

                      It was to keep hospitals from being overwhelmed. But WHY do we care if hospitals are overwhelmed? Is it because overwhelmed hospitals are aesthetically unpleasing?

                      The REASON to flatten the curve is to avoid hospitals from being overwhelmed. The REASON to avoid hospitals from being overwhelmed is to save lives and prevent the pain and suffering of preventable health conditions. And the REASON to save lives and prevent pain and suffering, well that is the END. The other things MEANS.

                      Now you act SHOCKED that, the curve being flattened, that people STILL want to save lives and prevent the pain and suffering of preventable health conditions. Well I am sorry if you were confused about the OBVIOUS goal from the very beginning.

                      Like I said, are you sure you are from planet Earth? Because I am really not understanding… I do not understand why this even has to be explained.

                    2. David, you are not speaking rationally, at all. It seems you can’t differentiate between two different stated goals. I can’t continue this. I recommend you seek psychiatric help.

                    3. One is not a goal, the other is.

                      I am sorry that you thought flattening the curve was a fun exercise for its own sake.

                      Maybe you should have thought about WHY people wanted to flatten the curve and you wouldn’t have been so confused.

                    4. The curve was flattened to ease the demand on available health care resources to a level below maximum capacity. Next question.

                    5. Publius:

                      You need to make the next step. Why do we care if healthcare resources are used at maximum capacity?

                      I will answer the question.

                      Because if not, people will die. And they will end up with preventable chronic conditions. And there will be unnecessary fear, pain, and suffering.

                      You know, to prevent precisely the things we continue the lockdowns to prevent.

                      Get a clue.

                2. “Initially there was NO assurance that people weren’t going to get sick, it was about flattening the curve.”

                  You’d have a point here if “flattening the curve” didn’t literally mean “fewer people are infected with the virus at the same time.”

              3. It never was. Never. This is an addendum. It was justified on terror levels of deaths because of overwhelmed hospitals. Did you not just live through this?.

                And secondly, no, that death rate does not justify this. Or maybe it does. But everyone now just assumes it with no discussion. It’s gonna spread, and that may not be a good thing, but is a necessary thing.

                I don’t have to do your challenged imagined fantasy work in a silly attempt to ignore what I have just said.

                It was about not overwhelming hospitals, and not not about a tiny fractional chance of saving your life. That is added after the fact, which is my point.

                For the 557th time: “So this is how liberty dies — with thunderous applause.” — Senator Padme.

                The bait-and-shift switch in rationale, and the ease of its adoption without question should be scary.

                1. Terror levels of deaths? Oh, I am sorry that you don’t think the number of deaths that we are experiencing now is enough for you to think it matters.

                  Oh, now you are scared? But if LIFE does not matter, what is there to be scared of? If your hypothesis is that preserving life itself is not a worthy goal, how can being scared even be a thing???

                  I don’t get it.

                  You are scared of the wrong thing. You should be scared of COVID-19. Not your inability to get a haircut.

                  1. So according to you, the governor has the legal ability to issue this order and enforce it, and if people think he’s wrong they can recall him. Except they can’t, because the governor has rescinded the “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

                    Somehow doesn’t scan.

                    1. No, Newsome has not rescinded the ability to recall him.

                    2. … and the second sentence Josh? Exactly how does it come about?

                    3. I suspect you are referring to gathering signatures. Where I shop, there are people gathering signatures for ballot initiatives. No one has stopped them.

                2. “For the 557th time: “So this is how liberty dies — with thunderous applause.” — Senator Padme.”

                  If you watched Episode I 557 times, you need to get out of the basement, nerd, and stop basing your worldview on a movie.

                3. “And secondly, no, that death rate does not justify this.”

                  So we should all stop social distancing because it works?

          7. No, its nominally predicated on the excuse that it will save churchgoers lives. The people behind the lockdown have little actual data that it does so, especially since it has been in Cali since at least late Jan, or that the placebo effect of church attendance wouldn’t offset any benefits lockdown might bring. Meanwhile we have Cuomo’s actions which fully demonstrate by politicians in power a willingness to let the oldest population die off and then lie about it until called on the carpet, at which point he continued to lie about it and attempt to blame the CDC when their instructions blatantly contradicted his executive order.

          8. Professor Volokh,

            So, “Throwing someone to the lions” has a long history, and isn’t just used in the physical sense, but also in the sense that you criticize a group severely, or treat them badly, without effectively trying to protect them from this treatment. The historical context are the Christians in ancient Rome, and it fits the current situation.

            In regards to “trying to protect them”…this is a poor analogy, and actually somewhat offensive. Let me give you a counter example, but substituting in other groups, and you can see why this “we’re really just trying to protect them” argument fails.

            African Americans are consistently at a higher risk of infection and death from COVID-19. Because of this, the state of California has mandated that African Americans (but just African Americans) are under a strict stay-at-home quarantine to “protect” them. Any African Americans found outside the home will be arrested and placed in protective surroundings. They will not be allowed to meet in person with their extended family, and these restrictions will last as long as needed, for the length of the epidemic.

            This is required because African Americans are at higher risk of infection and death. Moreover, they are not allowed to take this risk upon themselves, because if infected they will become carriers who could infect non-African Americans, and while people may be able to risk themselves, they are not allowed to risk other people’s safety.

            Now, Professor Volohk, do you believe this argument (which for the record I do not support, nor believe in) would pass muster in any court? Or would it be considered discriminatory and struck down?

            1. A.L. — There is the real life example of AIDS and gay males — and Cuba doing pretty much what you describe.

              1. Your statement seems to suggest that the US should be following Cuba’s lead. How long have you been a Communist?

            2. Wouldn’t the argument against your example be that race is an inherent characteristic, and religion is a chosen characteristic? Not that I disagree with the general thrust of the analogy (which I take to mean that religious gatherings are prohibited on ‘health’ grounds while secular activities with the same behavioral characteristics are ‘essential’ and allowed).

              1. “race is an inherent characteristic, and religion is a chosen characteristic”

                That type of logic gets into an entire series of logical pitfalls regarding protected classes. Do you believe something because you “choose” to, or because you simply believe it and that’s how it is. Extend that to gay rights. Are you gay because you “are” or because you choose to be gay?. Extend that to gender. Are you a woman because you “are” one or because you choose to be one? With surgery these days, you can easily “choose” to be a man or woman.

                And if you’re allowed to discriminate against protected classes based on “choice”, well…

                No, protected classes are protected, regardless about personal opinion as to whether one “chooses” to be in it, or are “inherently” in it.

