Breaking: California Lifts All "Location and Capacity Limits on Places of Worship"

"In response to recent judicial rulings, effective immediately, location and capacity limits on places of worship are not mandatory but are strongly recommended."


This afternoon, California lifted all location and capacity limits on places of worship. After five rebukes from the Supreme Court, the Newsom Administration has finally thrown in the towel. I will have much more to say about Tandon v. Newsom soon.

Here is the guidance:

In response to recent judicial rulings, effective immediately, location and capacity limits on places of worship are not mandatory but are strongly recommended. The linked guidance is in the process of being updated. All other restrictions in the guidance remain in place.

Tier status

Widespread (purple)

  • Outdoor or indoor with modifications
  • Indoor activities are strongly discouraged and should be limited to 25% of capacity

Substantial (red)

  • Indoor with modifications
  • Indoor activities should be limited to 25% of capacity

Moderate (orange)

  • Indoor with modifications
  • Indoor activities should be limited to 50% of capacity

Minimal (yellow)

  • Indoor with modifications
  • Indoor activities should be limited to 50% of capacity

The state still has stringent restrictions on singing and chanting.

Singing, chanting, and playing wind instruments

Singing, chanting, playing wind instruments, and similar activities are permitted subject to the restrictions below. Workers or volunteers who are providing vocal, instrumental, or other music for a service or ceremony but sit or stand separately from the visitors or congregants are "performers." Additional or alternative modifications for performances may be required by the forthcoming Live Performances guidance.

For outdoor activities:

  • Performers must follow the guidance for outdoor live events and performances.
  • Use of face coverings is mandatory except when actively eating and/or drinking. Exemptions identified in CDPH's guidance for the use of face coverings are allowed.
  • Discourage audience members from singing, chanting, and similar practices that may increase the likelihood of transmission from contaminated exhaled droplets and aerosols.

Widespread (purple)

  • Performers singing, chanting, playing a wind instrument, or engaging in similar activities indoors must wear face coverings at all times.
  • Such performers must maintain at least 12 of physical distance from other performers and 24 feet of physical distance from visitors or congregants.
  • During a single service or ceremony before a live audience, no more than 10 performers may sing, chant, play wind instruments, or engage in similar activities.
  • Performers are counted toward the occupancy capacity limit.
  • Performers are strongly recommended to obtain a negative PCR test within 72 hours prior to the service.
  • Houses of worship should improve ventilation as much as possible.

Substantial (red), Moderate (orange), and Minimal (yellow)

  • Performers singing, chanting, playing a wind instrument, or engaging in similar activities indoors must wear face coverings at all times.
  • Performers must maintain physical distancing from congregants or spectators and other performers.
  • Performers are counted toward the occupancy capacity limit.
  • Performers are strongly recommended to obtain a negative PCR test within 72 hours prior to the service.
  • Houses of worship should improve ventilation as much as possible.

Recorded performances

When making a recording without a live audience for later use at a service or ceremony, performers may sing, chant, play wind instruments, or engage in similar activities without face coverings if the following conditions are met:

  • Each performer has taken a laboratory-based PCR diagnostic test (i.e., not a rapid test) that yielded a negative result within 72 hours prior to the recording session.
  • Performers must maintain six feet of physical distance.
  • Any additional individuals involved in making the recording must wear face coverings at all times.

Follow this guidance for places of worship(this is a pdf file) and providers of religious services to support a safe, clean environment for congregants, visitors, workers, and volunteers. Places of worship include:

  • Churches
  • Mosques
  • Synagogues
  • Temples

This guidance also applies to cultural ceremonies like weddings and funerals.

Review the guidance, prepare a plan, and post the checklist for places of worship(this is a pdf file) and cultural ceremonies to show everyone that you've reduced the risk.

NEXT: City Council Member Owes $47K in Attorney Fees, for Losing Harassment Restraining Order Case Against Critics

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  1. Beat someone over the head 5 times, they finally get it.

    1. We’ll see. California is acting like Virginia did in 1955, attempting to suppress the rights of religious individuals and groups (as compared to African Americans)

      I expect we’ll see another tactic soon.

      1. I’m thinking that we might already have seen it.

        In terms of *civil* liability, what are the implication of the state’s “strongly recommend” standard? Does this create a presumption of negligence on the part of the church?

        And what are the implications of that were one wishing to maliciously attack said church?

        –Cue the ambulance chasing attorney’s ads here —

        1. That was my reaction: Their fallback position is encouraging lawsuits.

          1. Maybe wait till a thing happens before you start talking about it.

            1. Right, right, walk into every attack pretending you can’t see it coming.

              Sarcastro, California has been slapped down on this topic enough times recently that they don’t really deserve the benefit of the doubt.

              1. Preclearance for California regarding any order or law that may impose on religion.

                Perhaps it’s time.

                1. Pre-clearance in the case of civil rights violations ought to be more widely used, and not just in the case of racial discrimination.

                  The problem that led to Shelby County v. Holder was that Congress was deliberately not updating the pre-clearance list, which was half a century out of date. They were also pretty transparently using pre-clearance to block perfectly constitutional laws that they just didn’t like.

                  1. Exactly. A policy based on data from 50 years ago should be revisited. But now California and New York are continually using their powers to violate freedom of religion.

                    Preclearance should begin to be required here.

        2. I don’t see the possibility of civil liability. Anyone who attends knows the risks involved.

    2. Bob, Gavin will never “get it.”

    3. Ain’t that the truth = Beat someone over the head 5 times, they finally get it.

      Time for something similar in the People’s Republic of NJ.

  2. So Newsom has finally seen that if he wants to stay in politics that he had better listen to the voters. That is a wise political decision right here before the recall election is held.

  3. I’m surprised he caved. He surely had enough support from federal courts in state to keep evading the Supreme Court for a while longer.

    1. I think not.

      SCOTUS has been acting quickly and decisively, and these losses make big headlines right when Newsom cannot afford them.

  4. Here’s hoping we can roll vaccines out fast enough that the team-red judicial activists ( don’t kill too many Californians.

    Are we really going to pretend that indoor singing isn’t dangerous next? And require those of us with common sense to ignore it? How much of a theocracy will satisfy Josh?

    1. Even I’m not this concerned.

      1. Then I suppose we disagree. Overruling a “no gathering of more than three families in a home for any purpose” rule because grocery stores exist is bad.

        Doing it because we will now treat religious objections to regulation under a global most-favored nation rubric is going to create a radical change in our country. After all, private corporations can have religious preferences (Hobby Lobby), and what limiting principle is their on the range of regulations they want to avoid because somewhere a secular exception exists?

        And, more to the point, which of those lines will our five-justice activist majority preserve?

