Religion and the Law

Sixth Circuit Upholds School Mask Mandate Against Free Exercise Clause Challenge

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From Resurrection School v. Hertel, decided yesterday by Judge Karen Nelson Moore joined by Judge Bernice Donald:

[Plaintiffs assert] that MDHHS's mask requirement for students in grades K–5 violates Resurrection School's sincerely held religious beliefs because it interferes with the school's religiously oriented disciplinary policies and prevents younger students from partaking fully in a Catholic education. The declarations submitted by the Plaintiff parents assert that their children find masks uncomfortable and distracting from their religious education, and that the mask requirement conflicts with "the right [as a parent] to choose a school for them which corresponds to their own convictions." {In their initial Complaint, Plaintiffs also argued that "[i]n accordance with the teachings of the Catholic faith, Resurrection School believes that every human has dignity and is made in God's image and likeness. Unfortunately, a mask shields our humanity. And because God created us in His image, we are masking that image."}

Plaintiffs argue that MDHHS's Orders violate their sincerely held religious beliefs because they require students in grades K–5 at religious schools to wear a face covering. We do not question the sincerity of Plaintiffs' beliefs that wearing a mask in the classroom violates their Catholic faith. {Defendants Vail and Siemon contend in their brief that "Appellants do not cite to any sources to support their position that the Catholic faith or Catholic theology is in any way opposed to the use of prophylactic masks during a global pandemic," or "provide any examples of ways in which masks interfere with or burden their religious beliefs." Plaintiffs' objections to masks admittedly are confusing and at times, digress into secular, rather than religious concerns. Nevertheless, a plaintiff's "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."} …

In the present case, the district court … correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability….

In Tandon v. Newsom, the Supreme Court concluded that the plaintiffs were likely to succeed on the merits of their free-exercise challenge to a California order limiting all gatherings in homes, religious and non-religious, to three households. "[G]overnment regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." In concluding that the restriction was not neutral and of general applicability, the Court noted that "California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time."

Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K–5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. {Perhaps the only other comparable secular activity, childcare organizations, were subject to the same requirement that children ages five years and older wear a mask.} Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Even under this broader conception of comparable secular activity, the MDHHS orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. The exceptions to the MDHHS Orders were narrow and discrete.

First, many of the exceptions, such as medical intolerance to mask use, eating and drinking, swimming, or receiving a medical treatment during which a mask cannot be worn, are "inherently incompatible with" wearing a mask. Contact sports where participants cannot safely remain masked must adhere to a testing protocol. Here, Plaintiffs seek to exempt children in grades K–5 at religious schools from having to wear a mask during an activity in which wearing a mask is possible, albeit undesirable for Plaintiffs.

Second, almost all exceptions to the MDHHS Orders—aside from children younger than five years old and those medically unable to wear a mask—are short in duration and lower risk (medical and personal care services requiring removal of a mask; voting). Some of the exceptions have a stringent social distancing requirement (public speaking with twelve feet of distance) or are outdoors where the risk of COVID-19 transmission is reduced (outdoor, physically distanced exercise).

Third, The MDHHS Orders also exempt activities that are necessary to fulfill "equally important obligations to its citizens' health and safety" (firefighters, police officers, and emergency medical personnel "actively engaged in a public safety role … where wearing a face mask would seriously interfere in the performance of their public safety responsibilities," By contrast, as Defendants aptly describe it, "plaintiffs' activity comprises all-day, indoor mixing of the same groups of people, five days a week for months on end." Thus, unlike in … Monclova Christian Academy v. Toledo-Lucas County Health Department (6th Cir. 2020), where the challenged order exempted an array of secular activities that the panel viewed as posing a greater risk than in-person instruction, the exceptions to the MDHHS Orders are narrow and largely limited to activities of lesser risk than in-person instruction.

Finally, all exceptions to the MDHHS Orders were available to Plaintiffs if they had chosen to engage in that activity. Plaintiffs were able to remove their face coverings to eat lunch at school, swim during physical education class, participate in Mass at school, engage in distanced public speaking on a religious topic, or exercise outdoors while physically distanced during recess. Under the MDHHS orders, persons medically unable to wear a face covering, such as Smith's son, could go without a face covering at school. Because the MDHHS Orders are not so riddled with exceptions for comparable secular activities as to render the mask requirement not neutral and of general applicability, we review the MDHHS Orders for whether the state has a rational basis….