          9. Perhaps JTD thought “pretext” would be more accurate than “notion.”
            In any event, I certainly hope that was *not* the “notion” that motivated the majority; rather, I would much prefer that the “notion” was that the order would save other people’s lives (those who did not voluntarily take the risk by going to church) through transmission by the churchgoers. That, at least, would be less paternalistic. Although still in need of a justification to explain why that health concern does not require the prohibition of other similar activities.

      2. Professor Volokh:

        The Book of Daniel is in the Old Testament and I believe in the third portion of the Hebrew Bible, but here is the King James version:
        https://www.kingjamesbibleonline.org/Daniel-Chapter-6/

        The larger issue — and this is a Christian reference — the pre-Christian Roman Emperors persecuted Christians, often feeding them to the lions at blood sport events in the Collesium. That’s why Early Christians had to hide in the Catacombs.

        Hence Christians refer to “being fed to lions” as a reference to persecution. I don’t know what the Jewish equivalent is.

        1. I don’t know what the Jewish equivalent is.

          I can tell you. Life as a Jew in the USSR.

          1. Russia was persecuting Jews long before that.

            1. German antisemitism dates back to Martin Luther, who was p*ssed that the Jews didn’t join his religious movement.

              And your point is???

              1. British antisemitism similarly has a long history, See, e.g. the fictional Shylock in Shakespeare’s “Merchant of Venice”.

                You might say European persecution of Jews goes back to the Roman occupation of Israel.

  3. Alternative headline: conservatives come to be really upset about OR vs Smith and Church of the Lukumi Babalu, would probably have just allowed Smith to do peyote.

    If only Exodus 21 had warned them …

  4. The courts say that the closure of churches is required by the deadly nature of the disease. Infection rate is not a reason, although mentioned, because the common cold is highly infectious and no one suggests closing churches during cold season.
    The flu morbidity varies from year to year, but is usually between 0.1 and 0.2. It appears that the coronavirus is going to end up around 0.25 to 0.3, so is the court establishing that an increase of .05 to .1 is sufficient reason to stop religious services? Is there an actual scientific standard, since science is the reason stated for the closures? What is it?
    If you want to sound as if you are being objective in some way, then state the parameters.

    1. The court is confirming a certain playwright’s contention “the law is an ass”.

      1. I prefer a SCOTUS ruling to a Revolution….

        1. Trump won’t let it become a Revolution. He’ll send in the military to keep order, because now he’s our Law and Order President. dun-dun.

      2. “The law is a ass.”

        What’s the opposite of a grammar Nazi? A grammar Patton?

        1. Actually, “the law is an ass” predates Dicken’s character Bumble stating “the law is a ass”

          In fact, ‘the law is an ass’ is from a play published by the English dramatist George Chapman in 1654 – Revenge for Honour:

          Ere he shall lose an eye for such a trifle… For doing deeds of nature! I’m ashamed. The law is such an ass.

        2. According to the BBC (and my 3rd Grade teacher) it’s “an” before words that start with a vowel and are pronounced as such.

          See: https://www.bbc.com/learningenglish/amharic/course/lower-intermediate/unit-8/tab/grammar

      3. He was a novelist.

    2. Even if the mortality rate ends up being the same as seasonal flu, the risk is much greater because we don’t have a vaccine.

      1. That is illogical. Mortality is mortality.

        1. Clarification: If the case fatality rate ends up being the same as seasonal flu, the risk is much greater because we don’t have a vaccine. That is, because there is no vaccine, many more people will be infected with COVID-19 than the flu even though the probability of dying given you are infected may end up to be the same. Moreover, the basic reproduction is likely higher with COVID-19 (between 2 and 3) than it is for seasonal flu (likely about 1.5). So, the mortality rate is higher with COVID-19.

          1. Josh, we don’t even know what percentage of the population has been infected

            And as to the Flu, Woodrow Wilson got it in both 1919 AND 1920.

            1. Not knowing what percentage of the population has been infected is what has lead to a range for the case fatality rate being between 0.1% (comparable to seasonal flu) and 1%. Thus, even if the case fatality rate is on the small end, Woodrow Wilson not withstanding (including whether he got seasonal or Spanish flu), COVID-19 is a much greater risk the seasonal flu because 1) the lack of a vaccine and 2) a greater basic reproduction number.

              1. Vaccine – probably not going to happen. About one in twenty seasonal colds are coronaviruses, so despite enormous financial incentive to develop one (attention libertarians), no cold vaccine has ever been developed. For that matter, “There are as yet no vaccines or antiviral drugs to prevent or treat human coronavirus infections.”(wiki)

                There might be strides over the next decade or century, but a reasonable expectation is slightly improving treatments. Cancer or HIV are decent models for expectations of progress. For the current coronavirus we don’t have a test with better than 60-80% accuracy. Linking basic human rights to a “future solution” that has been studied, tried, and completely eluded solution is lunacy.

                1. The basic problem with producing “a” common cold vaccine isn’t the impossibility of producing a working vaccine against a particular cold strain. It’s that “the” common cold is actually a few hundred different viruses with similar symptoms, and producing a vaccine against several hundred viruses at the same time isn’t feasible.

                  As long as there are only a few Covid-19 strains circulating, it’s a feasible project.

                  Ideally what we need is vaccines against the various strains, and sufficiently localized gene sequence testing to know where each should be distributed. I’ve made this comparison before: Right now medicine is like seismology that only turns on the instruments when buildings start falling, like a weather service that only looks at the wind velocities when tornadoes strike.

                  Medicine needs to become more like the weather service, monitoring infectious disease in sufficient detail to detect new strains as they develop and spread, in near real time. Enormously more testing, sequence the infection every time somebody gets sick enough to interact with a doctor, even collect viruses from the air in public places.

                  1. Good lawyerly nitpicking in order to avoid the point that, with enormous financial incentives, no progress has been ever been made. Perhaps medicine does need to change the way you say, but the task is quite obviously beyond its ability despite current fire-hoses of money.

                    If you persist in your position, you are insane. Denying the reality of the physical world is —not just a sign of, but is— severe mental illness or derangement.

                    1. 1) “Lawyerly” is an adverb never before applied to Brett.
                      2) It wasn’t nitpicking. It was pointing out that your “enormous financial incentive” claim is false.

              2. “Not knowing what percentage of the population has been infected is what has lead to a range for the case fatality rate being between 0.1% (comparable to seasonal flu) and 1%.”

                Also the fact that some people are at substantially higher risk, because of age and/or other medical conditions, and other people are at less risk, because they’re young and otherwise healthy.

