The Minimum Rationality of COVID-19 Lockdown Measures

If California bans safe, outdoor dining, more people will eat together in unsafe, undistanced homes.

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Earlier this week, California announced new lockdown measures to prevent the spread of COVID-19. In certain zones, all indoor worship services are prohibited. This restriction very likely runs afoul of Brooklyn Diocese. California likely recognizes this violation, but will magically relax the rules on the eve of Supreme Court review.

The Governor's edicts will also prohibit all outdoor dining. Why? The state has not offered any actual evidence that COVID-19 has spread through outdoor dining. Indeed, struggling restaurants have invested a lot of resources to ensure that tables are spaced apart, and food is served in a sanitary and safe fashion. A reporter asked the Governor about outdoor dining. He replied:

"That's a fair question, I appreciate it and you're right. I do want Dr. Ghaly to speak more to that, because it's fundamental in terms of the work we've been doing with local health officers, with our advisory committees, with some of our national partners and advisors as well, not just the conversations we're having internally, but the bottom line, John, is we want to mitigate mixing, period, full stop. We want to diminish the amount of mixing and we really need to send that message broadly and we need to create less opportunities for that kind of contact and extended time of contact that occurs in many of these establishments and that is why we are moving forward."

Newsom cited zero data to support his order. If breakouts have been traced to restaurants, the state would likely have that evidence. But none was supplied. Newsom simply wants to "mitigate mixing" and send a message. Dr. Mark Ghaly, California's secretary of Health and Human Services, elaborated further:

"What we know is where you're not able to mask entirely or consistently, where they are indoors rather than outdoors, where physical distance is difficult to maintain, that each of those activities that we've been talking about for months as relatively lower risk when you can do all of the things we've discussed, but today, they're all a little more risky than they were a month ago. And that's just because we have more COVID in our communities, and it's able to transmit not necessarily more easily, but because we have more of it in our communities."

Again, the government has zero evidence that outdoor dining has contributed to the spread of COVID-19. All the Director can come up with is this behavior is "a little more risky" now that the community infection rate is higher.

Of course, every action has an equal and opposite reaction. If people cannot eat safely at outdoor restaurants, there is a greater chance people will eat unsafely in indoor homes. No matter how hard government tries, the state cannot eliminate the demand for communal gathering. They will simply force people to satisfy those demands in underground, illegal fashions. For example, when governments raised the drinking age from 18 to 21, the states did not eliminate the demand for drinking by college students. Instead, college students would stop drinking at bars–where there is at least some supervision–and start drinking illegally in frat houses and other unsupervised places. The Governor's edict here will have the likely consequence of forcing people to eat together, inside.

In truth, if the government was serious about stopping the spread of COVID, they would encourage outdoor eating, and actually prohibit people from gathering in homes. That latter, option, however, seems too Orwellian. Many governments flirted with this idea before Thanksgiving, but I doubt enforcement was ever realistic. Now, instead of taking measures that will be most effective, but unpopular, the states will send messages.

Imagine if these questions were posed during an oral argument, instead of during a press conference. With the rational basis test, the government could simply say, "We do not need any evidence. We think this regulation may work, and that speculation is sufficient." These arguments, however, crumble on the slightest scrutiny.

Update: An infectious-disease expert articulated my understanding of the "abstinence" approach to COVID-reduction:

The percentage of Angelenos staying home except for essential activities has remained unchanged since mid-June — around 55% — despite pleas from health officials in recent weeks for people to cut down on their activities, according to a survey conducted by USC.

A similar story has played out nationwide, as millions of Americans zigzagged across the country to visit family over the Thanksgiving holiday, flouting the advice of health officials.

"It's not because the public is irresponsible; it's because they are losing trust in public health officials who put out arbitrary restrictions," said Dr. Monica Gandhi, an infectious-disease specialist at UC San Francisco. "We are failing in our public health messaging."

Health officials are up against a fatigued public, as well as a number of people who don't believe in the danger of the virus, Gandhi said. But she is also part of a growing number of experts who think there's a better way to engage those who do want to take the pandemic seriously — by taking a lesson from the public health strategy known as harm reduction.

Typically used to describe sex-education programs and needle exchanges for drug users, harm reduction aims to mitigate the risks of dangerous behaviors instead of trying to get people to cease altogether.