Plaintiffs cite the Supreme Court's recent decision in Our Lady of Guadalupe School v. Morrissey-Berru (2020), for the principle that "[t]he First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" … In Our Lady of Guadalupe School, the Supreme Court concluded that a form of immunity from employment-discrimination claims brought by certain employees, the ministerial exception, extended to two teachers who taught religion and participated in religious activities. The Supreme Court, however, emphasized that religious institutions' ability to decide "matters of church government" and "faith and doctrine," "does not mean that religious institutions enjoy a general immunity from secular laws." MDHHS Orders requiring all persons ages five and older to wear a mask in public—including in the classroom—is not comparable to infringing on the school's authority to select their ministers and religious educators….

Plaintiffs also argue that we should apply strict scrutiny to MDHHS's Orders because the orders violate both their free-exercise rights and their rights as parents to direct the education of their children. Pls.' Br. at 32. This hybrid-rights theory stems from dicta in Employment Division v. Smith (1990) explaining that a plaintiff may establish a violation of the Free Exercise Clause by showing that a neutral and generally applicable law violates "the Free Exercise Clause in conjunction with other constitutional protections."

Although some circuits have recognized hybrid-rights claims, we have consistently declined to recognize hybrid-rights claims. For instance, in Kissinger v. Board of Trustees of Ohio State University, College of Veterinary Medicine (6th Cir. 1993), we considered the merits of a veterinary student's claim that her college's policy of requiring students to dissect animals violated the Free Exercise Clause and other constitutional provisions. We declined to apply strict scrutiny to her hybrid claim, reasoning that "[w]e do not see how a state regulation would violate the Free Exercise Clause if it implicates other constitutional rights but would not violate the [F]ree Exercise Clause if it did not implicate other constitutional rights." Simply put, this outcome would be "completely illogical."

"[T]herefore, at least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated," we explained that we would "not use a stricter legal standard than that used in Smith to evaluate generally applicable, exceptionless state regulations under the Free Exercise Clause." Since then, we have consistently declined to recognize a hybrid-rights theory….

Applying rational-basis review, we hold that the MDHHS Orders are rationally related to a legitimate government interest. To satisfy rational-basis review, Defendants must show "only that the regulation bear[s] some rational relation to a legitimate state interest." Here, Defendants had a legitimate state interest in controlling the spread of COVID-19 in Michigan…. Further, Defendants cite more than ample evidence that requiring masks in the school setting minimizes the spread of COVID-19. Although Plaintiffs question the effectiveness of masks, even they admit that "masks serve a purpose when students cannot socially distance and do not object to (and, indeed, enforce) mask wearing in the hallways and common areas of the school."

We conclude that the MDHHS Orders do not violate the Free Exercise Clause because the MDHHS Orders are neutral and of general applicability and satisfy rational-basis review.

Sounds correct to me.

Judge Eugene Siler dissented, arguing that the court should have remanded to the district court to consider Tandon v. Newsom and Monclova Christian Academy v. Toledo-Lucas County Health Department (6th Cir. 2020), rather than having the panel itself consider those cases. Thanks to Howard Bashman (How Appealing) for the pointer.

 

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    1. I'll just note here that the two judge majority consists of left wing hacks who were both in the minority on the two habeas cases discussed below.

      So, given that they've already established that all their "reasoning" is "motivated", here's hoping their decision here gets tossed by SCOTUS via the shadow docket.

      1. Well, there's also the idea that Volokh said the opinion seems correct. Guess he's a left wing hack?

      2. The mask is the stigma of the Democrat douche bag, as the burqa is that of the Taliban douche bag. The burqa is effective in blocking the admiring male gaze. The mask is total quackery and totally ineffective at protecting from infection.

  1. Coming in before this thread turns into a shinola-show.

    "We do not question the sincerity of Plaintiffs' beliefs that wearing a mask in the classroom violates their Catholic faith. {Defendants Vail and Siemon contend in their brief that "Appellants do not cite to any sources to support their position that the Catholic faith or Catholic theology is in any way opposed to the use of prophylactic masks during a global pandemic," or "provide any examples of ways in which masks interfere with or burden their religious beliefs." Plaintiffs' objections to masks admittedly are confusing and at times, digress into secular, rather than religious concerns. Nevertheless, a plaintiff's "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."}"

    Uh huh. Their Catholic faith? Yeah, right.