      2. If you have been paying attention, you will have noticed that it takes one to two years to develop any vaccine. The flu shot you got in 2019 was for the variety of flu that first appeared in 2017 or 2018 – one which you either avoided for a year or two or already had anyway.
        Lack of a vaccine for any novel flu is the same every year.

        1. JohannesDinkle, due to the urgency associated with COVID-19, your assertion is no longer true. There are six companies in Phase 1 clinical trial with vaccines, seven companies at the pre-clinical stage.

          From Medical News Today, April 17:
          “Prof. Gilbert [a professor of vaccinology at Oxford University’s Jenner Institute in the United Kingdom] believes that the vaccine will be available for general use by the fall, which could prevent a potential second wave of the new coronavirus.”

          That said, a vaccine is not the absolute “thing” that many expect or require. It won’t necessarily totally prevent infection, as is so for the flu vaccine. Some politicians speak as if it will.

          But, “by the fall” is more like seven months, not “one to two years.”

        2. Seasonal flu vaccines work on between 40% and 60% of the population, while only about 10% get the flu.

    3. JohannesDinkle — It appears you are confusing, “morbidity,” (prevalence in a population) with, “mortality,” (deaths in a population). And also doing the figures wrong either way. Your comment presents as motivated reasoning based on an intent to minimize the pandemic threat.

      Problem is, nobody knows what either of those figures will be when the count ends—or perhaps when the year ends, if that is the way we do those statistics. In my Massachusetts town, which is doing notably better than many, prevalence is approaching 0.5% and still rising. In the worst-hit place in Massachusetts—the small city of Chelsea, MA—prevalence is currently approaching 7.0 percent, and also still increasing.

      Prevalence in many towns is now > 1%, with quite a few pushing 2%, and all of them still increasing. By my count this morning, there are 89 towns (most of them above-median in population, by the way) in Massachusetts with prevalence > 1.0%. Statewide prevalence is now at ~ 1.3%.

      The curve of new confirmed infections has lately been downward, but the slope has been so gradual that almost any relaxation of social restrictions will probably reverse its direction.

      All of that evidence to the contrary of what you assert has accumulated in a population which has since March 17 been under fairly stringent, and mostly-well-followed, social distancing rules.

      More generally, the right standard for crafting policy cannot be what the virus has already done nationwide, but what it can do in the absence of policy to prevent it. For that, the experience in New York, or Chelsea, MA, or other slightly-less-afflicted places must be the benchmarks. And before adopting those benchmarks, they have to be extrapolated upward to account for the fact that the pandemic is still-ongoing, and upward again to account for the fact that aggressive policies of social distancing notably decreased morbidity in the benchmark places.

      Would-be minimizers must also explain on what basis they assume special protected status for much of the nation’s more-dispersed population. Absent social controls to prevent spread, it may be reasonable to suppose those places are merely waiting their turn.

      That is what the experience in Massachusetts seems to show. At first, remoter small towns seemed almost immune. As time passed, heavily hit areas practicing social distancing rigorously somewhat reversed previously sharp upward trends. But those remoter towns, one-by-one, are now beginning to show increases.

      Lest I be caught out looking too sure of myself, I invite anyone who better knows the epidemiology—and especially the use of the terms “morbidity,” and “mortality”—to correct me.

      1. lathrop, MA The United States

        1. MA -does not equal- The United States

          1. But the virus is the same everywhere, including places not equal to Massachusetts.

      2. The courts then have established that the full force of the law will be used to constrained rights based on SCIENCE! which is just guessing and will never be able to come up with anything like an objective standard.
        People die all the time of something, from personal health issues like cancer or heart attacks, or accidents, or diseases. If you want to legislate based on a disease, you must distinguish applying the law for ‘common’ flu and this ‘special’ flu. This needs something objective. I’m not saying that you can’t do it, but that you need numbers, like speed limits, or blood alcohol levels.
        All we have now is screaming governors – “We’re all gonna die!”

      3. I have always heard “morbidity” defined statistically in terms of days spent in the hospital, i.e. patient care outcome and hence hospital ratings by health insurance companies.

        As to the statistics, they are (a) wildly inflated and (b) ignoring the deaths for other things. (Or have we suddenly cured cancer?)

        This is a thinly-veiled leftist attempt to control the population. Memory is that Governor Thomas Hutchinson was tarred & feathered.

        1. Bigoted, superstitious social conservatives are among my favorite faux libertarians.

          Right up there with some law professors.

      4. Thanks, Stephen, good post. It got me thinking of the distinctions between mortality and morbidity. I think you may be confusing morbidity with infection rate. Morbidity is a measure of an individual’s ill health, or susceptibility to mortality. Increased morbidity can be due to getting the flu, as well as any or a combination of a plethora of diseases. For example, one with hear disease or diabetes has a higher morbidity than one without those conditions. If one of these people got COVID-19, these conditions would be referred to as co-morbidities, along with the COVID-19.

        At least that’s my understanding, I’m open to being corrected on this.

        The Publius, also in Massachusetts, in Worcester County

  5. As I am not in California I don’t know the specifics of their positions, but if businesses other than those deemed essential are allowed to be open and have workers inside, then the position of not allowing churches the same is not a neutral position and should be overturned.

    Churches should be allowed the chance to meet the exact same specifications and regulations given to other businesses currently allowed to be open.

    Yes I’m sure that some churches will ignore the health regulations and will be held up as a bastion of ‘why we shouldn’t allow them to hold services’. But the exceptions don’t prove the rule, otherwise we’d have to shut all the businesses down too since I’m fairly certain we have all in our lifetimes heard of that one business (or more) that was shut down by health inspectors. Or even that one that got a D and barely skimmed by getting shut down

    1. Churches should be allowed the chance to meet the exact same specifications and regulations given to other businesses currently allowed to be open.

      If churches expect to be treated alike with others, then churches have to stop asserting claims not available to others. Churches are not just saying, “We are observing every jot and tittle of our social distancing obligations.” They are saying also, “And anyway, public health emergency or no, the 1A gives us the right to do as we please.”

      It is that second claim which elevates pubic health concern regarding the church issue. That argument—unlike pretty much all the others—is that evaluation of the effect of church services on pubic health is irrelevant, because churches have rights which take precedence. Against that backdrop, it seems disingenuous to claim folks who think a pubic health emergency is a purely secular occurrence, are somehow anti-religious bigots for thinking so.

      1. lathrop, the fact is, 1A specifically protects religion, and the free exercise thereof. You might not like that, but the text is the text.

        The restrictions were understandable for a short period of time while we gathered data to understand transmissability, mortality, patient profiles. We had all of that by the end of April.

        You know, in my synagogue we have a boatload of physcians to advise us. Newsflash: The data and the science are we can take protective measure and worship God in our synagogue.