        1. We had the exact same policy in place for a long time during the 60’s, 70’s and 80’s (Sherbert v. Verner).

          And we didn’t exactly fall into a theocracy during those decades.

          Just respect people’s religious beliefs. It’s that simple.

          1. Eugene said

            But while the “strict scrutiny” test in race and free speech cases was generally seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, in religious freedom cases it was “strict in theory, feeble in fact” (Larry Sager & Chris Eisgruber’s phrase). The government usually won, and religious objectors won only rarely.

            1. Anything is better than the previous Plessy v Fergurson type ruling where you can carefully select the “comparable” types of organizations to religious ones, and put the law or order in place to just affect the “comparable” organizations while avoiding or creating exceptions for all other desired organizations.

              It was basically turning into a new version of “Separate but Equal.”

          2. It’s not that simple. At all. In the very case we are discussing, for example, people’s religious beliefs will worsen public health and spread disease. Or say you’re a Quaker-run business opposed to supporting the US Military, certainly SOME “person” is exempted from taxes you have to pay that do so. Or say you’re a Satanist or other religion designed to test Christian theocratic rulings, and claim a sincere religious belief to do any number of absurd things that some other “person” can do.

            Where’s the limitation this Court will accept?

            1. The court agrees that there’s a compelling government interest here, and all the state had to do was show that these rules are the least restrictive way to accomplish their interest.

              They had a year to do it, but they chose not to.

            2. “At all. In the very case we are discussing, for example, people’s religious beliefs will worsen public health and spread disease. ”

              But, no worse than secular activities the state permitted. That’s the basic point here: The state is constitutionally precluded from declaring religious exercise unimportant, and subjecting it to stricter regulation than activities it thinks valuable.

            3. A compelling government interest, narrowly tailored, in the least restrictive way.

              That’s all you need.

          3. Theocracy won’t come until the Supreme Court manages to vitiate the Establishment Clause – which is on the agenda, to be sure, just not implicated by the FEC line of cases.

            As for the rule being developed here, the result will be maybe not Christian theocracy but certainly Christian supremacy, particularly as these ridiculous holdings on COVID restrictions spread to all of the fronts of the cultural war, be it same-sex marriage, transgender rights, abortion and contraception access, and so on. There will be one set of rules for those of us with no “sincere belief” that runs contrary to them, and then another for those whose Bible apparently speaks to the complexities of human sexual behavior and body autonomy.

            Perhaps that will become more evident to you, once the Court carefully cabins its FEC holdings to make clear that the only ones entitled to rely on them are the Jesus-flavored mystics. That might take a few years.

            1. You’re just citing a parade of horribles as a way to suppress religion and religious belief.

              In many ways, it’s no different from those people who were scared of what would happen if you gave African Americans freedoms. “Oh no, what bout this and that!”

          4. Armchair, not so much, “respect.” More like legally mandated support.

            Even you ought to see that this makes large swaths of public health policy off limits. In a notably worse pandemic than this one, the price for that could be millions of avoidable deaths.

            The saving practical reality is that in an extreme pandemic, with literally millions of lives obviously at stake, governors and the national government will defy the Court, and the people will back government overwhelmingly for doing it.

            There was a time when the Court was smart enough not to put itself in such a position, but not now. Religious zealots working arm in arm with limit-the-government ideologues is not a recipe for measured decision making.

            1. So, you think that merely not being imposed upon is ‘support’?

              Look: The reason the state kept losing is that they were treating religion WORSE than other activities.

            2. “Even you ought to see that this makes large swaths of public health policy off limits.”

              No, you just don’t like the fact you can’t SPECIFICALLY TARGET religion anymore.

              If you want to make a large ruling to protect public health, then you can do that. If you want to issue a statewide “stay at home” order, where people can’t leave their houses due to the pandemic, then you can do that.

              What you can’t do is issue a statewide “stay at home” order, then say “but you can go grocery shopping…and to the hardware store…and to the barber…and to child care…and make movies…and go to the casino…and to your local restaurant…but no going to religious services”.

              Because that targets religion.

            3. lathrop…Strict scrutiny is the appropriate standard here.

              If the government going to suppress my enumerated rights, then the government has to show there was no other way to achieve their objective…period.

              1. Even that reads amendments 1-8 as though they had an invisible, “unless there’s a good reason” clause. Which they don’t.

                Not that I expect to ever see the day that the Courts stop enforcing that invisible escape clause to every right.

                1. Brett,
                  There is no basis in either precedent or case law to uphold your opinion at the “enumerated rights” are absolute.

              2. Commenter, I thought you were aware enough not to join the crowd that begs the question whether your enumerated rights are suppressed.

                1. Josh R….Look around you = the question whether your enumerated rights are suppressed

                  This blog is about religious free exercise rights, and their suppression by a state government (wrongly, I might add). But how about we talk 4th and 5th amendments, and how our rights are routinely violated by the federal government every day.

                  1. You beg the question that a neutral law that incidentally burdens an exercise of religion suppresses the enumerated right of free exercise of religion.

              3. Commenter_XY, I have been urging in this thread and elsewhere that strict scrutiny has gone out of control. To assert a need for case-by-case tailoring is not just to outlaw the policy which led to the case. It extends farther, by denying legislatures useful jurisdiction over questions of necessity and means.

                It is not reasonable to demand that every law and policy be tailored to hold harmless every individual potential plaintiff. The facts of cases will always be too various to permit that. It is enough that exceptional plaintiffs, who have been harmed in the exercise of their rights win their cases, and get remedies.

                Strict scrutiny as it is now being practiced goes far beyond that more-restrained view of constitutional distribution of powers, and asserts instead the Court’s almost unlimited jurisdiction over all laws and policies which touch on questions of rights. If that were not so, Josh Blackman would not now be crowing that the Supreme Court had struck down California’s attempts at pandemic counter-measures.

                Take away from legislatures the power to find necessity for legitimate lawmaking, and the choice of proper means, and you leave little more for the political branches to do but rubber stamp policies initiated by the courts. I get that some folks want it that way, but I think it is unwise.

                1. Really? Tell me where strict scrutiny is out of control, lathrop. Name it. Federal and state governments have a wide purview, but there are just some things that are simply forbidden. Arbitrary suppression of religious free exercise rights is one such area: No can do.

                  As a general proposition: The government (federal, state) must have an especially high bar to surmount to suppress our enumerated rights.

                  1. Commenter_XY, strict scrutiny is out of control whenever a judge tells a legislature that a proper means to a constitutionally legitimate end—embodied in a generally applicable law—is not available because not tailored narrowly enough for one particular case. If the end is legitimate, and the means chosen is not otherwise prohibited, then choices among generally applicable laws to provide a means are a legislature’s responsibility, not a court’s responsibility.