When it comes to the COVID-19 pandemic, a harm-reduction approach would encourage masking and social distancing instead of demanding that people have no contact at all with friends or family they don't live with. In other words, even during a pandemic, abstinence-only isn't effective.

L.A., however, has adopted more of a "just say no" attitude. Last week the county became one of the only places in the nation to halt all outdoor gatherings among people who aren't in the same household, prohibiting two friends from meeting up in a park or going on a hike with masks on. Gov. Gavin Newsom followed suit and included the ban in his regional stay-at-home order.

NEXT: Circuit Justice Alito Walks Back De Facto Denial of Pennsylvania Emergency Appeal

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  1. “The Governor’s edicts will also prohibit all outdoor dining. Why? ”

    Because fascists gotta be fascists – – – – – – – –

    1. From downscale clingers,
      pandemic management tips
      are always a treat!

      1. Kirkland, please look into how the German National Socialist party came into power. People like you may well cause something similar to happen here.

        Please don’t.

        1. It’s the leader being granted emergency powers to vast acclaim that is the historical danger for dictatorship, not some orange guy they disasterbate about, who refused to do national lockdowns, and has an extremely healthy and large opposition.

        2. You’re on a tear about a new Hitlerian rise to power.

          But only one side is calling for martial law.

          1. Lol. “One side” is calling for martial law. It’s like five guys, but if you want to attribute it to an entire I won’t try to stop you.

            But then you’re gonna have to agree that “one side” is calling for communism, which is worse than martial law. You’re not ready to admit that one yet, I suppose.

            It’s amazing how politics warps otherwise functioning brains.

            1. They’re not like randos on Twitter, they’re part of Trump’s circle, one of whom he has pardoned, and other is leading the Fraud nonsense.

              But yeah, I’m not to worried about America becoming Nazi Germany anytime soon from either side; my point is that Ed’s latest dark dramatic prophecy is as silly as all the previous.
              I think you and I can agree on that.

              1. You and I most certainly agree on that.

              2. Sarcastr0….America will not become Nazi Germany. Period, full stop.

          2. Only one side is in open violent rebellion.

            Remember that Hitler was elected…

        3. Let’s see. It seems there was a lot of bigotry involved, extreme ethno-nationalism, cultlike worship of a leader.

          Something like that. I don’t remember anything about restaurants.

          1. Just to be clear, under the Newsom order,
            “all private gatherings of any size would be prohibited, and non-essential travel restricted.”
            from the Alameda County Statement on State’s Regional Stay-At-Home Order, 3 December

            1. Don,

              My intent was to mock Dr. Ed, not defend Newsom.

              I don’t live in CA, and am not familiar with the details of the order.

              1. If I take the order according to the plain meaning of the text, a person could not drive to her brother’s house for Christmas dinner.

                1. That’s actually the plain intent, too. He’s made that clear.

          2. Yeah, I seem to remember a lot of restrictions on Jews and limitations on their rights to worship… Nothing like that would ever happen here.

      2. Since my opportunities for going out are limited, I am having lots more unsafe sex to compensate.

        Is that the kind of pandemic management tips you are looking for?

  2. If Covid cases are the most important thing in California right now, then Gavin Newsom should resign as governor for the French Laundry incident. People aren’t going to listen to him or obey public health orders he doesn’t obey himself.

    If Covid precautions aren’t very important then Gavin need not resign. But then all the lockdown measures should be reframed as suggestions that you can do if you want, or not do as Gavin Newsom and numerous other politicians have chosen for themselves.

    No Gavin Newsom resignation means Covid isn’t that big of a deal.

    1. Newsom is a disgusting, corrupt, pig. Recall that as mayor of San Francisco, he illegally gave “marriage” licenses to deviant men.

      1. No, what he actually did was bad enough: He knowingly violated California law and issued marriage licenses to couples he knew weren’t eligible to receive them. Why is irrelevant.

        He knowingly violated California law.

        That’s relevant here.

      2. Being too obsessed with something to stay on topic is really unfortunate. You don’t have to be obsessed with [whatever].

        Your comment is like the people obsessed with their hatred of Trump. They can’t stay on topic either. Everything kept coming back to the object of their obsessive Trump hatred, just like anti-Semites always bring up the Jews or klan wannabes always bring up skin color.