        Physical distance + enhanced hygiene + masks = ability to worship in relative safety

        1. And the constitutional protection afforded religion is not unlimited. You may not like that, but jurisprudence is jurisprudence.

          1. You’re right….the protection given to religion is not unlimited. I agree. But we’re way past the point where you can rationalize suspending free exercise rights on account of a public health threat (the Wuhan coronavirus, which kills less than 1% of the people it infects, overall (symptomatic + asymptomatic). That is the data).

            Professor Blackman made a telling point in the Buckley webcast awhile back. The Judicial branch is the weakest branch, and if we’re somehow hoping the Courts will swoop in and rescue us, that is not happening. Why? Courts are reactive, not proactive.

            Now we are seeing multiple cases wind their way through the system. I am hopeful one makes it’s way to the Third Circuit. We need more judicial opinions on just how far state authority extends in public health emergencies.

            1. If you arguing that free exercise rights need to be respected, meaning limits on religious exercise should meet the same standard as limits on comparable secular activities, I’m with you. If on other hand, you are arguing more exacting scrutiny than rational basis is needed in general for state authority in a pandemic, I am not. The elected branches, not the courts are best equipped for such a job.

      2. So you support Texas’s closing abortion clinics?
        0r is that “different”?

        Hint: The word “abortion” does not appear in the Constitution. *I’ve* actually read it — the word’s not there.

        1. Among other deficiencies in your analysis, you may want to reread the 9th amendment.

  6. Because the restrictions at issue here explicitly “reference … religious practice, conduct, belief, or motivation,” they are not “facially neutral.”

    That conclusion makes little sense because regulations that merely describe what activities cannot be opened based on
    “underlying physical conduct that it identified as dangerous” would leave everyone in the dark about which activities met the criteria. You have to mention religious services by name in order to have a workable regulation.

    Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person “religious services”—merely because they are “religious services”—are categorically not permitted to take place even if they follow the same guidelines

    It does seem that California has not adequately explained why warehousing and manufacturing are in Phase 2 (lower risk) while religious services are in Phase 3 (higher risk). Perhaps, the case can be tossed back to the district court to explore this issue.

    1. My guess is the US Attorney will be asking that soon.

    2. But that’s exactly the point. If the government can’t make a law / executive order without language specifically referring to religion, then there is no objective criterion at work.

  7. Judge Daniel Collins writes:

    “Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right”

    He italicized the word enumerated. But the Ninth Amendment says:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    It sure does sound as though Judge Collins is doing exactly what the Ninth Amendment says he must not.

  8. By regulating the specific underlying risk-creating behaviors, rather than banning the particular religious setting within which they occur, the State could achieve its ends in a manner that is the “least restrictive way of dealing with the problem at hand.

    This is why I believe this decision can and must be overturned. CA is not using the least restrictive means. Their rationale will fall apart under strict scrutiny. The same thing is happening in the People’s Republic of NJ, except we do not have a case before the Third Circuit….yet. Stay tuned.

  9. This is a…surprisingly weak…argument by the State of California.

    “…Will make no law respecting a religion, or impeding the free exercise thereof…” Part of the First Amendment. It’s unquestioned that these limitations strongly impede the free exercise clause. It was already iffy whether longstanding prohibitions could stand under strict stay at home quarantines.

    But under this reopening plan? California makes a number of errors.
    2. It treats religion distinctly worse than many other non-essential services. You can sit down in a restaurant with 100 other people…but not go to church. You can work in a factory making toys, next to 500 other people…but not go to church. You can have kids in crowded daycare centers for nonessential employees…but not go to church. Shopping malls, swap meets open..but not churches. I can’t see the governor’s laws meeting strict scrutiny in the wake of all the other non-essential services open.

    3. It then places religious services (all religious services) in a distinct category, by name, without rationale for size, spacing, etc. Moreover, it’s not clear why the government couldn’t move religious services to phase 4…or a hypothetical “phase 5” based on its arbitrary criteria.

    4. Lastly, when religious services offer to maintain all the same criteria of distancing and masks, the government’s response is “we just don’t believe you’ll do it…so nothing at all”. Amazing.

    It was borderline at best, when you had a statewide full quarantine. But with these regulations? This should be a 9-0 shutdown by the SCOTUS. If it isn’t, the Bill of Rights ceases to exist.

    1. I don’t exactly disagree, but I think we should try to address more directly what California was trying to do, with these various phase distinctions.

      It’s apparent to me, for instance, that the Phase 1-2-3 categories reflect some judgments about the “importance” of the underlying activities, in terms of economic health and infrastructure. You start with “core” economic activities, like manufacturing and distribution; you move to “core” support activities, like childcare and elective healthcare, and important but non-“core” economic activities, like food and personal services; and then into more “recreational” types of things that people can more easily go without.

      Does the Free Exercise Clause mean that states can’t decide where, in that framework, religious services fall? Are religious institutions wholly exempt from the risk/benefit calculations that policymakers are trying to make, when they are constructing these phased reopenings? Are they entitled to reopen first, because there is no principled way, consistent with the Constitution, to delay their reopening?

      It seems to me that it would be a perverse result. It would mean that the state could specify “safe” conditions for reopening and “phase” when private businesses can reopen in reliance on those conditions, based on their economic importance and a weighing of the risks – except for churches. Those could reopen whenever they satisfy the “safe” reopening conditions, simply because we have no way of describing what they do besides, “providing religious services.” Their schools, hospitals, etc.? Those we might be able to restrict using generally applicable phasing guidelines. But churches – no.

      A perverse result, but I don’t see any real way out of this constitutional knot.

      1. “the Phase 1-2-3 categories reflect some judgments about the “importance” of the underlying activities, in terms of economic health and infrastructure.”

        In a free country, the state does NOT get to make those judgements!!!!

        ALL is lost once we concede that authority to the state, we will have become nothing more than a reincarnation of the Soviet Union, with its centralized planning and the rest.

        then into more “recreational” types of things that people can more easily go without.

        As defined by whom?!?

        I could easily say that childcare is something “that people can more easily go without” and that with sky-high unemployment, mothers should be *required* to stay home with their children as there is no shortage of others able to work.

        Conversely, I personally know sports fans so rabid that I have no doubt they’d gladly go without warm food or showers if they could just go watch their favorite baseball or football team play. They’d gladly live on nothing more than beer & nachos and wouldn’t mind foregoing clean clothing as well. (OK, I’m showing my biases here, but we all know people who would make great sacrifices to attend a game — or even see it on TV.)