                    If generally applicable laws result nevertheless in a violation of rights in a particular case, and if those violations cannot be justified under emergency powers, then the court’s responsibility extends to deciding for the plaintiff, not to striking down a law which may be legitimately suited to a host of other cases, or even to every other case. Without throwing strict scrutiny out altogether, that is the only standard which can keep political accountability in the system. In American constitutionalism, judicial supremacy is not a thing.

            4. Stephen,
              We see two conflicting forces at work. The crazies who believe that the pandemic is a fraud and state officials who chant “we follow the science” but actually can offer no scientific evidence for their decisions especially when they are not facially neutral.

              I saw this myself at the beginning of the pandemic. With every new order I wrote to the director of public health to ask for relevant quantitative data. The first two time I got a meagre but arguably acceptable response. The third time I got a robo-email thanking me for writing and promising information in a few days. That information never came. Subsequent queries received no response at all, despite the fact that I made no arguments but only asked for quantitative data.

              When the government acts like that, it does not get my support. Their “trust the science”is just a BS slogan.

        2. “Overruling a “no gathering of more than three families in a home for any purpose” rule because grocery stores exist is bad.”

          Sure, doing it because they “exist” would be stupid. Doing it because they’re considered safe enough to operate?

          Totally reasonable.

          “Doing it because we will now treat religious objections to regulation under a global most-favored nation rubric is going to create a radical change in our country.”

          I dislike arguments based on the demand that I pretend I have amnesia. Unemployment Division v. Smith, was decided as recently as 1990.

          I do not recall living in a theocracy prior to 1990.

          1. One of the more interesting maps is that of the states which have passed or considered RFRA laws in order to protect religious freedoms.


            Notice anything about the states which defend religion…and those that don’t?

            1. One person’s defense of religion is another’s unwarranted favoritism. But that being said, the problem with reversing Smith is the decision to exempt religious conduct should be made by the elected branches, not the courts.

              1. The first amendment called.

                1. You are the world’s champion at begging the question.

                  1. Thank you for using begging the question correctly. I see about 99 to 1 incorrect use of begging for raising.

                  2. Sigh.

                    Point 1: The founders and elected branches DID put the first Amendment into place, which protects religious freedom. If you’re asking about “elected branches”

                    Point 2: Smith itself was simply a SCOTUS court decision which overturned a previous court decision. Just like Brown v Board of Education overturned Plessy v Ferguson.

                    Why should elected officials be required to overturn Smith, when the courts can recognize their own bad decision with Smith, and can overturn it for themselves. Just like they overturned their own previous bad decision with Plessy?

                    1. Sigh indeed.

                      You beg the question when you argue the reason Smith was wrong is the First Amendment demands that neutral laws which burden religious exercise be subject to strict scrutiny (you have reached your conclusion about what the First Amendment requires by assuming your conclusion about what the First Amendment requires).

                      Your analogy to /Plessy. is misplaced. Plessy permitted intentionally separate facilities so long as they were equal in quality. Smith does not permit such disparate treatment of religious exercise.

                    2. You ‘beg the question’ when you write so as to encourage asking a question, or argue using the truth of your proposition as an unstated premise.

                      Perhaps he should be explicit that we actually expect constitutional rights to be enforced, not just blown off. It’s kind of horrifying that needs to be said.

                    3. The way California is applying Smith is equatable to Plessy or worse.

                      It extremely narrowly defines “comparable” activities, to essentially put religious activities in their own category, with perhaps one or two other small items. Then proceeds to ban them or severely limit them.

                      New York isn’t any better, having “red areas” which correspond closely to religious orthodox areas.

                    4. we actually expect constitutional rights to be enforced

                      … he said as he used the truth of his proposition (a neutral law that burdens religious exercise violates a constitutional right) as an unstated premise.

                    5. Armchair, I think your analysis of the California regulations is wrong. In Tandon, religious and secular at-home gatherings were treated exactly the same.

                    6. Josh,

                      Again, extremely narrowly defining “comparable activities,” always to the detriment of religious activities.

                      You can rent a private sports suite with 10 different families to watch a game. Because, well, rich people want to be able to watch sports in person.

                      But you can’t have 3 different families in your home for religious observation. Because only poor religious people do that. They don’t have influence like the rich people with their private sports boxes.

                      This type of discriminatory actions, which impede both religious freedom and freedom of assembly is why the laws and orders are so devastating. These people don’t have the “influence” that those with the rich private sports boxes though. And it’s exactly why their rights need to be defended from supposedly “neutral” laws…

                    7. “Why should elected officials be required to overturn Smith”
                      Because that is their job for which the People elected them.

                    8. Armchair,

                      Can you rent a private suite and have 10 different families for a religious observance?

                    9. Josh,

                      You’re getting further and further afield here, with the arbitrary nature of the law.


                      6 different families could each get an individual membership for a private suite to an Oakland A’s game at $99 a piece, and then use that time to do their religious observance, rather than watch the game. But they couldn’t just do the same at their home.

                      What’s the difference from a health perspective? Zero. So, why are they treated differently? (Because rich people like to watch baseball games and have more political sway, that’s why).

                      Let’s argue this differently.

                      Let’s just put all polling places inside of country clubs. You just need a membership to the club to get to the polling place. Nothing wrong with that, it’s a nice neutral law. It might incidentally discriminate against African Americans, but it’s a neutral law, so it’s fine. The African Americans can just buy membership to the country club. That in essence is your argument here.

                    10. Your voting hypothetical is permitted by the Constitution. It may or may not be permitted by the Voting Rights Act.

                    11. That’s your stance?

                      It’s OK to restrict voting sites to just inside country clubs that require membership to get into them according to the Constitution?


                    12. If the state can articulate a rational basis for the regulation, yes (they would be pretty hard pressed to justify membership). On the other hand, if it is a pretext for racial discrimination, no. Poll taxes were deemed constitutional (they were outlawed only by an amendment).

                      Kagan offered the hypothetical of polling places only in country clubs without a membership requirement in oral arguments in Brnovich. No one argues that is unconstitutional even if blacks have to drive much further to get to the polls. That’s because
                      Washington v. Davis established neutral laws that incidentally impact blacks (or any race) are constitutionally permissible.

                    13. Did you actually listen to what was said in Brnovich?!?! Here’s the text.

                      Elena Kagan
                      Thank you, Mr. Carvin. Can we go — just go on to another one? The state says we’re placing all our polling places at country clubs. And that decision means that black voters have to drive 10 times as long to the polls and have to go into places which, you know, are traditionally hostile to them.

                      Michael A. Carvin
                      Yeah, I would think that would provide them with less opportunity than non-minorities —
                      Elena Kagan
                      And why is that?