    This, right here, is exactly why Empl. Div. v. Smith is correct (maybe Scalia's finest majority opinion), and we need to make sure we don't Constitutionalize the RFRA.

    If we begin to allow every person to be an island upon themselves, and to self-certify their own objections to generally applicable laws, we will have madness.

    If you think people won't abuse the system, I have a certificate for an "emotional support chihuahua" I'd love to sell you. Because people in America suck, and we can't have nice things.

    1. I'll bet you anything that most of the people with religious objections to masking had no objections -- religious or otherwise -- to masking before Covid. I'll bet their kids wore masks on Halloween, I'll bet they had no issue with masks if they were visiting a loved one in the ICU, and I'll bet they had no issue with masks if they were engaged in a high-pollution activity like installing drywall. It's only when the government tells them they should wear masks to help stop a deadly disease that they suddenly discover that masks are anti-God.

      I've heard of religions of convenience before, but this one takes the cake.

      1. I've seen a lot of reports of pastors/etc. of certain groups that are telling their congregants that they will help them concoct an anti-mask defense.

        It's kind of sickening. At a minimum, it tells you a lot about which religions (and people) place a premium on honesty.

          1. Ugh. I just absolutely hate people.

          2. A "Biblical defense" of fake vaccine IDs? Some people's souls are just rotted to the core. On the other hand, here is Pope Francis on getting vaccinated:

            "Being vaccinated... is an act of love," the Pope said. "And contributing to ensure the majority of people are vaccinated is an act of love. Love for oneself, love for one's family and friends, love for all people".

        1. Indeed,
          the complaint that "a mask shields our humanity. And because God created us in His image, we are masking that image."
          is complete nonsense even within orthodox Catholic beliefs

          1. As a Jew, I have no mitre in that fight. 🙂

            1. You might mask your small brain from God's sight?

          2. Since the totalitarian mask Nazis arent operating in good faith - I fully support people using every tool in the box to thwart their stupid Covid rules.

            1. My religion requires me to mute people who Godwin threads.

              Thank goodness.

          3. It's as frivolous an argument as saying that God doesn't want people to wear pants.

            1. Exactly, If God wanted us to wear pants, we would not have been born naked.

      2. I’ll bet their kids wore masks on Halloween

        Wow. Just wow.

        I’ll bet they had no issue with masks if they were visiting a loved one in the ICU

        Maybe you have some stats on how often that would have come up and under what circumstances? I've visited a lot of people in hospitals over the years, and have never seen or heard of that.

        and I’ll bet they had no issue with masks if they were engaged in a high-pollution activity like installing drywall.

        Hmmm... particles of a size the mask can physically block and thus has actual demonstrable utility, vs. a size it cannot and thus is just some weird combination of lucky rabbit foot and membership badge?

        I'm comfortable that if you were litigating this issue, you'd be able to expand on the above a good deal. So why not cut the crap here?

        1. OK, LOB, so you're unable to follow a simple argument. The question is not the practicalities of wearing a mask to protect against drywall dust, but rather, whether they would believe that God doesn't want them to wear a mask to protect against drywall dust. You can't say in one breath, "It's a sin to wear a mask to protect against Covid" and then say in the next, "But if I'm tearing out drywall I'm going to wear a mask."

          Wearing a mask is either religiously objectionable or not. No matter how often the issue actually comes up.

          1. so you’re unable to follow a simple argument

            And you're unable to understand (or, I suspect, just deliberately choose to ignore since grossly caricaturizing them is so much more fun) how religious people could quite readily and genuinely object to arbitrary mask wearing rules to the same degree they do to any other outward symbol of fealty to god-complex humans, while at the same time recognizing that they do indeed block cement dust when remodeling.

            Wearing a mask is either religiously objectionable or not.

            The first circumstance, ever, where context does not matter one iota? Give me a break.

            1. Is it possible the parents lied in this case about the religiosity of their objection? Some of the record suggests they did and I am highly skeptical of their claim. But given that it is hard to prove they did, I am with loki all the way that Smith is the proper way to guard against it.

            2. The argument I've heard from the religious objectors is that wearing a mask covers one's face, which is made in the image of God, and therefore an affront to the dignity of the Almighty. Without commenting on the ridiculousness of that argument, how would it not apply with equal force to keeping out cement dust?