        My point is that the state doesn’t get to set priorities in a free country!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

        1. For the record, I am not proposing that women be *required* to stay home with their children — although the other half of the Soviet style of centralized planning was that everyone was told what job one would be required to do.

          Hence, with centralized planning, it is perfectly acceptable to tell women that they can’t work because the state more needs them home with their children. Likewise, to tell them that they can’t have an abortion because we need to maintain a consistent number of children in our K-12 system.

          So this is about a little bit more than just being able to worship the Lord….

          1. “So this is about a little bit more than just being able to worship the Lord…”

            I don’t care how (or if) you choose the “worship the Lord…” in general. I do have an objection to people who claim both an unlimited right to “worship the Lord” along with an unlimited right to determine what is, and what is not, involved in their worship. that’s a do anything and get out of jail free card

        2. “In a free country, the state does NOT get to make those judgements!!!!”

          You might want to get your keyboard checked out the exclamation -mark key seems to be sticking. Anyways, in a free country freedoms come with responsibilities. You don’t get one without the other. People who want the freedome without the responsibility are not free, they are children. And children have restricted rights in a free country(!!!!)

      2. I believe California has defined the phases only based on health risks, not on economics.

        Manufacturing is in phase 2 while movie theaters, gyms and churches are in phase 3. Perhaps there is a neutral and generally applicable argument as to why churches are with gyms rather than manufacturing. But, I don’t think California has made that argument as of yet.

      3. “I think we should try to address more directly what California was trying to do” “A perverse result,”

        So one of the issues here is the state always is trying to do what it thinks is right, in the State’s own opinion. But many times, as we can see throughout history, the State’s opinion, no matter how well intentioned, ends up creating greater misery and lack of liberty. To address this, the founders created a Bill of Rights which has…perverse results sometimes.

        You get things like the police requiring warrants in the bill of rights…even for obviously guilty people. And the time required to get those warrants will allow for some guilty people to get free. Is it in the State’s interest to let those guilty people get off? No, but the greater protections to the whole are worth the occasional “perverse result”.

        You get things like the protection of the media, even when the media makes statements that hurt the State. Other areas where the State has a history of making decisions that hurt a group, the group is specifically mentioned and selected out as having protections. It may lead to odd results, but the greater overall good is seen as needing those protections, especially given past history of abuse of the group by the state.

        So, yes, it’s somewhat perverse to have the Churches and Mosques and Temples open up. But in light of history and a greater overall good, it is required by law.

        1. I’m not so sure about the greater good. But the law and the constitution do seem to require it. Not being religious, it’s hard for me to see how increased transmission of the virus is worth it. But it isn’t for me to decide, except for my own self. Hopefully not a fatal constitutional flaw for any of us.

          1. It’s not really about you being religious per se. It’s about state control of religion and the historic ways the state has used (or abused) religion, both in regards to the individual sects and as a whole.

            It’s the same reason we have Amendments regarding “Freedom of the Press” and “Protection for minorities”. Because the State has historically abused its authority against the press or against minorities. You don’t need to be black to understand why protections against discrimination of African Americans are necessary. Likewise, you shouldn’t need to be religious to understand why discrimination and biased treatment towards religions is necessary.

          2. ” it isn’t for me to decide, except for my own self.”

            The thing is, one of the ways you can decide isn’t limited to just your own self.

        2. “So one of the issues here is the state always is trying to do what it thinks is right, in the State’s own opinion.”

          States don’t have opinions. People have opinions.

  10. I comment pretty regularly on religion cases. But I haven’t commented on these cases so much because I think this one is a tough call and the right answer isn’t so obvious to me. The fact that various courts (and judges within courts) have gone different ways reflects this.

    I think that emergency rules of this nature are constitutional under standard compelling-interest doctrine for emergencies, but can become unconstitutional if one compares them to other things that get treated more lightly. But this is by no means clear. A lot depends on what the other things are, not just what one thinks of their relative importance but also the assumptions one makes (or facts in evidence) about the way they do business and whether the risks are really comparable.

    Also, it requires treating the religion clauses as having unique content. The equal protection clause by itself doesn’t require equal treatment of businesses or activities, it only requires equal treatment of people within a given occupation or activity. It’s the religion clauses themselves which give religion special rights and say it can’t be treated worse than other activities with comparable risks – if the risks are really comparable.

    1. That may mean the right answer is plaintiffs don’t get a preliminary injunction but might still win after a trial when disputed facts are resolved.

      1. And get to sue the governor for damages?

        1. what damages?

    2. A lot depends on what the other things are, not just what one thinks of their relative importance but also the assumptions one makes (or facts in evidence) about the way they do business and whether the risks are really comparable.

      So ReaderY, how do you make the distinction for yourself? How do you decide when something morphs from ‘compelling interest’ to ‘unconstitutional’.

      FWIW, I advocate objective and observable behavioral-based criteria. That is, if you allow socially distanced groups of 10 or 25 or more in a secular setting (i.e. retail stores, beaches, parks, offices, liquor stores, post offices, playgrounds, boardwalks at the shore, etc), the same must be permitted for synagogues.

      1. As ReaderY said, these are the types of facts that need to be further explored in court.

      2. “FWIW, I advocate objective and observable behavioral-based criteria. That is, if you allow socially distanced groups of 10 or 25 or more in a secular setting (i.e. retail stores, beaches, parks, offices, liquor stores, post offices, playgrounds, boardwalks at the shore, etc), the same must be permitted for synagogues.”

        The problem there is that looks a lot like the state telling churches how to do their business, which is not a power the states generally have, whereas they do have that power with regard to businesses.

    3. “I comment pretty regularly on religion cases. But I haven’t commented on these cases so much because I think this one is a tough call and the right answer isn’t so obvious to me. The fact that various courts (and judges within courts) have gone different ways reflects this.”

      The government (executive and legislative) need to emulate this humility more, and perhaps act as though it is not for them to decide and leave it to the public masters (citizens), not servants, to make their own decisions. Pretty libertarian argument, I know.

      1. “… perhaps act as though it is not for them to decide and leave it to the public masters (citizens), not servants, to make their own decisions.”

        The American Revolution started over far less than what the government is doing now. I say that as someone whose family was on the other side of that little bit of unpleasantness.

        1. It may seem that way to a social conservative — who is outraged by the end of government-prescribed school prayers, the diminution in gay-bashing, the lack of creationism in legitimate classrooms, the loss of statist womb management — but the American mainstream disagrees.

          Getting stomped in the culture war has made you cranky and disaffected, Dr. Ed. Your right-wing fever dreams concerning armed revolt, violence against the mainstream, and ‘Second Amendment solutions’ are just intensified versions of conservatives’ standard bitter, inconsequential muttering.