                      Michael A. Carvin
                      — or else they’d — well, because they have to travel further into hostile territory where non-minorities can — can travel one block to very sympathetic.

                      Under any definition of —

                      Elena Kagan
                      Okay. That’s helpful.

                      Just so you get it entirely, that’s the State of Arizona saying that putting polling places just in Country Clubs would be wrong. They don’t even get to the constitutional assessment within the hypothetical.

                      But apparently, you think it would be entirely OK. Which is nuts.

                    14. Of course it is wrong, but Kagan and Carvin were not discussing right and wrong. Kagan was presenting Carvin with various hypotheticals to test his argument about when the Voting Rights Act is violated.

                  3. Josh…

                    The dissent from the 9th circuit really shows the discrimination against religion by California.

                    “The disparity of treatment between secular and religious activities is even more pronounced when we consider the outdoor-gatherings rules. Under California’s restrictions, except at places of worship, outdoor gatherings for religious activities are subject to a three-household maximum. Nevertheless, outdoor gatherings for rallies and protests are subject to no household maximum, so long as attendees stay six feet away from others of different households. Accordingly, if Wong and Busch move their Bible studies or prayer groups to their backyards, the three-household maximum would still be in effect. But if a political party or organization wants to hold a rally or protest at the same or any other location, then maximum household limits are off the table. Under the Constitution, what’s good for political rallies and protests should also be good for religious worship. In other words, California cannot treat religious exercise worse than political expression.”

                    1. Firstly, I believe only the in-home gatherings were at issue in this case. But secondly, assuming for the sake of argument outside gatherings were also at stake, we are back to the question of what is “comparable” and who has the burden for establishing that, one way or the other.

                    2. I just quoted the actual dissent.

                      Here’s the problem. You can have a BLM protest in your backyard at your own home, with 10, 20, 30 different families. But you can’t have a religious observation with just 4 different families.

                      The law/order is discriminatory against religion.

              2. Josh R….No = …the decision to exempt religious conduct should be made by the elected branches, not the courts

                The Courts are the last bastion to preserve and defend our enumerated rights.

          2. Remind me, was Hobby Lobby before or after 1990?

            Lets try it this way, what regulations can we impose on a corporation that claims a religious objection?

            1. Show there’s a compelling government interest and that the proposed regulation is the least restrictive way to accomplish it.

              Not that hard. Do the work.

              1. mulched, you left out, do-it-case-by-case, to make sure that every factual twist and turn gets properly tailored for. In an emergency, you can’t tailor public health policy one plaintiff at a time.

                1. All they had to do was issue a general rule that didn’t hinge on whether a particular gathering was religious or not. The court didn’t require an individual, case by case evaluation.

                  They refused to, because they wanted to treat religious activities worse than comparable secular activities.

                  1. The regulation struck down in Tandon didn’t hinge on whether in-home gatherings were religious or not.

                  2. Brett, you’re not a lawyer. I’m not a lawyer. My impression is that strict scrutiny requires individual tailoring. Any lawyers who want to set us straight? Maybe we could get some good out of this blog.

          3. “Totally reasonable” is not how I would describe overturning a public safety rule limiting more than three families in a private home for any purpose because some of those purposes are religious.

            Is there a pre-1990 case overturning such a straightforward, universal, and content-neutral regulation? Because I don’t demand amnesia, I note a radical departure into a new era.

            1. Why are private homes different than other buildings? What’s the rational basis for treating them differently?

              1. It’s easier to monitor compliance with conditions for re-opening when the gathering of multiple family groups is patent and public. Conditions that are present in public venues, like stores and restaurants, may also have inherently mitigating effects on the ability of the virus to spread, as well as greater ability to acquire and use monitoring equipment, air filters, and the like. A “rational basis” explanation for the distinction between in-home gatherings and out-of-home gatherings would also be deferential to the government’s evaluation of the economic and broader social impacts of restricting in-home gatherings vs. commercial activity out of the home. This is not particularly difficult to do.

                Not that “rational basis” is the problem here. That’s a total red herring. The question is the appropriate comparison to draw. Are three-family gatherings in homes for religious gatherings to be treated equally to other three-family gatherings in homes for non-religious purposes? Or must they be treated equally to all three-family (or more) gatherings, regardless of context, purpose, duration, mitigating factors, etc.?

                The Supreme Court apparently believes that the Free Exercise Clause entitles judges to rove about for any roughly similar activity, and to decide that a law is not really “generally applicable” if that similar activity is not similarly restricted. The judge need only adjust the level of abstraction to reach the desired result. And, apparently, the easiest way to anticipate how judges are likely to rule on this, and to avoid the constitutional issue, is to simply exempt religious institutions and gatherings from the public health restrictions entirely.

                This is an astonishingly bad result, and if it does not result in thousands of dead people, it will only be because the decision is coming down during the waning days of the pandemic.

                1. Buildings and people don’t exist for you to “monitor” them. People, in fact, have a privacy right not to be monitored.

                  Too bad 1A doesn’t protect the free exercise of all peaceable activities. That would definitely be better.

                  1. Buildings and people don’t exist for you to “monitor” them. People, in fact, have a privacy right not to be monitored.

                    In law school, we call this “fighting the hypothetical.” You’ve completely missed the point.

                    1. Treating houses the same as other buildings interferes with my plan to violate the fundamental rights of the people inside isn’t a rational basis to treat houses differently.

                2. Simon P
                  Presumed better ability to monitor air quality or filter means nothing unless air quality is monitored.
                  I also doubt the presumption that commercial venues have better ability to monitor. I doubt if commercial venues have a better ability or are monitoring air for Covid virons. Likely almost no commercial business monitors for much of anything with the possible exception of smoke or carbon monoxide. Private residences also routine monitor for both using fairly inexpensive off the shelf technology. Private residences also have control over the filters on their HVAC systems; I have more control over choice of filter than my local dance studio has. (In fact, my husband bought a better filter at Home Depot last summer. We talked to several businesses we frequent and unlike us and most private residences, they have no ability to switch out their filters.)

                  In any case: if filtration and monitoring was the concern, the regulations could have just included a requirement for filtration and monitoring. They could have had requirements that people open windows (which is easier to do in private homes than businesses.)

                  deferential to the government’s evaluation of the economic and broader social impacts of restricting in-home gatherings vs. commercial activity out of the home. This is not particularly difficult to do.

                  The government is still permitted get to evaluate those impacts. They just can simply deem that impacts of restricting religious gatherings are less important than those impact on commerce. The first amendment does protect religion, not social or commercial impact.

              2. Lots of things. Different and sometimes better ventilation systems.
                Often more floor space in meeting rooms.
                Easier controlled access.
                Fire safety.
                Some are relevant to control of infection some are not.

