Equal Protection

Oregon County Imposes Race-Based Mask Requirements

|The Volokh Conspiracy |

From Lincoln County, Oregon:

Face Covering Directive
Order 6/17/2020—Face Covering Directive (signed directive in Supporting Documents—below)

General directive: All individualis in Lincoln County are required to wear face coverings during any indoor public setting or outdoor public location where a person will be in within six feet of another individual, who does not share the same household.

Exceptions:

  • Persons with health/medical conditions that preclude or are exacerbated by wearing a face covering.
  • Children under the age of 12. Children over the age of 2 but under the age of 12 are encouraged to wear face coverings but not required to do so.
  • Persons with disabilities that prevents them from using the face covering as described in this Directive. These persons must be reasonably accommodated to allow them access to goods and services.
  • People of color who have heightened concerns about racial profiling and harassment due to wearing face coverings in public.

I appreciate the concern about racial profiling, but, no, it can't justify having one law for "people of color" and another for whites; such a race-based classification violates the Equal Protection Clause. Thanks to Luke Thiesen for the pointer.

Advertisement

NEXT: The Washington Post's Halloween Costume Hit Job Is a New Low for Cancel Culture

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. What went wrong with the culture of the type people who write these rules? What made them think to try to enact such a rule to begin with?

    Seems like a systemic, institutional problem.

    Prediction: no one will apologize.

    1. “What made them think to try to enact such a rule to begin with?”

      Concern for people of color?

      1. Concern, forsooth!

        This rule disincentivizes POCs to wear masks. Not only will some of them choose not to take a precaution that’s not required by the law, increasing their risk of a disease that already afflicts a disproportionate number of them; but those who do choose to mask themselves will come under suspicion—

        “There’s a black man walking around my neighborhood wearing a mask. Since they’re not required to wear them, this guy might well have some ulterior motive. Could you send an officer over to check him out and make sure he’s not up to something?”

        Rather than “concern”, the motive for this exception appears to be “desire to seem concerned”.

        1. You know, some one could be wrong ultimately in how they act on t their concern without the concern being insincere.

        2. I would think that the prospect of getting assaulted or killed by the police is more than enough disincentive.

      2. Which is exclusionary and tend to be contrary to equal protection when put into action.

        When did concern for all disappear as an ethos?

        1. When bigots started to recognize that their stale, ugly thinking had become objectionable in the American mainstream, so those bigots switched to euphemisms such as “color-blind,” “all lives matter,” and “concern for all?”

          1. I don’t read your posts. You are a bad example of humanity. Your parents should be ashamed.

            1. Ben,
              It kinds sorta sounds like you do read his posts.

              1. kinda sorta…
                [stupid lack of Edit button. sigh]

              2. I read a couple of them long ago.

            2. I didn’t know Satan’s spawns had parents…

        2. Don’t you think the idea is that people of color have a special concern re profiling/harassment? Even if you don’t think that concern is warranted, you don’t see how they might have the concern at the very least, say, because lots of people are out there saying it’s warranted?

          1. No special concern, no. If your rule can be used unfairly to harass one race, it can be used unfairly to harass. Period. If that’s a primary concern, then don’t enact the rule for anyone and we will all be able to live our lives with one less opportunity to be harassed.

            1. So the old ‘the law prevents the rich and the poor alike from sleeping under bridges…’

              1. Is that a cliche? I haven’t heard it. I don’t know what you’re trying to say. Too bad you didn’t just say it.

                1. It’s a saying that’s supposed to demonstrate that an on it’s face neutral rule or law can in reality have almost completely disparate impacts.

                  1. Then don’t enact the rule. I don’t want to be harassed by busybodies either.

                    1. It’s an exception to a rule, with those there’s often a thought good from the rule and a thought overriding good for some groups from the exception.

                    2. In other words, one rule for the non-preferred race of people and another rule for everyone else.

                      You know that’s bad, right?

          2. There is no profiling. I am a South Asian man who is often mistaken for Hispanic/Latino. Despite supposed profiling of Latino men, I have never been stopped by police (except when speeding), subject to additional searches at airports, etc. None of my South Asian friends have either, and very few, if any, black or Hispanic men I know have.

    2. “What made them think to try to enact such a rule to begin with?”

      Four years of college level indoctrination?

    3. What’s worse, there appears to be evidence that Black & Hispanic people are more likely to catch the Wuhan Virus — and hence THEY are the ones who should be wearing masks.

  2. Wait for it in the coming months, but employers are also of the opinion that it is OK for them to hire or promote on the basis of race (without it being any “plus” factor under an affirmative action scheme) and are openly doing so now because of the political climate.

    It will be interesting to see the discrimination cases that are filed in the next few months and how those end up working their way through the court system.