          Even Prof. Volokh — a dedicated clinger — thinks you guys are kooks.

      2. “The government (executive and legislative) need to emulate this humility more, and perhaps act as though it is not for them to decide and leave it to the public masters (citizens), not servants, to make their own decisions. Pretty libertarian argument, I know.”

        The government IS the people. Sometimes its necessary to tell selfish people to stop being selfish because their actions affect other people, whether they realize it or not. Relying on selfish people to stop being selfish on their own recognizance just isn’t reliable.

    4. If God doesn’t want religious services closed down to limit the spread of the pandemic, maybe He shouldn’t have sent us a pandemic.

  11. I’m not sure cases like this are very conducive to blogs. Although not as bad as twitter, blogs tend to promote knee-jerk reactions based on initial thoughts heavily weighted by world-view predelictions, especially when things can be perceivable in good-guys vs. bad-guys terms. They aren’t so good for cases that require investigating and weighing specific facts and details, or considered thought generally.

    And we get the standard evil-government-secularists vs. evil-neandrethal-religionist type comments that seem to crop up here all the time.

    1. Reader, is it your recommendation that bloggers limit themselves to issues that don’t require considered thought, and where flying off the handle is appropriate?

      1. ” bloggers limit themselves to issues that don’t require considered thought, and where flying off the handle is appropriate?”

        That’s what the comment section is FOR.

  12. I wonder about non-believers, though, particularly secular atheists. This is, by their belief, their one chance at life, YOLO and all that. Why are THEY putting up with this?

    1. LOL…brilliant. I had not considered that perspective. But you are right = YOLO.

    2. “Why are THEY putting up with this?”
      Because it will reduce the impact of a global pandemic upon their lives. Staying home from work because of a stay-at-home order is not as bad as staying home from work because they’re too sick to work. Not getting a haircut for a couple of weeks because of efforts to limit the spread of infectious disease beats not getting a haircut because all the barbers died.

    3. “Why are THEY putting up with this?”

      Being sick tends to interfere with your enjoyment of life.

  13. Trump’s judges believe that the Constitution is a suicide pact, apparently.

    1. At least they believe it exists…

      1. Neomi Rao has entered the chat.

      2. “At least they believe it exists…”

        In the sense that they believe that it gives unlimited power to his royal highness, the President. I don’t believe that part exists.

    2. As revolutions tend to become mutually destructive, I view the Constitution as more of a non-suicide pact.

      Might I suggest that people look into history and as to how revolutions and civil wars *start*?

      1. And how rarely they succeed without just rolling over to a new dictator?

        And how the core design principle of the constitution is to prevent dictatorship by denying powers to government, or gating them behind warrants?

        And how “emergency powers” is the most common method of collapse from freedom, and not even slow ratchet growth in power agglomeration?

        People, George Lucas didn’t make that up out of whole cloth. It was all to common in sad human history. When Padme said, “So this is how liberty dies, with thunderous applause!”, she was talking about you, dear reader, and half the official bloggers on this site.

        1. I’m starting to think some of ’em are just pretenders to the throne, and are not really so concerned about freedom except in small, individual cases, as intellectual exercises at that. It’s clear the way they throw in with government in the bigger picture here, with little concern over declarations of sufficiency of politicians’ chin-rubbing judgements, that the big picture background behind these protections whooshes right over their heads.

          Prove me wrong.

        2. ” the core design principle of the constitution is to prevent dictatorship by denying powers to government, or gating them behind warrants?”

          You have exactly those rights that other people are prepared to extend to you, and no others. This is so no matter what high principles the authors of your government documents proclaim. Thus, since most Americans were afraid of Imperial Japan, Americans of Japanese descent found themselves “interned”, their homes and businesses expropriated, in 1942, right here in the Land of the Free. After all, any one of them might have been a sneaky double-agent placed here to sabotage our military capability to respond to Japanese aggression in the Pacific theater. You’re free to exercise your religion as you see fit, unless you want to build a “victory mosque” somewhere in Manhattan (or Tennessee). And you’re free to speak on any subject you like, unless you want to criticize the President for his incompetence in dealing with anything at all.

      2. “Might I suggest that people look into history and as to how revolutions and civil wars *start*?”

        Our Civil War got started because it became more and more obvious that people should not own other people, and the people who DID own other people didn’t like it that other people were reaching this conclusion. So, when the people of this country elected a President who openly stated an opposition to the practice of owning other people, the people who owned othe people tried to cut loose the people who didn’t think people should own other people by leaving the country, and taking their land with them. The “War of Northern Agression” was started by rebellious traitors firing on a military base. After the War to Prolong Human Slavery failed and the slaves were freed, the revisionist history began.

  14. I think that if places of worship cannot have in-person services at least along the lines that people are allowed into supermarkets, then the State is wrong on this. Have you been to a supermarket, wholesale club, Wal-Mart, etc., since the lockdown? Why can’t churches be allowed the same level of congregation?

    1. Your argument falls completely flat with me.

      I do not go into a grocery store. I get curbside pickup.

      You seem to be justifying the worse, based on the bad.

      Hey, if we can have people gathering in large crowds in churches, why not have packed bars and beaches. This is where this logic goes. To this:

      https://twitter.com/morethanmySLE/status/1264369649271156739

      Why are people so dumb? Why do we need to have a second wave for people to learn?

      1. “I do not go into a grocery store. I get curbside pickup.”

        Point being that the state is allowing people to enter the stores. How exactly does your personal preference affect the legal situation?

        1. It is not a personal preference. I prefer to enter the grocery store and buy food as was my custom before the pandemic.

          But by not entering, I reduce my chances of getting COVID-19. And I reduce the chance that I spread it to others.

          My point is, we are already conceding something that is bad for public health by allowing people to enter grocery stores instead of requiring them to use curbside pickup.

          Based on that, we are supposed to condone more and more dangerous behavior. The end point being what? A second wave of death, disability, chronic health conditions, and unnecessary pain and suffering, even worse than the first???

          If I were in charge, the rules would be stricter than they are now. And more stringently enforced. I am not necessarily against forbidding you from going into a grocery store. And more so if people insist that allowing people to go into grocery stores is discriminatory and implies we must allow them to gather elsewhere such as churches or concert halls or movie theaters or pool halls or bars. And let us not imagine that forbidding people from going to movies does not ALSO burden important fundamental rights. You ordinarily have a First Amendment right to go see a movie just as you have a First Amendment right to go to church.

          Guess what, I am actually FINE with a rule that says you can’t go into a grocery store. If that is what it takes.