        There are medications that can help if obsession becomes too much of a burden.

    2. To be fair Newsom isn’t all that essential so I don’t really care if he wants to go out and expose himself, so to speak.

    3. He does not have to resign; he can appoint himself US Senator

      1. Might as well. It could be someone a lot worse. It probably will be.

  3. “California likely recognizes this violation, but will magically relax the rules on the eve of Supreme Court review.”

    How does that not become “violation of civil rights under color of law”?

    As I understand it, ignorance is a defense — but how can California be “reasonably expected not to know” when it has just lost a SCOTUS case. We’re not talking an unpublished District decision here, nor something totally obscure like a nuance in tax laws — we’re talking a clear decision that even bubbleheaded newscasters can get right.

    And doesn’t this affect the exact same church that won the suit the last time? So you don’t understand that doing the exact same thing to the exact same church isn’t a violation of the church’s civil rights even after SCOTUS told you that it was?!?!?

    1. What case do you think California lost?

    2. He doesn’t say they’ll change it after they lose a case. They’ll drop it ON THE EVE of review. Immediately before. That will render it moot, no no ruling.

      It’s already worked for New York on a Covid restriction case this year.

      1. And NYC on a gun control law. Everybody knows the Court can be played that way.

      2. I think the court has to take it in anyway, even if they try to change it on the eve of the review.

    3. State governments and officials (acting in their official capacity) have 11th Amendment/sovereign immunity from federal court actions, and are not proper defendants on civil rights claims under Section 1983 in any event. All they have to worry about in federal court is an injunction under Ex Parte Young, and maybe an award of attorneys fees. In state court, there may be a claim under state law, but there is statutory immunity there too. Waiting till the last moment is not that costly an option for a state government, unlike a local government.

  4. We think this regulation may work, and that speculation is sufficient.” These arguments, however, crumble on the slightest scrutiny

    The burden falls on the plaintiff to disprove every conceivable rational basis. I’m not seeing how your “slightest scrutiny” meets that burden.

    1. He has inadvertently hit on the issue. You are right that, apart from religious and racial discrimination, everything else is subject to rational basis scrutiny, which in reality means no scrutiny.

      Question is why should that be so? There is no question that the California rules (and those in many other locales) severely restrict liberty. So why should that be justified on “well, it might work” guess with no data to back it up.

      Particularly when COVID has been around for some nine months, and there should be data to justify these restrictions.

      So, yes, I am looking for some discussion about the general restrictions on liberty and what government must do to justify them, even if they do not involve “discrimination” or restriction of particular rights, like religion or free expression.

      1. Question is why should that be so?

        Judges are not (with exceptions such as you noted) better equipped than the elected branches, answerable to the people, to weigh the benefits and harm of policies. Or putting it another way, we should not have legislating from the bench.

        1. One of the issue is these are “orders”…not laws being passed by the people. And they are extraordinarily broad.

          You can shut down a restaurant’s outdoor seating, but 50 feet away, a movie company can continue to shoot and feed its staff in large open tents.

          1. The California legislature passed laws granting the governor a broad ability to issue orders.

            1. Not surprising in a one-party state.

        2. Josh R….I totally agree with you on the two parts: Judges not better equipped, and should not legislate from the bench.

          BUT…Judges are there to protect our civil liberties when they are violated, and in this case, suppressed. The governor cited no objective data. He presented nothing. Worse yet, he is a hypocrite who does not follow his own mandates.

          As you say, CA is a one-party state and one-party states do tend to abuse their power. And that has happened here. This is why we citizens need the judiciary to protect our civil liberties.

          This is not March or April. Much more is known about the Wuhan coronavirus.

          1. The rational basis test does not require data. It merely requires a plausible argument that plaintiffs have the burden of refuting with data.

            1. To take away our rights….you should need much more than just a rational basis.

            2. Except that’s not how it works in practice. I have seen government lawyers say “here’s the theory,” and plaintiff lawyers produce voluminous evidence saying “here’s all the evidence that shows the theory,” and government lawyer produces no evidence, and courts still just say “it doesn’t matter, they have a theory.”

            3. Correct.

              So far, the successful anti-regulation lawsuits either showed a violation of constitutionally-protected rights, or a violation of separation of powers.