    1. Adidas is one such company. It has openly said that it will increase the Black / Hispanic percentage of its employees to 30%.

      Adidas has deep pockets too.

      1. Adidas is a has-been brand from the 1970’s.
        I didn’t even know they still were in business.

    2. Reverse discrimination cases routinely get tossed.
      Yet another reason why Joe Sixpack has lost respect for the courts.

      1. Yup discrimination claims against majority races definitely has a harder track in the courts, but I can’t see blatant discrimination getting a “pass” by most. It is technically illegal and even the liberal Warren court never signaled affirmative action type discrimination an outright exception to the general rule.

  3. The conclusion would have to be based on a strict scrutiny analysis.

  4. Oregon has recently passed many race based laws and/or distributed tax money by race in the last 6 months – local attorneys should be busy for years. As a transplant from the South, the PNW has a vary bizarre approach to race (which usually result in racist policies and the state constantly getting hustled). As far as a I know Portland and Seattle are the only cities that have had riots every night since the media pressed the initiate race war button.

    1. I think Soros has that button his computer keyboard right?

  5. Woah.

    That is a TERRIBLE local directive.

    Not that surprising, though. If you’ve ever dealt with local government (city, county), competence cannot be assumed.

    1. It’s why we are on the cusp of a populist revolt.

      1. The Great Clinger Uprising!

        No More Inconsequential, Bitter Muttering!

        A Half-Century Of Getting Stomped By Our Betters Is Enough!

        1. Kirkland might want to read up on the “Know Nothing” movement.
          That actually happened.

          1. Know nothing commenting actually happens too.

        2. When the “Great Clinger Uprising” occurs I want a front row seat and lots of popcorn to see how AK shits his pants…

  6. So the racist government of Lincoln County wants blacks to get the dreaded Communist Chinese Virus and die?
    Wouldn’t they be better off figuring out the new name for the county?

  7. You let people violate constitutional rules like equal protection long enough for what you think are “good” reasons, (Affirmative action being implemented as racial quotas, for instance.) eventually they forget that there’s a principle they’ve been permitted to violate.

    They just took things to the next obvious step: Stop pretending that we’re equal before the law.

    1. I’m struck by the trend of “good” versus “bad” lawbreaking: in Virginia, for example, vandalizing a statue of Columbus is “good” (and must be rewarded) while vandalizing a statue of Arthur Ashe is “bad” (and must be severely punished).

      We are indeed living in a time where constitutional rights (both Federal and state) have been set aside… and set aside for reasons not fully disclosed by parties not empowered to do so.

      1. Statues don’t have constitutional rights.

        But more to the point, while I don’t support vandalizing anything, I think the argument is that vandalizing a statue glorifying a bad person can be good while vandalizing a statue glorifying a good person is bad.

        1. While both are illegal.

          1. Do you think every illegal act is equally moral or immoral? So Susan B. Anthony trying to vote is the same as if Putin tried to vote (in our election)?

            1. Do I think the legal system is entitled to engage in that sort of analysis? No. (Except juries, who are there exactly to do that, in extremity.)

              Look, we fundamentally disagree about what is moral or immoral. Forget that left wing trope that we all agree on morality, and some of us just chose to do immoral things. We disagree!

              We create laws to embody the rules we can agree on. Deciding that the rules will only be enforced where somebody, (Who?) decides the illegal act is moral, breaks the bargain the law represents.

              We’ve agreed vandalism will be illegal. The law contains no exception for nice vandalism, because there’s no objective way to make that distinction, and we disagree on the subjective elements. Enforce the damned law, or stop pretending we have the rule of law, so we can get down to reenacting Mad Max.

        2. The owners of the statues, or of the land the statues are placed on, do have Constitutional rights.

    2. ” let people violate constitutional rules like equal protection long enough for what you think are “good” reasons, (Affirmative action being implemented as racial quotas”

      Is this happening a lot or ‘long enough?’ I thought affirmative action was limited (and in a limited scope) to educational institutions admissions (and I guess remedying proven cases of discrimination).

      1. A lot of non-educational institutions have racially discriminatory hiring quotas, it’s just that academia is kind of a leading indicator on doing that sort of thing openly.

        The key point here is that the only proof of discrimination needed is disparate impact, which makes the demand for non-discrimination into a de facto quota.

        1. “A lot of non-educational institutions have racially discriminatory hiring quotas”

          Citation?

          “the only proof of discrimination needed is disparate impact”

          Citation?

          1. I’m not going to accept that you’re an idiot, or were raised in a cave.

            You just want to deny that racial quotas exist, by pretending it’s not a quota until the people implementing it admit it’s one. It’s just goals that magically get met every year.