              1. It's the Universal Church of You Can't Tell Me What to Do, You're Not my Dad/God ("genuinely object to arbitrary mask wearing rules to the same degree they do to any other outward symbol of fealty to god-complex humans").

                1. A church we should all belong to, if you ask me.

                  1. Brett, try doing a line by line comparison of what libertarians say with what petulant teenagers say.

                    1. What about petulant public health commissars and their myrmidons?

                    2. Libertymike, you mean people who are trying to end a pandemic so life can get back to normal, in the face of petulant children who consider any request for compliance with anything to be the greatest human rights violation since the gulags? Those public health commissars and their myrmidons?

                    3. Krychek _2

                      They have turned a pandemic into a catastrophe. Their efforts have been, by and large, counter productive.

                    4. Krychek_2

                      Mask mandating interferes with one's respiratory rights. Said rights are not subject to being infringed upon because of a state actor's declaration of "emergency" or "public health emergency."

                      Mask mandating is also profoundly absurd given that those who are not over 75 have a 99.8% chance of survival if they contract the covid.

                    5. Mask mandating interferes with one’s respiratory rights

                      I'd think you're joking but I've seen your other posts.

                    6. Where are 'respiratory rights' to be found in the Constitution?

                    7. According to Sarcastro, one does not have a right to breathe as he contends that respiratory rights are a joke.

                      Queenie, the universe of one's rights are not catalogued in the constitution, are they?

                    8. Try not advocating that government get to treat competent adults as children. They literally are neither my God nor my dad, and it's been decades since my dad had any right to order me about anyway.

                      It's long since time the governments of this country re-learned some humility about their proper reach.

                    9. Brett, it's not that simple. What you do affects other people. If you lived by yourself on an island, I wouldn't care what your personal covid choices would be. But you don't. And whether you mask or get vaccinated helps determine how much longer this pandemic is going to be around, which the rest of us also have an interest in.

                    10. No, Brett's choice to breathe unobstructed by a mask does not infringe upon your rights.

                      You have no evidence to support the proposition that any given unmasked person is infringing upon your rights.

                      You do not have a right to exist free of germs or viruses such that you can force others to act in order to allay your fears.

                    11. "Try not advocating that government get to treat competent adults as children. "

                      Competent adults should know that life is full of restraints imposed to respect/protect others.

                    12. "Brett’s choice to breathe unobstructed by a mask does not infringe upon your rights."

                      When there is a contagious respiratory pandemic it does.

                      "You have no evidence to support the proposition that any given unmasked person is infringing upon your rights. "

                      There's plenty of reason to think masking lowers spread.

                      "You do not have a right to exist free of germs or viruses such that you can force others to act in order to allay your fears."

                      This absurd, it would mean that no restraints could be placed on anyone even during bubonic plague levels of danger.

                    13. "Competent adults should know that life is full of restraints imposed to respect/protect others."

                      So, your test of competency is whether people fall into line with the orders; Either they do, and the order is redundant, or they don't, and it is appropriate.

                      No, again, government, at all levels, needs to relearn the concept of "none of my business".

                  2. You can't parody many on the Right today.

                    1. If you've ever dealt with a two-year old at his tantrum-worse, you experienced the core emotional maturity of today's "conservatives". Most children learn they have to share the world with other people after that; its what's called growing-up.

                      But somehow the Right has missed the boat on that process. If you want to see this at its stomach-churning worse, go over to the rest of Reason's site and read the comments there. It's all adolescent rage, adolescent whining, and adolescents tantrum snits.

                      Oh - and a constant degrading of the word Freedom. It's seem the life mission of today's Right is to make that word as cheap & meaningless as possible.

                    2. Yup, if a bunch of tantrum-throwing toddlers were well organized enough to form a political movement, libertarianism is what they'd come up with.

                    3. Indeed, Reason's core site comments is dispiriting to say the least.

                    4. Personally, I'll take the two year old who holds his breath if he doesn't get to do as he likes, over the 10 year old who thinks he's entitle to punch out anybody else who doesn't do as he likes. At least the 2 year old is no threat to you.

                      Most people by the time they grow up develop concepts like, "Other people's stuff", "other people's choices". Authoritarians never seem to, they think they're entitled to spend other people's money, and tell other people what to do.