              Federal rational basis scrutiny is highly deferential, and only the most totally asinine regulations have a chance of being struck down.

  5. My lawsuit against Gov. Murphy made that point, zero rational basis. It avoided the scintilla of government interest in Salerno. The lockdown was even irrational because it allowed infected, but asymptomatic, young, health workers to travel to nursing homes, and to provide intimate care to moribund patients.

    It was dismissed with prejudice. I am filing charges of mass murder caused by the lockdown against my biased feminist judge and against Democrat NJ AG Grewal.

    Only elections can resolve this problem, and not the courts of the United States. The voters who put these Democrat governors in office still remain oblivious, even though they face ruin and death. These deaths will exceed those genuinely caused by COVID, and not fraudulently claimed, by an order of magnitude. I see a tragic mass delusion. Blacks and Jews keep voting for their mortal enemies, the Democrat Party. They are not even divided.

      1. That is the Democrat. It laughs at 130 million deaths from starvation, and at the 40% surge in deaths from despair, already here. All are from the Democrat Governor lockdown to win an election, and to further the profits of the tech billionaires. This is not the greatest mistake in human history. It is the greatest mass murder in the shortest time, in history.

        1. Just a reminder that you actually wrote this in your complaint: “… despite the fact that there are far more serious contagious epidemics in the United States and in the State of New Jersey, and despite the fact that it remains unknown what the true denominator of the mortality rate of novel coronavirus is, and despite the fact that other jurisdictions have had complete success in eradicating the coronavirus simply by quarantining those who tested positive for the illness while allowing all others to go about their lives as usual … .” No wonder Judge Wolfson dismissed your asinine complaint with prejudice. I’m sure your complaint was a source of great amusement in the Trenton courthouse.

        2. P.S. Wear a f****** mask and stay the hell home.

          1. Where do you More? How is mask wearing and destruction of the economy working there?

          2. More, put on your mask, and take a walk on a nearby college campus. Report back in 2 days.

        3. I’m not a Democrat. I laugh at you because you’re an idiot, and of COURSE your lawsuit – if it even exists, was dismissed.

          You should be dismissed with prejudice around here. You’re a delusional joke.

  6. This is the true takeaway from things like the French Laundry incident (Newsome lied about the dinner being outdoors, FFS. Quite Trumpian.)

    The repeated failure of politicians to obey the rules should be a sign that what they’re asking is unrealistic. So yes, encourage people to gather and eat outdoors, have socially distanced religious services, etc. Otherwise people just break the rules.

  7. So I guess all the people saying the BLM riots were okay because they were outside were full of shit?

    1. We already knew that, right?

    2. Covid does not spread at social justice riots because of the magic of diversity. Everyone knows this.

  8. What we need, and I plan to take this up with my legislators, is a state constitutional amendment that says: (1) every emergency order or declaration of emergency is reviewable by the courts, and must meet a higher test than “rational basis” to be upheld, and this review trumps (and need not bow to) any declaration of “fact” in an executive order or statute; (2) if one or more officials are found to have hypocritically violated the letter or spirit of an emergency order, that constitutes admission by the official in his official capacity that the precaution is not really necessary and is admissible as evidence to overturn the order; and (3) business owners shall be entitled to due process, so that business licenses can no longer be revoked or refused on a whim.

    I will name it the Pelosi’s Hairstyle and French Laundry Act of 2020.

    1. You could put the two together. Pelosi’s hairstyle looks like it could have been made in a laundry. On the high-spin cycle.

  9. “Diocese” was a political stunt by Gorsuch looking to make his mark, he could not give a flip whether there are 10 people in a church or shul, or 1000. I say, a pox on both their houses!

  10. “For example, when governments raised the drinking age from 18 to 21, the states did not eliminate the demand for drinking by college students. Instead, college students would stop drinking at bars–where there is at least some supervision–and start drinking illegally in frat houses and other unsupervised places.”

    It wasn’t that as much as the student affairs folk could no longer supervise the frat houses and such because they’d have to bust everyone for drinking if they did.

    So the undergrads were drinking in secret — and this is when date rape started becoming an issue.

    1. (A) It was a dumb line from Blackman, since 18-21 year olds were drinking in fraternity houses long before the increase in drinking age and since many fraternities and sororities have instituted alcohol free housing to various degrees.