          The lines that must be drawn for public safety must, at their boundaries, be somewhat arbitrary. Why should the speed limit be 65 miles per hour on this road? Why not 67.7345 miles per hour instead. Why not 60 miles per hour. Why not 55 miles per hour? What is the exact “correct” number, anyway?

          Guess what. There is not a great answer for that. It doesn’t make me particularly happy that we don’t have a great answer for that. And yet, we still need speed limits. Ones that people can easily understand and comply with. At the end of the day, the problem is one of mapping a discrete variable that takes one of two values (allowed or forbidden) on to a continuous concept (speed).

          Even the 6 foot social distancing recommendation is arbitrary at the margins in this sense. Six feet does not offer you complete safety. It offers more safety than 5 feet, but less safety than 7 feet. What is this the perfect distance? It isn’t.

          Here, with this pandemic, the discrete variable is the same (allowed or forbidden) but what it maps onto is even more multitudinous. For what precise purposes should people be allowed to gather (in the case of a grocery store, it is to obtain food), how many should be allowed in at once, should they be required to wear masks, what kinds of masks are acceptable (N95 masks would be better than what is currently required, but N97 masks would be better than N95, and N99 better still), how far should they have to distance, what kind of barriers should be in place etc. are not questions with objectively correct answers.

          Even curbside pickup involves some risk.

          That some risk is unavoidable and that rules to control risk will never be perfect is not a decisive argument against such rules.

          These rules are intended to and do save lives, prevent long-term chronic health conditions, and prevent unnecessary fear, pain, and suffering. At the same time, we need a workable system that people can live with. I do not believe we have to choose the most absolutely stringent rules possible, lest we be accused of discrimination even when that is no part of our intention.

          1. David, you are beginning to sound like a raving lunatic, or perhaps a raving paranoid.

            What’s the point of your use of the terms discrete and continuous variables? Speed, in practical terms, is discrete, not continuous. Values of speed like allowed and forbidden are not separate, discrete variables. The sentence “At the end of the day, the problem is one of mapping a discrete variable that takes one of two values (allowed or forbidden) on to a continuous concept (speed)” is poppycock.

            Your totally paranoid approach to this is not absolutely correct, regardless of how strongly you feel about it. People are going to die because of this virus, regardless of what is done. I doubt there will ever be a 100% effective vaccine against it, nor a 100% effective treatment or “cure” for it. There are no such things for many related (RNA) viruses, such as the common cold, influenza, SARS, hepatitis C, hepatitis E, West Nile fever, Ebola virus disease. For some, like rabies, polio, and measles there are effective vaccines and treatments. But not for all.

            I am not willing to destroy the economy, or my lifestyle, because we can’t be 100% safe. Destroying the economy will result in much more suffering and death than due to just COVID-19.

            1. ” Speed, in practical terms, is discrete, not continuous.”

              WTF are you talking about? Speed is absolutely continuous and not discrete. If you are going 35 mph, and put your foot down on the long, skinny pedal, you’ll got 36, then 37, then 38. You won’t go from 35 to 45 without passing through all the speeds in between. Put your foot down on the big, square pedal and you’ll go from 38 to 37, then 36 and so on down to 0. You don’t go from 35 to 0 without passing through all the speeds in between them unless you hit a solid object. Even then, you pass through all the intermediate speeds, it’s just that you spend so little time doing so that you can’t perceive it correctly.

            2. “I am not willing to destroy the economy, or my lifestyle, because we can’t be 100% safe.”

              So, because you prefer to be 0% safe, you risk everyone around you. You shouldn’t be surprised that some of them are not 100% OK with that. Which part of “infectious” did you not understand?

          2. Yes, we get it. You’re a slaver. Just start every post that way: “My name’s David, and I’m a slaver.” It’s the first step.

            1. ThePublius:

              Speed, in both actual and practical terms, is continuous. And the point is that there is no objectively “right answer” about what the speed limit should be. Yet, we agree that there must be one.

              You are delusional if you think that people are just going to go back to normal when going they not only think it is unsafe, but are in fact, right that it is unsafe. This isn’t a choice between the economy and lives. This is a choice between being stupid and being smart. If you want to fix the economy, deal with the virus rather than making it worse. Making the virus worse is just going to EXTEND the problems with our economy.

              Did you know that ostriches don’t really stick their head in the sand in response to danger? But apparently, that is what you think we should do. If only we wish this problem didn’t exist, it would go away.

              By the way, unemployment DOES NOT cause increased deaths in Germany. Only the United States, due to our inadequate social safety net. There is a lesson here.

              https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464820/

              1. Before you continue any of your already questionable arguments, will you please define “safe” in an objective way that can be applied by any of the people here?

                You keep using the terms “safe” and “unsafe”, but without specifics, these are vague terms that mean something different to each person.

                1. This isn’t complicated. “Safe” is the side where your odds of transmitting the virus either to or from your body to another is reduced, and “unsafe” is when your odds of virus transmission go up. Either one is relative to the other. Being near exlusively people who do not have the virus is “safe”, being near exclusively people who do have the virus is “unsafe”. If you don’t know if other people do or do not have the virus, being not near those other people is safe and being near them is unsafe.

              2. I’m not making the virus worse, David, the virus is what it is; and staying in your house is not going to change it. That will only delay it, extend it.

                Unemployment is not the only effect of ruining the economy, it’s only one small part of it. There’s the destruction of the food supply chain, the wrecking of food processing businesses. There’s anxiety and depression and loss of hope. There is the denial of very necessary medical services; what of people with heart disease, cancer, diabetes, etc., when hospital staffs are laid off, hospitals close, etc., due to a mandatory focus on COVID-19.

                What are we going to do when the next animal borne, human cultivated virus escapes from a Chinese lab? Shut down everything again, regardless of everything else?

                You’re going to get it, David, or you’re going to get a vaccine, in the Fall, or next Sprig, or next Summer, the next Fall – who knows. Or maybe you have it already: a large percentage of those with the virus are asymptomatic, never get sick.

                No thanks, not for me. Let’s move on, open up, get on with it. The only ones sticking their heads in the sand are those who think they can wait this out.

                1. “What are we going to do when the next animal borne, human cultivated virus escapes from a Chinese lab? ”

                  I bet we’ll be able to invent a few wild conspiracy theories for that.

                2. “I’m not making the virus worse, David, the virus is what it is; and staying in your house is not going to change it.”

                  The virus may not change, but the pandemic does.

            2. “Yes, we get it. You’re a slaver. Just start every post that way: “My name’s David, and I’m a slaver.” It’s the first step.”

              We get it, you don’t have a real argument, just invective and insults. I hope you won’t be surprised that your lack of still in building an evidence-based argument results in your invective getting ignored when it continues to happen.