                    5. Brett, is the ten year old trying to stop a pandemic?

                      I'd be far more sympathetic to your liberty position if it didn't leave me with the nagging suspicion that the real objection is being told what to do, rather than whether the thing you are told to do is in fact something you should be doing. Harry Truman once said that most of his time was spent trying to convince people to do what, if they had any sense, they'd be doing anyway.

              2. The argument I’ve heard from the religious objectors

                Well, at least we've gone from "there can't possibly be any principled religious objection" to "well, the only one I'VE heard in my super-extensive circle of the religious...." Progress.

                1. Pedant's Progress...

                  1. Great book, I'm going to have to find a new copy.

                    1. Book? It's actually a novel.

                    2. I can see you've already conquered the Slough of Didacticism. +1

                2. “Made in God’s image” isn’t a principled argument. If it were principled the person making the argument would be a nudist.

                  There is nothing in Catholic teaching against wearing masks for any purpose and nothing about wearing a mask that inhibits someone’s practice of Catholicism.

                3. Where did I say there can't possibly be any principled religious objection? Please point out where I said that.

                  1. Where did I say there can’t possibly be any principled religious objection? Please point out where I said that.

                    "I’ve heard of religions of convenience before, but this one takes the cake."

                    Distinguish. I'll wait.

                    1. Uh, that doesn't imply the excerpt.

                    2. LOB, I misjudged you. I previously thought you couldn't follow an argument; I now see you can't even read.

                      That there are people who are religious for reasons of convenience -- and I think that includes a lot of anti-mask religionists -- does not mean that *everybody* who is religious, or *everybody* who has a religious objection to wearing masks, is a hypocrite.

                      But the phenomenon does exist. A lot of the people, maybe even a majority, who claim religious exemptions for mask wearing are in fact doing so out of convenience rather than any internally consistent religious belief. However, I never said that was all of them. So maybe you should sweep up all that straw you tossed before it catches fire.

                    3. Yeah, I figured the wiggling and squirming would be epic. You replied to Loki's categorical statement with one of your own, and maintained it all through the thread. It seems a bit late to be turning tail -- throwing insults for attempted cover -- when you realize you've painted yourself into a rather embarrassing corner. But you do you.

                    4. Talk about wiggling! Stating that 'religions of convenience' exist, or even that they are common, doesn't imply all claims are so or necessarily so. Lol.

                    5. I mean, double LOL, he even literally said *and then you cited* *THIS ONE takes the cake.*

                      Categorical statement, lol.

                    6. Well, if some people here don't have the guts to say it, then I will: I don't believe there are any principled religious objections to mask wearing. I am not saying that there could not be a hypothetical religion somewhere in the multiverse that has tenets which could reasonably be interpreted as forbidding the waring of masks. I am saying that such a religion does not actually exist in this actual universe. Or to put it another way: every single person claiming a religious objection to mask wearing is lying.


                      (I will mildly caveat this: there may be a genuine religious objection to wearing a mask at some particular moment; there may be some specific religious ritual or ceremony that is thwarted by mask wearing. But as a general proposition, no.)

              3. L_Mike,
                You don't get to make the rules for the state and you don't get to be the arbiter of health policy. There is an arguable case that masking lowers contagion. That is what the cognizant official have order. Live with it.

        2. "particles of a size the mask can physically block and thus has actual demonstrable utility, vs. a size it cannot"

          FWIW, if the objection is to mask mandates that allow low efficacy masks, I'll just put out there that N95 and N100 masks are now readily available. I just bought a box of 3M brand N95's for an upcoming drywall project (yuck!) for a buck apiece.

          If the objection is that N95 masks aren't effective against covid, you don't understand how masks work, and our health care type neighbors who have been working in covid wards for a year plus wearing N95's without getting sick would like a word.

      3. Well, when you show me a place where the government was forcing them to wear masks all day at school that significantly increase their CO2 levels (to far higher than OSHA safety levels), I'll show you where they previously mentioned their religious objections to being suffocated.

        That work for you?

        1. No. Once again: one cannot claim that masks are ineffective because they're too big to block tiny covid particles, and then claim that masks are bad because they block the much much much smaller oxygen/CO₂ molecules.

          1. Now you're the one who doesn't understand how masks work. Acquaint yourself with the concept of mechanical dead space.

          2. Not my area of expertise but FWIW, the first hit I got searching for 'n95 mask co2' does show CO2 increases well above the 8 hour NIOSH limit.