      (B) The suggestion that student-affairs folk can’t supervise fraternity houses, but could before, is laughable. Many fraternities have housing provided by universities, and those that don’t are constantly under the watch of student-affairs administrators, who will invoke all sorts of sanctions for off-campus events, including those at non-official fraternity houses.

      (C) I suspect date rape is actually less of a thing these days than it was in the 80s and 90s, when much of it was seen as boorish behavior by drunk men. These days, it turns into a Title VII issue, and universities have too much to lose not to aggressively pursue allegations that previously would have never been brought to administrators (or, that if were, would have been disregarded as not a university issue).

  11. I thought Adolf Hitler was just elected in Africa, not California?!?!

  12. How is the mask mandate and the lockdown working for Democrat jurisdictions? The epidemic is bustin’ case and death records.

    How about trying the traditional epidemiology that has worked since 14th Century, that worked everywhere it has been done, without any economic devastation? How about complying with the quarantine law of New Jersey permitting the locking down of the infected, not of the general population?

    I want this Judge held accountable for the mass murders she has suborned. I may seek to pierce her immunity, and to make an example of her. I would refuse any damage from the taxpayer, and will try to reach her assets. Sovereign immunity has its origin in a psychotic idea, that the sovereign speaks with the voice of God. Judge immunity violates the Establishment Clause by its bullshit justification. That immunity did not operate at Nuremberg. I want to try her for her crimes against humanity. Naturally, she is the daughter of Holocaust survivors. Welcome to the frickin’ twilight zone.

    1. How are the lockdowns working for Democrat jurisdictions.

      About the same as in republican jurisdictions.
      The timing and seasonal patterns in the various regions of the country and the various regions of the world are following patterns consistent with prior influenza epidemics and out breaks. The extent of the lockdowns, mask wearing has resulted in very little deviations from prior patterns.

      A recent example is Colorado which for all practical purposes experienced their first wave starting in September. The compliance rate in is much higher than the compliance rate in Texas, yet during the period from Sept through Nov, the infection rate in Colorado was running 2.5x to 3.0x the infection rate in Texas. Similar pattern in Idaho, Montana, ND, SD, Wisconsin. All with similar infection rate patterns, all with vastly different compliance behavior.

      Consult any old influenza textbook

      In summary, mother nature is in control, not the democrat governors or the republican governors

      In Summary,

      1. Yes, comply with the state laws on quarantine, and with 14th Century epidemiology principles. These confine the infected. Confining the non-infected is to promote the interests of the tech billionaires who own the media and the Democrat Party. They want to please the Chinese Communist Party to access it market. This would enrich them, and hurt the interest of the American people.

        1. Lockdowns and mask mandates based on
          A) extremely short time frame outlook
          B) extremely naive view that a virus deeply embedded into the general population can somehow be eradicated via lockdowns or have a major impact of the suppression of the spread
          C) complete ignorance to the lasting harm to those they claim to be trying to protect, including but not limited to serious delays in educational development which hurts the poor and minorities the most, intentional retardation of the development of the human immune systems from this virus, along with all the other viruses, which will likely have far worse long term impact.

  13. This guy is really on a roll.

  14. The Democrats, here, in the media, and in office are good Germans.

  15. Newsom cited zero data to support his order.

    The notion that isolating people in their homes reduces opportunities for contagion hardly requires study.

    But even if you disagree, the courts should not set themselves up as arbiters of that kind of necessity in an emergency. And especially not in any emergency where emergency powers have been expressly authorized by a legislature. The degree of necessity for emergency action ought to be for legislatures to determine, and not for courts to review.

    Emergency powers are always potentially dangerous—whether in instances of using them too much, or using them too little. It is unwise to increase that danger by taking political accountability out of the mix, and replacing it with judicial non-accountability.

    1. If government actions during an emergency aren’t subject to review, emergencies will never end. It’s as simple as that.

      Or they won’t end until the people get fed up and end them by force.

      1. If government actions during an emergency aren’t subject to review, emergencies will never end. It’s as simple as that.

        This is just nonsense. Your main support is your usual speculative telepathy.

        1. Sarcastr0….True or false: Since December 7 1994 (POTUS Clinton), there has been a declared national emergency of some kind, by at least one agency of the Federal government…for 9,498 days?

          Answer: True

          https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States

          The concern is quite real.