                1. Public health orders can be specific rather than just making clueless assumptions about buildings.

                  Everything in your list could have been mentioned if public health authorities had a rational basis to consider it important.

                  Imagining spaces and frowning isn’t rationality.

                  1. Ben,
                    At least sometimes, public officials are less clueless than you. They do have building records, permits, etc. while you have your imagination.
                    Of course, a public health order is not going to mention sites one by one, I’ll grant occupancy per square foot on meeting room would look more rational.
                    But realistically few houses have rooms so big that 10 people can be there at a safe social distance (that is 150 sq. meters)

                    1. Why would members of a household who live together need to be “a safe distance” from each other?

                      Almost every house has more than enough space for four groups to be separate from each other. A room the size of a small two-car garage could very easily have 4 families of four with each group 10 feet apart.

                      Pretending you know that people won’t behave safely isn’t rationality.

                      Had they actually tried to make the rule match the objective, it might have survived review. You’re arguing the side that lost, saying there’s no need to make rules that match the objective. The decision says otherwise.

          4. Listen, you feeble-minded half-wit, I doubt there is much your conspiracy-addled mind can accurately recall from prior to 1990, seeing as how you were middle-aged even then, and likely even less informed of the law than you are now.

            This whole “most favored nation” approach to the Free Exercise Clause is going to come to a head when a Muslim, or a Jehovah’s Witness, or a Sikh, or an observant Jew, brings a case seeking to extend it to their situations, and the Catholic faction on the Supreme Court wants to distinguish their hastily-written and poorly-reasoned precedent from the COVID era. There is a reason that Scalia, himself no slouch in the advancement of the Catholic cause, wrote the standard articulated in Employment Div. v. Smith, and I can only gather part of that reason must have had to do with his being smarter and more thoughtful than the Kavanaugh/Barrett/Gorsuch wing. Roberts, at least, has some sense.

            Josh’s reckless pursuit of this issue can be explained, at least, by his crass careerism and his continuing attempts to make a name for himself by pushing incoherency into our constitutional law in service of conservative causes. He’s learned from the best, in that respect. I have no idea why you follow suit, apart from your fascistic impulse to be part of the “winning team.”

            1. SimonP, my urge to give attention to this blog has been weakening. Its content has deteriorated. For time to time there are still well-reasoned bits, such as your comment above, from the second paragraph onward. I can hardly blame you much for the first paragraph, either. Just suggest that a more temperate approach fits better with the rest. Your 11:20 p.m. comment was excellent throughout. That is the kind of stuff which keeps me coming back. Please keep it up.

              1. “From time to time . . .”

            2. “This whole “most favored nation” approach to the Free Exercise Clause is going to come to a head when a Muslim, or a Jehovah’s Witness, or a Sikh, or an observant Jew, brings a case seeking to extend it to their situations,”

              Don’t overlook the Congregation Of Exalted Reason . . . our sacraments include;

              the shunning of racists (must not associate with them, lend or lease to them, fund them directly or indirectly, transact with them commercially, etc.);

              the right to abortion;

              the shunning of gay-bashers;

              fierce objection to guns in most circumstances beyond possession of a reasonable gun for self-defense in the home;

              the shunning of misogynists;

              rejection of superstition-based education and nonsense-teaching schools, including refusal to recognize degrees awarded by superstition-laced institutions;

              freedom to use, produce, and trade in most recreational drugs;

              protection of immigrants and promotion of immigration by any feasible means;

              the shunning of xenophobes;

              and avoiding participation, indirectly or directly, through any device whatsoever, in any government activity that promotes bigotry.

              We recognize the issue generated when our points of conscience collide with those of people who claim their religion requires them to be or appease bigots; to be authoritarian prudes; or to suppress science and history to flatter superstition — and we have faith that reason will identify a solution and prevail.

    2. Indoor singing can be done with masks. Surprised?

    3. “Are we really going to pretend that indoor singing isn’t dangerous next? And require those of us with common sense to ignore it? How much of a theocracy will satisfy Josh?”

      You can put — and the order lays out — restrictions on specific actions that are dangerous, like indoor singing. The difference is, you can’t say indoor singing is dangerous when you do it for religious purposes and not dangerous when you do it for concert purposes.

    4. So if people find an activity dangerous they can choose not to do it.

      Both South Dakota and Florida have been wide open and have had no major outbreaks from worship.

      There’s no basis, Constitutionally nor scientifically for these restrictions.

  5. Notice that there’s no relaxation of the restrictions AT ALL. for people who have already had Covid or been vaccinated?

    They wrote them as if there was no such thing as an immune system. That’s about as anti science as it gets.

    Really: Who is more of an ‘anti-vaccer’? Someone who won’t take a vaccine? Or, someone who pretends vaccines don’t work?

    1. The science on the vaccinations and being contagious is promising, but far from established. Until the science is in, this is what you should do.

      You also don’t like vaccine passports, IIRC. Maybe stay consistent?

      1. Why “should” anyone do anything before “the science is in”? Because you like people leading artificially poor and restricted lives?

        As vaccination becomes available to all, contagion becomes a choice. Vaccinated people already fulfilled 100% of their Covid responsibilities.

        1. Because the science is in about COVID being contagious and deadly, you mark.

          1. Yes, ‘the science is in’; Covid is contagious, and occasionally deadly, but only very, very rarely in the case of anybody who has already had it, or been vaccinated.

            That’s the whole freaking POINT of vaccination! To give you the immune response that comes from having had a disease, without having to incur the risks of actually having it.

            To then insist that they live their lives as though they were still immunologically naïve is madness. It’s public health theater, not actual public health.

          2. Not contagious or deadly to young or vaccinated people. Which will be more-or-less everyone in the US by June 1 – excluding people who decided to go unvaccinated.

            Some time in May Covid will become less dangerous than the flu.

        2. “Why “should” anyone do anything before “the science is in”?”

          It is simple.
          Because public policy should be about data-driven prudent action.
          Public officials have an obligation to use their best judgement AND present or cite the data upon which decisions are made. They have the further obligation to modify decisions at the complexion of those data changes.

          Your meme is a prescription for the situation to go to hell, because the “final word” is never in.

          1. And you want to create hell for people to live in every day of their lives, forever just in case the “final word” might contain some unwelcome surprise.

            1. Ben,
              You are hopeless but as I have now noted several times irrelevant.

      2. And I can’t demand the government remain consistent, too?

        At this point there is less scientific basis for mask wearing and social distancing, than there is for waiving restrictions on those already immune. We KNOW the immune system works against Covid. Otherwise nobody would ever get over it.

        But this policy treats people identically whether or not they’re already immune. It’s positively anti-science.