            Again, not my area of expertise, but I'm not too sure that's as bad as it sounds. OSHA, having hopefully looked at the tradeoffs still requires lotsa people to wear masks all day long. And I don't think an argument of 'but what about people in ill health' is conclusive. My mother had severe emphysema and her docs universally advised her to wear masks whenever out of the house to avoid the danger of catching a respiratory illness (this was many years before covid). The oncologist had the same advice when my wife was going through chemo. Now, it may be that pulmonologists have been wrong all along when deciding the tradeoff between infection reduction and CO2 levels, but it seems odd this was uncontroversial before all things covid became political footballs.

    2. That's pretty much what I was thinking too, except less eloquently. If you have a religious objection to masks, you're just being silly. At some point the courts should be allowed to say that you're not actually being sincere about your alleged religious beliefs.

      (Not to mention that I could probably dig up a quote from the pope in favour of masks. Not that that would settle the issue, because there are lots of issues where American catholics are more catholic than the pope. Because apparently that is a thing now.)

      1. It's kind of funny, because we used to use the term "cafeteria catholic" in the U.S. because Americans would pick and choose what doctrines to follow because we were more liberal than the Vatican; now, Americans pick and choose what doctrines to follow because they think the Pope is a libtard.

      2. No more silly than if you're insisting that K-5 students have any sort of medical need to wear masks to protect against Covid.

        1. Why do you hate children so much?

          1. Nice parody!

        2. 1. Whether you think it is silly doesn't mean that anyone (especially these plaintiffs) have a RELIGIOUS objection to it.

          2. Further, the continued and appalling use by some people of religious objections for things that have absolutely nothing to do with religion is something no one should approve of.

          3. Finally, this is about creating additional barriers with regard to the transmission of COVID-19; given that the under-12 population can most certainly acquire and spread the disease, and given that they will be in proximity with each other and staff, usually indoors, at school, there is certainly a basis for requesting masking simply to slow the spread. It's hardly a panacea, or an end-all, be-all, and masking is more about transmission than "protection against," but there is certainly a basis for this request.

          You're free to disagree, but I have learned that it's pointless discussing this with certain people.

          1. A) I am in agreement that claiming a religious exemption is ridiculus in this case - (possibly the argument that "god" wants me to get sick or some variation). Certainly dont want to RFxx to be exemption to everything.

            B) There is a huge over reliance / belief in what the mask accomplishes. Its true that the mask can slow the spread for a period of time. However, the masks are only speed bumps, Masks can slow the saturation of the air with viral particles but masks cant stop the saturation of the air. There is far too much leakage, Once the time in the classroom has exceeded 30-40 minutes, 80+% of the particles that have been exhaled, have escaped past the mask.

            1. I think that two things can be true-
              Some people falsely believe that "masks" (meaning non-medical grade cloth masks) are incredibly effective at preventing infection. That's wrong.

              Some people falsely believe that masks are completely ineffectual, or, worse, harmful.

              It's entirely possible that the prudent use of masks as part of an overall strategy can help reduce transmission and infection rates; viewing them as one of several measures that can be taken (including social distancing and having groups meet outdoors whenever possible, along with keeping indoor meetings to short and specified periods of time) is, IMO, the best practice.

              It's frustrating because the perfect should not be the enemy of the good. Effective masking is not a panacea, but it can be helpful.

              1. I agree that masks can reduce the spread, though significantly less than the "pro-maskers". At the same time, The attitude that "my freedom" should not require a mask is idiotic.

                You make a valid point with keeping meetings short, which helps tremendously. However in a school setting, the pro maskers are asking the masks to do something the masks cant do - which is to keep the viral particles trapped inside the mask for 6-7 hours. There is no study out there which supports the concept that a cloth mask has the ability to contain the viral particles for periods lasting longer than 30-45 minutes.

                1. So here's where we would probably depart in our views.

                  Have you see K-5 kids? Some of them ... well, they'll be fine. Others? Well, they will be pulling at their masks. They won't be terribly effective.

                  I would posit that an enforceable policy requiring the masks- for teachers, staff, and children, given the transmissibility of the newer variants and in conjunction with other requirements (such as social distancing, contact tracing + quarantining, frequent outdoor breaks, etc.) would be the best possible solution.