          3. Excellent comment, Welker, but you are wasting pixels trying to reason with this crowd. They have no cogent replies. They demand evidence from adversaries, but never expect to listen to it. You will be replied to with invective, ad hominems, and axiomatic denials which this audience rehearses among themselves, for mutual reassurance.

          4. “It is not a personal preference. I prefer to enter the grocery store and buy food as was my custom before the pandemic. But by not entering, I reduce my chances of getting COVID-19. And I reduce the chance that I spread it to others.”

            You sound like a decent, intelligent, thoughtful, educated person.

            You are not the Volokh Conspiracy’s target audience. Probably not even a bigot.

          5. “What is the exact “correct” number, anyway?”

            Engineers demand precision like this, but good ones design with “safety margins” to protect against other people who don’t believe in limits. If you design a bridge to carry 10-ton trucks, you better believe that some jackass with an 11-ton truck will see that sign that says “bridge weight limit 10 tons” and think “they don’t mean me. I’m only one ton over” and drive over it. A simple search of YouTube will show you plenty of people who ignore height limits for trucks at tunnels and overpasses.

      2. Let’s check back in a couple of weeks and see. So far there haven’t been second waves in place that have opened up.

    2. Would not a concert hall or educational (lecturing) facility be a better point of comparison for a church than is a store (which can offer curbside pickup or delivery, and which generally features briefer visits with fewer prolonged congregations)?

      1. Yeah, many people still spend an hour or more to grocery shop.

        1. If you are trying to convince me that everyone should be required to use curbside pickup for groceries like I do, please continue.

          1. you understand, the capacity to do that (have everyone use curbside pickup) doesn’t really exist…

            1. It exists for people who want it.

      2. Arthur, you don’t make a case for why briefer visits by more people at supermarkets is less risky regarding spread of infection than fewer people exposed to each other for longer periods. Care to expound?

        1. First, smart and decent people are using (or preferring) curbside grocery pickup, or contact-free delivery, for several reasons.

          Second, there have been a number of reports of indications that duration of exposure is relevant in ways that seem logical in the context of viral load. This site permits one link: https://www.miamiherald.com/news/coronavirus/article242846836.html

          Third, there is an important distinction between food (or non-elective medical care, or provision of emergency services) and church in this context. Food is essential. Church attendance is not. This is why doctors, nurses, and orderlies are exposing themselves to risks often generated by others’ stupidity these days, while smart people are not visiting hair salons.

          There are other reasons — an exhibition of recklessness and/or ignorance at a grocery store is easier for broader society to monitor, for example — but I doubt any volume of evidence or application of reason is likely to persuade some people in this context.

          1. So, the millions upon millions of people visiting grocery stores are smart and decent; and anyone who doesn’t agree with your position is stupid and not decent. Got it.

            1. Should have read “the millions upon millions of people visiting grocery stores are NOT smart and decent””

          2. About your Miami Herald article – did you see the part that says ” lacks sufficient research surrounding the novel coronavirus?”

            Ha, ha, ha.

        2. We know you want to force your personal preferences on everyone. That’s why you’re a slaver. Admitting it is Step One.

        3. “Arthur, you don’t make a case for why briefer visits by more people at supermarkets is less risky regarding spread of infection than fewer people exposed to each other for longer periods.”

          Less exposure = less exposure. QED.

  15. The lack of common knowledge about Christianity in these comments is astounding, especially seeing many trumpet themselves to be intellectual elite. Not surprising in the least though as the education system is devoid of any teaching of even the history of Christianity (but it flush with other religions because of “diversity” and “multiculturalism”, etc.)

    1. “There’s literally only one thing that all Christians have in common, and you’re surprised that not everybody shares your particular flavor of it?

  16. However much I disagree with the Supreme Court’s invention of unenemerated rights which seem more in line with its members’ personal political and ideological predelictions than any textual or even historical anchor, and however much I’ve complained about its corresponding expansion of the concept of a compelling interest along similar lines (to the point where it seems to have devised judge-made doctrines adequate to decide any controversial social question at all), I don’t think a lower federal court has authority to claim that a state’s ability to override rights compelling interest considerations apply only to unennumerated rights, not enumerated one. The claim radically conflicts with the Supreme Court’s pre-Smith religion jurisprudence, which in multiple cases found compelling interests that overrode free exercise rights. The dissent seems like the sort of expounding of general constitutional philosophy devoid of contextual caselaw that it’s just not the role of a lower court judge to do.

    1. ” the Supreme Court’s invention of unenemerated rights”

      Just because the Constitution specifically says they exist is not reason why judges interpreting the Constitution should act like they exist.

  17. It will take at least six months or longer for a vaccine to become available.

    The unemployment rate is currently 14.7%

    Is a containment strategy is even remotely sustainable for six more months?

    1. “It will take at least six months or longer for a vaccine to become available.”

      Faith healers won’t bother because God will protect them from the virus, or not as He sees fit. I predict that He will cause the virus to spread virulently among the faithful, but not so much among the vaccinated. It’s almost like He believes in science and technology.

  18. People get in car accidents driving to church.

    Some of these accidents are fatal not only to church-goers but to third parties driving to get groceries.

    Fewer churchgoers and third parties would die if church were banned forever…

    1. Places of worship will not be banned forever, ever. The National Highway Traffic Safety Administration uses statistics to help determine what the right balance is between saving lives and rules of the road.

      My main beef is that the majority opinion made little effort to justify its position with a statistical risk based analysis. Instead, they made a hyperbolic reference to a death pact.

      1. You’re angry because the judges didn’t use enough math. Hint: people who like math become engineers, not judges. Lawyers, collectively, are not known for mathematical skill.

  19. For those in favor of continued closures; own it. Close everything Hospitals, Grocery stores, gas stations, internet and phone. Let the National Guard drop off your MRE’s for the month. If you get sick, put a red flag in your window.Otherwise, you are deciding who is expendable. After all, it might save Grandma.Especially, close Nursing Homes, old people die in them from Governors ordering infectious patients there. Curb-side pickup, how elitist of you.

    1. “For those in favor of continued closures; own it. Close everything Hospitals, Grocery stores, gas stations, internet and phone. ”

      This isn’t the kind of virus you can catch on the Internet.

  20. If we assume a theological point, that God is with you wherever you are, then the stay-at-home order doesn’t interfere with your religion.
    If, on the other hand, the reason to go to church is to be seen going to church, then the stay-at-home order is indeed a grave interference. What did Jesus have to say about people who wanted to be seen going to church? As I recall, He didn’t want to claim any followers of that nature.

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