        1. Come on, Brett. You’ve had the science on masks and social distancing presented to you by better than me (Don Nico, for one).

          But also don’t tu quoque. You are inconsistent yourself, except you are angry at the government whatever it does.

          You gotta deal with your irrationality before you try and stand on science.

          1. I’ve had the sciencism on masks and social distancing presented, yes. And that’s all it is at this point.

            Immune systems actually work, actually protect you. Any guideline that treats people who are immune to Covid identically with people who are yet to be exposed cannot claim to be science based.

            You know what requiring all these precautions even after you’re immune says? It says, “We don’t ever plan to go back to normal life.”

            1. Why would bureaucrats ever want to go back to a time when bureaucrats couldn’t get away with petty bullying of everyone all the time?

            2. “sciencism on masks and social distancing ”
              It is amazing how you cling to your irrelevancies. Your corrent recognize science if you were submerged in a pool of it.

              1. That should have read, “You could not recognize science if you were submerged in it.”
                Your word scientism does not reflect the enormous efforts that is reflects in thousand of journal articles, each shedding a bit of light and gradually converging on a consistent picture of SARS-CoV-2

        2. Brett,
          First there is no point in arguing with you as your opinions are meaningless to your betters who have decision making authority.

          But to your question, as far as is established at a 5 sigma level, the so-called immune can be carriers and infect others. Until that proposition is proved false, responsible officials have an obilgation to act with more caution than you’d like.

          1. Why should anyone care who can be “carriers”? Get vaccinated if you want to avoid Covid problems. Then “carriers” are irrelevant.

            Vaccinated people have met 100% of their responsibilities in regard to Covid and your actions and attitudes towards vaccinated people are needless, petty, evil, busybody-ism. Other people are not your toys to play with.

            1. Public officials care because they are responsible to all the public including stupid people who think that covid is a hoax or who think that a vaccine is a work for the devil.

              Your opinions about the nature of prudent action is fortunately irrelevant.

              1. If it’s irrelevant it’s only because judges and justices are breaking their oaths and substituting their preferences for what laws and the constitution say.

                1. It’s irrelevnt because it is the job of judges to make such adjudications and because it is the duty of public officials to ensure the public well-being. Fortunately you have neither of those duties.

                  Moreover, your perverted opinions are based on gross falsehoods: “Vaccinated people have met 100% of their responsibilities in regard to Covid”

                  1. People are not your toys.

                    Luckily, most people won’t continue to be toyed with by assholes who don’t care about their lives.

                    Even before the vaccine, huge numbers of people were pushing back and ignoring the ridiculous rules. Look for the that number to swell to become a vast majority by mid June.

                    Good luck policing everyone with law enforcement individuals who don’t believe in your nonsense either.

      3. A 75-Year-Old Warning about Those Who Say ‘Listen to the Science’

        When people say “follow the science,” often what they’re really saying is “follow our plan.”

      4. Sarcastr0….You asked a fair question = Until the science is in, this is what you should do.

        Answer: Respect our enumerated rights guaranteed by the constitution. That means using objective, verifiable data that can be reproduced independently, and the government must show that their regulations are truly the least restrictive means to achieve their stated end.

        1. C_XY,
          Let’s look at a real case, Israel which has a very large fraction vaccinated.
          The number of active cases dropped below the active cases on NOv. 7 only on March 31.
          What was special about Nov. 7, 2020. It was the lowest number before the very large fourth surge in cases.

          The motivation for prudent action has been and remains very large given that there are still nearly 7 million active cases in the US.
          Those numbers in the US and in Israel are public “objective, verifiable data that can be reproduced independently.”

          1. And your point is….what? That cases above the 11/7/20 level justifies suppressing enumerated rights, Don Nico?

            1. My point is that there is good reason to take precautions.
              I do NOT grant your assertion that enumerated rights are denied.
              Your opinion about that irrelevant. Rlevance belongs to the courts

            2. You asked for “objective, verifiable data that can be reproduced independently”
              You just cannot stand that such data exist.

              1. Don Nico….not sure why you seem to think I am against objective, reproducible data. There is plenty of vaccine data (the original post, upthread); hell, I got an mRNA vaccine.

                Where things become problematic is where the government arbitrarily decides to suppress enumerated rights (like free exercise) in such an open-ended manner for months on end, in the ‘absence’ of such data. I think we learned some good lessons here, particularly those regarding the dangerousness of over-reaction, and the need to limit durations of ’emergencies’.

                1. Did you miss the part where Don said, “I do NOT grant your assertion that enumerated rights are denied.” Don is in effect calling you out for begging the question.

                  1. What exactly is this ‘begging the question’ you seem to be mentioning with frequency. What am I missing here….am I begging the question or entirely missing whjat you are saying?

                    Were religious free exercise rights suppressed? Yes.
                    Is the free exercise of religion an enumerated right? Do I really need to answer…

                    1. The question that needs to be answered is whether a neutral law that incidentally impacts the exercise of religion violates the Free Exercise clause. Yet, you keep saying it does as part of your argument. Hence, you are assuming your conclusion which is what “begging the question” is.

                    2. Your premise is wrong: it was not a neutral law.

                    3. Can you give an example of what you think a neutral regulation would look like?

                    4. No Josh R, I cannot. Then again, I don’t have to. The CA governor and legislature has to. To date, they seem incapable (or deliberately unwilling) and SCoTUS has properly shot down their discriminatory laws.

                2. At least you had the good sense to get vaccinated. My first cousin has not even had that much sense, yet she goes to see her unvaccinated 98 and 99 year-old parents a few times a week. She is their only disease vector.

                  1. Of course I got vaccinated, Don Nico! I had a dear and cherished family member die from covid. The only measure of comfort is that I saw to it that her daughter and son (both 65+) got the vaccine fairly early; covid will not kill them as it did their mother.

                    Staying with the suppression of religious free exercise theme. I personally was prohibited from joining a minyan to say Mourner’s Kaddish by an emergency declaration from our governor, Phailing Phil Murphy (People’s Republic of NJ). We could not daven together, we could not even bury her with a proper funeral. Now these things (praying in a minyan, funerals, weddings) may not seem like very much to some, but for us, they are determinative of our life, our identity, our autonomy. They are not merely actions, they are part and parcel of who and what we are.

                    And BTW, how many times were these emergency declarations just renewed in an open-ended fashion? Far too many.

                    1. C_XY,
                      My condolences on your loss of a family member. We also lost a close family member three weeks ago and could not be there for his last hours or for his memorial even though my wife and I are vaccinated. I grant that these are terrible personal tragedies and I am not belittling the loss that you and your family may feel.
                      But it is the job of public officials to weigh these considerations against their (assisted) assessment of the common good.