            Not playing that game, the existence of racial quotas in America is well established.

      2. I’m my experience in the corporate world it’s been going on for decades.

  8. Seems like the law is can be given a saving construction: white is also a color. So no one with concerns about profiling has to wear a mask.

    1. Is this true? I’m a photographer, and I always thought that “color” was defined as visible light with a specific wavelength. And that, therefore, white (mix of all wavelengths of visible light) and and black (absence of all such wavelengths) were *shades* and not colors.

      (Yes, I can imagine what would happen to you, if you walked up to a BLM rally and started calling the people there “Shades.” Linguistic subtleties having their proper time and place, of course.)

      1. Most whites are kinda pink.

        1. Technically, everyone is a shade of brown.

      2. Yeah man, I don’t even see color

      3. Light with a specific wavelength can only achieve a subset of visible colors.

        Colors really are a phenomenon of the mind and eye. The standard human eye has three types of color receptors, each with overlapping sensitivities over a fairly broad range. The relative ratios of activation define a color, but that same ratio of activation can happen in many different ways. For example you can cause a yellow sensation in viewers with true “yellow” light, or by a mixture of green light and red light (which do not blend to form yellow, but remain distinct, as can be seen by e.g. a prism). There are also “non-spectral” colors that cannot arise from any single wavelength — basically all magentas are this.

    2. Yes, but would Roberts want to jump through hoops to fashion a saving construction in this particular case?

  9. But racisms is a public health issue, and under the SAFETY exception to the Constitution, any local official, elected or not, may, by decree tell us that we cannot travel, leave our homes, protest the decree, peaceably assemble, etc., so why quibble over equal protection?

    1. Latest shooting of Black man — who shot at cops first.
      Wonder what BLM will say about this one. Yes, he shot first…
      https://ktla.com/news/local-news/l-a-county-deputies-kill-man-wound-woman-in-rosamond-shooting/

      1. I assume that this is just county officials overcompensating out of shame for their county being named after someone who is on the record making racist and hurtful comments such as:

        I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races; that I am not, nor ever have been, in favor of making voters or jurors of Negroes, nor of qualifying them to hold office nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I, as much as any other man, am in favor of having the superior position assigned to the white race. I say upon this occasion I do not perceive that because the white man is to have the superior position, the negro should be denied everything.

        (From the Lincoln Douglas Debate of September 18, 1858)

        I assume a task force is busily trying to come up with a new name for the county and when that is completed county officials will stop overcompensating and all the “individualis” in Lincoln County will be spared future shame.

        1. ARGH — Reason’s comment system screws up placement when you start a comment and, before submitting it, start another comment.

          My comment above was meant to be at the top level.

          1. “and, before submitting it, start another comment.”

            And does so in a predictable fashion, so I’m not calling this a bug. One comment at a time, if you decide not to post a comment, cancel the reply, and you’ll never encounter it.

            The system is buggy enough, we don’t need to treat predictable functionality as bugs.

  10. Look, there is a type of religious experience involved here, for lack of a better phrase. Uttering certain words constitutes blasphemy and will bring everlasting damnation and torment. Other expressions are a form of veneration and bring favor and untold blessings. I’m afraid I don’t have time to explain it to you in detail right now, but it includes a system of special dispensation that allows the faithful, by uttering a certain form of “prayer,” if you will, to receive forgiveness for their sins, past and future. This local government was merely engaging in such supplication. (They won’t know whether their petition will be granted until they see whether the ordeal bypasses them by.) Give them a break. They’re doing the best they can. Their clerisy is not to be trifled with.

    Please be advised that making light of this constitutes actual violence threatening people’s feelings, and that this is punishable by mandatory ritual self-abasement and self-banishment, to serve thereafter as an example for others. I fear that even the above will result in reason.com being demonetized by Google.

  11. Wonder how the regulation writer would define “people of color.” Would an Irishman who turned bright red because he stayed too long on a sunny beach qualify? How about someone from Sicily, Greece, Israel, or Egypt? And why is there is no provision for people of no color who fear being mistaken for a robber. After all, albinos are a persecuted minority in many parts of the globe.

  12. Anyone know of a liberty-minded law firm in Oregon this can be referred to?

  13. We need a law where everyone -regardless of age, sex, race, or religion – is required to wear these big Maz Kanata-like goggles that removes all color from being seeing by people. Then we can put this “racial stereotype” argument to rest once and for all.

    At least, until liberals find a new “cause” to justify vandalism with.

    Ok, I’m going to get back to my very private date night now.

  14. Follow-up Statement of Lincoln County Board of Commissioners and County Management Team: https://www.co.lincoln.or.us/hhs/page/statement-lincoln-county-leadership-62420

Please to post comments