        2. I gotta go with Brett on this one. Power is attractive to people in power; relatively few willingly cast the One Ring into Mt. Doom.

          N.b. I’m not asserting that politicians are inherently evil; I can be a nice guy, but let’s be honest – as mayor, my job is easier if y’all shut up and do what I tell you. That is corrosive over time: ‘power corrupts, and absolute power corrupts absolutely’.

          Moreover, I’m kinda on the side that many of the covid restrictions[1] are reasonable, in the same way that a few days of curfew after the hurricane or riot are reasonable. But prudent business owners count the till at the end of the day, and prudent citizens should keep a wary eye on emergency powers.

          [1]to be sure, they haven’t been perfect, but few improvisations are.

          (and did I mention that the politicians that flout their own rules should resign in disgrace and find other careers?)

          1. “Moreover, I’m kinda on the side that many of the covid restrictions[1] are reasonable, in the same way that a few days of curfew after the hurricane or riot are reasonable. ”

            Concur – In March, it was reasonable to impose lockdowns, at least long enough to get a grasp / understanding of the virus.

            However, we now know the pattern of viral spread is largely unaffected by attempts via lockdowns / masks. The best example is the current spread in Europe, and many of the Northern states in the US. MT, ID, WI, CO, SD, ND. All with vastly different levels compliance of compliance with masks & lockdowns , yet with very similar Infection rates.

            1. Counterpoint: Minnesota had a mask mandate and higher levels of lockdowns than either of the Dakotas, Iowa, or Wisconsin. And for a couple months, it was able to keep its numbers down while they dramatically increased in the other states. Minnesota’s numbers have since flipped and are bad, though not as bad as in the Dakotas (and only recently worse than Wisconsin, which has since instituted more restrictions).

              1. 91-divoc . com shows MN, WI, IA, ND, SD, NE for all practical purposes having their first wave starting in sept. The infection rate patterns are strikingly similar across each of the states. Same with the infection rates during March, April along with the rest of the summer.

                Go to the chart by state normalized by 100k population. The advantage of this website over worldometers is the ability to obtain state data normalized by 100k population

            2. Joe_Dallas. We do not know what you say.

              Without federal support to at least partly defray the costs of a lockdown, governors vacillate, and revert to magical thinking. They are doing it all around the nation. Exhibit A would be Republican Governor Charlie Baker of Massachusetts.

              With the help of federal relief, Baker handled the first wave like a champ. He locked down, and put an initially-hard-hit state into much-healthier condition. He deserved the praise he got. Now he twiddles his thumbs, and watches as what two months ago had been a notable anti-Covid advantage for Massachusetts evaporates.

              There are several times more virus in the state now than when the March lockdown went into effect, but no financial support to lock it down again. So Baker mumbles and temporizes. That provides the makings of a catastrophe, for which Baker stands to be blamed, but it won’t be just his fault.

              Baker is only doing what many other governors across the nation have been doing.

              1. 91-divoc . com shows massachusetts to have very similar results to the rest of the states in the north east.
                What Gov D or what gov R did or did not do have little effect in the infection rate patterns. Same across Europe

        3. Sarcastr0, you’re pointing your skepticism in the wrong direction here.

  16. Josh reminds me of Richard Epstein just a little bit more every day.

    This is actually an insult, but he probably doesn’t see it that way.

  17. I think that absent an enumerated fundamental right, the court should not micro-manage state decisions regarding how to manage a pandemic.

    Perhaps religion should get most-favored-business status. But decisions between, say, liquor stores and bowling alleys should not be upset by the federal courts just because federal judges think their priorities are wiser or more politic.

    This is consistent with my long-held view that judicial review should be deferential absent specific textual bases for heightened scrutiny, and should not involve the mere substitution of judges’ views for those of the political.

  18. And I agree wirh Stephen Lathrop that the political branches are accountable to the people, while judges are not. Unaccountable people who think they know better are more dangerous than accountable people who think they know better.

    1. I rarely agree with Stephen Lathrop, but in the limited instance of federal judicial scrutiny of a pandemic policy that neither burdens fundamental rights nor discriminates on the basis of suspect classifications, I agree.

      I do note that rational basis scrutiny would not stop a great many things, from racial segregation of public schools, to bans on handguns, to bans on flag desecration.

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