                      I also cannot disagree with your final statement “how many times were these emergency declarations just renewed in an open-ended fashion? Far too many.”

                      Yet I don’t accept that these hardship represent the abrogation of enumerated rights. And I do not think that the decisions are made with bad will as some here write.

                      We will have to agree to disagree

                    2. Baruch Dayan Ha’Emet (for your lost family member), Don Nico. Truly, death is a bitter sting. May you find comfort from Heaven.

                      I am glad we can ‘talk’ and disagree. We need more of that (just talking and listening). I understand your point about public officials, their assessments, and the balancing they do….and am sympathetic to point. After all, politicians have to be seen ‘doing something’, lest their constituencies toss them out. I get it.

      5. I think your response misses the point. Assuming vaccinations prevent contagion, it is still not a workable regulatory regime to have it enforced on a case-by-case basis. Once most people are vaccinated, that may be fine. But at this stage, there’s no way to manage it.

  6. Hail Satan!

    1. You’re free to gather, devil worshippers!

      1. When the Orange Messiah is dethroned and man sets foot on the Red Planet then the Horned One will reign for a millennium and the age of man will end!! !eman sih si nataS

    2. “Satan is my motor, hear my motor purr…”

      1. “Thou shalt not suffer a witch to live….”

        1. But can you legally abort a fetal witch if the reason for the abortion is that the fetus is a witch?

  7. Am I the only one who noticed: “Performers singing, chanting, playing a wind instrument, or engaging in similar activities indoors must wear face coverings at all times.”

    Anyone who thinks you can play a wind instrument — especially the kinds that use reed mouthpieces — with a mask on, hasn’t tried it.

    1. “playing a wind instrument” wearing a mask
      That would be mighty, mighty difficult

      1. Actually, you can get anti-Covid masks specially adapted to permit use of wind instruments. Which is one of the reasons I didn’t go off on THAT part of the order.

        1. So what, at least some of the aerosols travel through the instrument and are emitted at the bell.

    2. They make a wide variety of masks for band members that have been in active use for months. Generally they have some kind of flap that can be moved aside enough to insert the mouthpiece. Here’s some examples.

      1. My question is whether the exiting air is filtered through a HEPA filter. Otherwise one just has built and nice aerosol lauch vehicle.

      2. For those actually interested in science have a look at
        “Aerosol generation from different wind instruments”
        J Aerosol Sci. 2021 Jan; 151: 105669.

        Published online 2020 Sep 16. doi:10.1016/j.jaerosci.2020.105669

  8. Newsom trying to bust down that tall wall of separation of church and state.


  9. In fairness, only last year there was a 5-4 majority the other way and California’s restrictions got upheld. Both California and the 9th Circuit have some basis for being confused by the Supreme Court’s change of direction.

    And this is so regardless of which way the direction should be.

    I think the tendency of some of the Justices to treat the parties below as recalicitrant miscreants is misplaced and does not reflect well on the Court. And even though I generally agree with new direction, I think the Court should have waited for a regularly argued case to change direction, rather than doing so on the shadow docket. And it should especially not have rushed to do so a few hours after the briefs were filed, communicating that it wasn’t even going to bother to read them.

  10. As I noted above, this SCOTUS ruling will not survive the next novel pandemic emergency, if that one proves notably more threatening than Covid-19. Federal and state governments will simply ignore the Court, if that is what it takes to save millions of lives. It is what governments should do, and it is what the people will demand.

    Problem is, this decision will make coping during that inevitable crisis harder, more fraught, and less efficient. Folks foolish enough to oppose public health policy on principle will fight it ferociously, no matter what is at stake. Folks of that sort will draw perverse encouragement and determination from this Court’s ill-considered decision.

    That is a lesson Covid-19 has taught. Its value as a gift from tribulation should not be ignored or discounted.

    Because of that, what needs to happen now is a clear forward-looking draft of a uniform national policy to manage severe pandemics. It should be a policy to be activated and enforced entirely by the federal government, using only federal resources, and with an explicit provision that Supreme Court review is off limits.* Debate it and pass it into law.

    Do the debate carefully, and demand appropriate limits on any extraordinary power contemplated—taking care to define those limits in relation to legitimate constitutional ends sought and achieved. Make especially explicit any abridgments of individual rights which emergency conditions may justify, and define conditions under which those rights must be restored.

    Let the outcome of that debate govern practices and expectations when the next emergency arrives. Let the howling begin prospectively, before lives are actually at stake.

    No nation can afford to put the lives of all its citizens in serious jeopardy, simply to satisfy demands from religious zealots, many of whom can be counted upon to prefer on the basis of religious conviction the deadliest outcome imaginable.

    *Don’t object without reviewing the Constitutional language which empowers congress to put some topics beyond the Court’s review.

    1. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

      Was a state not a party here? Would a state not be a party in every single case where somebody is challenging a state law?

      1. No. The 11th Amendment prohibits individuals from suing states. So the state can never be a party in a civil rights case. The individual sues some individually named official instead. In this case the official is Governor Newsome, who is the party on the other side. Nor the state.

        You may think the doctrine that permits suing a state official rather than the state itself is nothing more than a legal fiction. But it has been the law since Ex Parte Young was decided in 1908.

        1. “The 11th Amendment prohibits individuals from suing states”, no, the Supreme Court said “Well when they passed the 11th Amendment, what they REALLY meant was not what it said, but this other thing.”

        2. The 11th amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”

          So, Nevadans or Canadians may be out of luck in suing the state of California, but Californians are not similarly limited.

        3. Oh, and Ex Parte Young had to do with a State being sued by citizens of a different state, which is exactly what the 11th amendment prohibits.

          Yes, I’m aware that current Supreme court precedent directly contradicts the actual language of the 11th amendment. The Supreme court is wrong, it happens fairly often.

          1. Brett Yale may be looking for a new Con Law professor. You’d better apply.

      2. Brett, I was talking about future policy, not California today.

        The very sentence which gave rise to your objection said, “It should be a policy to be activated and enforced entirely by the federal government, using only federal resources . . .”

        1. It really sounds like you’re blowing off the Bill of Rights, which ALREADY provides “appropriate limits on any extraordinary power contemplated”.

          I’m not cool with proceeding as though the Bill of Rights didn’t already apply to ’emergency’ measures. The Constitution has only one, solitary ’emergency power’: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

          And that’s it. Otherwise, the whole damned thing is 100% operative at all times and places, without ’emergency’ exceptions.

          1. Brett, you are kind of a stubborn ideologue, and a great illustration of the wisdom of Ben Franklin, when he deplored overuse of claims of rights to shut down policy debates. Your problem here is either lack of imagination—you don’t get how bad a real pandemic emergency could be—or you really are willing to turn the Constitution into a suicide pact.

            I am not “blowing off the Bill of Rights.” I am not conspiring to weaken it. I am not suggesting anything except the fairly obvious proposition that even the Bill of Rights has to accept the Universe, just as it is.

            Think about that for moment, and see if you can comprehend the advantage of conditioning a Bill of Rights on temporary needful suspensions at long intervals. Compared to having to draft a much narrower charter to include only rights so undisruptive of government they never need suspension, you can have far more more rights, almost all the time.

            Take a look at my reply to 3ducerist, below. I posit a situation which I don’t think your ideologically rigid response encompasses. It is a situation like others human civilizations have encountered repeatedly. It is not implausible. I challenge you to accept the hypothetical as I present it, and explain what you think ought to happen.

            How many millions of otherwise avoidable deaths must the nation endure to guard against temporary suspension of, for instance, some fraction of religious liberty? No dodging around, please. No trying to adjust the hypothetical, No denying the premise. Just answer that question.

            1. “or you really are willing to turn the Constitution into a suicide pact.”

              I don’t think it IS a suicide pact, by which I mean, I don’t think it would be suicidal to consistently obey it.

              Take the current case. First, we’re no longer in anything that could sensibly be called an “emergency”, the pandemic has been going on a year now, there’s nothing ’emergent” about it, and it has subsided to levels that qualify and “endemic”, not “pandemic”.

              Second, we’re talking about emergency measures for which there is not a lot of evidence of efficacy. Countries that just refused to shut down did no worse in the end. Look at the US and Sweden. We locked down, Sweden didn’t. Does it look to you like locking down did much? Our cumulative death toll per million is actually higher than theirs!

              Your hypothetical deadly common cold is nothing at all like Covid. If we’re going to permit civil liberties violations for Covid, what would we be doing in the case of your deadly common cold? Martial law, and a dictatorship? I suppose if bodies were piling up in windrows, the government would just say, “screw it!”, and do whatever, and never mind the law or Constitution.

              But if ever a disease were going to prompt that, Covid sure as hell isn’t it. It’s about the worst possible example of a disease to use for justifying extra-constitutional measures.

              1. “Covid sure as hell isn’t it.”

                576,000 dead Americans is not enough for Brett.
                Fortunately his opinion is irrelevant to what decisions get made

              2. We locked down, Sweden didn’t.

                The U.S. didn’t lock down.

          2. On the Habeas language. Really? Seems to me more like that one privilege is the only one the Constitution has singled out for special protection against infringement by emergency powers. Why would that language even be in there, if there were not a presumption that emergency powers would at times suspend other provisions?

            1. You’ve got that totally and absolutely upside down: That’s the one solitary place the Constitution actually explicitly permits a right to be suspended. Nothing else in the Constitution so much as suggests they can be overridden.

              It’s like saying, “That door is specially protected against emergency entry, it has a door knob and lock. The wall, on the other hand, has no such provisions, so we can take a sledge hammer and go through it any time we feel like it!”

              1. “permits a right to be suspended”
                And no rights have been suspended.
                Your coreligionists are welcome to have their communal zoom services.

    2. I’m no expert on the Constitution, but so far have only read or heard that the language empowering congress to put some topics beyond the court’s review involve topics of running the legislative branch and their enumerated powers. None of the discussions I’ve seen or read involve any topic which addresses rights of citizens. In fact, numerous cases have involved an attempt by congress to restrict the rights of citizens which tells me specifically that this specific topic is specifically within the court’s review.

      That being said, if you have some specific location you’re alluding to that you would like reviewed I’m all ears.

      1. Well 3ducerist, the language is this:

        In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

        I get that the present Court might try to weigh in anyway, with some argument about rights trumping the Constitution. It would be a terrible posture for the Court, which is explicitly directed otherwise by the sovereign. It would be divisive. It could cost tens of millions of lives. If there really were a severe pandemic under way, deciding to rule out proper counter-measures would utterly undermine the legitimacy of the Court. A vast majority of Americans—if they thought their lives at stake and inadequately protected—would revile a Court which denied them an available measure of safety.

        But none of that is proof this Court would not try it. I assume in such a case, Congress and the President would likely ignore the Court. They might decide later that the Court had so damaged itself that its members needed to be impeached and replaced, just to give the nation back a Court whose members were not hated by almost all the survivors—who would plausibly blame the Court for the deaths of family members in almost every family.

        I suggest that when folks try to think about this issue, it would be helpful to try to ignore Covid-19, and all the politicized crap which has accumulated around it. Covid-19 has been a peculiarly selective pandemic, leaving most of the population alone, but a notable menace—if less than a sure death sentence—to the elderly. That is a bad example to represent the general case of a deadly pandemic.

        Think instead of of something much worse. Something goes wrong with the common cold, for instance, and now it kills most people it infects. Anti-viral counter-measures are less promising—it’s still the common cold—a shape shifter, but with a lethal punch. During the initial stages of a contagion which spreads way faster than Covid, only quarantines, business lockdowns, school closures, masking, and other non-medicinal measures are available.

        Do you really think there is a good constitutional argument for a right to do anything which avoidably spreads something like that around? I don’t. I think emergency measures are about recognizing situations where rights get suspended because they have to be, and that would be one of those situations.

    3. “this SCOTUS ruling will not survive the next novel pandemic emergency, if that one proves notably more threatening than Covid-19.”

      Probably true. And Covid-19 is like a bad cold or flu, hardly worse than the 68-69 pandemic when Woodstock occurred and you didn’t see the march of global totalitarianism as a response. So it won’t take much.

      1. Furthermore, generally none of the government’s draconian actions actually save any lives or help anything. Most of it lacks even the patina of scientific justification, or any logical coherence at all. Such as shutting down small retailers and businesses and workplaces while herding everyone into the big box groceries and retailers. To actually quarantine and prevent spread they would need to go further and actually weld people into steel-frame apartment-prisons. And eventually they might do just that, to prevent imaginary calamity.

        A brief survey of history confirms that unchecked authoritarianism and tyranny, expanding its borders through imperialism and increasing centralization, using whatever great pretext available, is a recurrent theme.

        1. “Furthermore, generally none of the government’s draconian actions actually save any lives or help anything.”

          Do you care to provide scientific evidence for your irrelevant opinion?
          Remember that 3/4 of those dead perished under the reign of the Orange Clown

      2. And Covid-19 is like a bad cold or flu, hardly worse than the 68-69 pandemic

        You can tell, because many more people have died despite significant NPI measures undertaken for covid.

  11. This mooting trick that California and other states have been using seems to provide a back-door for unchecked unconstitutional behavior.

    1. All segments of society play legal tricks. It may be annoying but it’s the truth

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