                  People need to stop viewing these steps as a single, "Do this and everything is good," and instead view masks as one of a number of public health measure that should be taken to reduce the spread of a contagion; each in isolation isn't perfect, and some are very good (vaccinations) and others are more marginal (masking, social distancing indoors), but the combination of them is what is most effective.

                  1. In the grand scheme of reality - pandemic reality - attempts to suppress or eradicate the virus at the point are futile. The virus is too deeply embedded into the general population to have any success at suppress the virus.

                    1. The goal is simply not obtainable at this point.

                    2. Perhaps you can forgive those of us who think there's no reason your conclusions on this are worth a hill of beans (not that mine would be, but I'm for deferring to those for whom there are good reasons).

                    3. Queen Amalthea
                      August.24.2021 at 2:26 pm
                      Flag Comment Mute User
                      "Perhaps you can forgive those of us who think there’s no reason your conclusions on this are worth a hill of beans (not that mine would be, but I’m for deferring to those for whom there are good reasons)."

                      My conclusions are based on a rational assessment of reality

                    4. Even if you thought absolute suppression wasn't possible, which I don't agree with, but for the sake of argument ...

                      It is still the case that suppression and public health measures bends the curve and allows effective treatment. Moreover, it ensure that resources aren't overwhelmed so that services can continue to be deployed for non-COVID tasks.

                      When you are in an area that has been overwhelmed and you truly understand everything that can be cancelled in the name of non-essential services, you might be a little less pleased by the prospect of, "Let 'em all die or get natural immunity to this strain, and let god sort 'em out."

                    5. Even if you thought absolute suppression wasn’t possible, which I don’t agree with

                      Thanks for the final confirmation (to the extent one was needed) that you're a reality-starved fruitcake. Island nations that effectively force everyone to stay in their homes at gunpoint can't even achieve "absolute suppression." Can't wait to hear YOUR grand plan....

                    6. "My conclusions are based on a rational assessment of reality"

                      You can be rational about a topic you're not educated, experienced and accomplished enough to intelligently opine on but of course people would be silly to take it as correct relative to the opining of those who have those characteristics.

                    7. "Thanks for the final confirmation (to the extent one was needed) that you’re a reality-starved fruitcake."

                      1. Given that we have just started rolling out mRNA vaccines (among other vaccines) and are still working toward a full understanding of how to best control the disease, I think it would be hubris to say that full suppression WASN'T POSSIBLE, which was the extent of my statement.

                      2. Given your response, I am gladdened by the mute user function.

                    8. Given that we have just started rolling out mRNA vaccines (among other vaccines) and are still working toward a full understanding of how to best control the disease

                      No, King Canute, no we're not. There's no way to "control" this one -- in the eliminatory sense -- any more than any of the other respiratory viruses that constantly sweep the globe. Other than just stopping breathing and beating it to the punch -- do as you will, but I'll pass.

                      Given your response, I am gladdened by the mute user function.

                      Aw, the premier bully of the board got his feewings hurt and is never gonna talk to me again. Classic.

                    9. Eradiacate? Not happening
                      Suppress? Not clear what that means
                      Render harmless? That is where we have a chance

                    10. No, King Canute, no we’re not. There’s no way to “control” this one — in the eliminatory sense — any more than any of the other respiratory viruses that constantly sweep the globe.

                      Remember those smallpox epidemics?

                      No, you don't. Because we have controlled them. In the eliminatory sense.

              2. Again and again the evidence does not support masks..comparing states, countries, and local areas and even schools do not support masks working better than no masks..

                You all need to go to Salon or Slate or the Atlantic...your in the wrong place

            2. Tom,
              You make a good point in your post:
              "Its true that the mask can slow the spread for a period of time. However, the masks are only speed bumps."
              Masking is a poor mitigation solution for rooms with poor circulation; the virus can live too long in the open.
              Now we are getting into a message too complex for bureaucrats

        3. Don't whattabout Brett.

          Do you have a defense for their...suspicious claim?

          Not a place the judiciary should go, yes. But this is the Internet, and that does look hinky as hell.

          1. I wouldn't defend their claim. I'm implicitly calling it silly.

            I'd be inclined to say "A pox on both your houses!" were it not for one side wanting to be left the hell alone, and the other demanding compliance or else.

            Compliance with an objectively silly demand. There's no medical basis for demanding K-5 students wear masks! It's not even a close thing. The mortality and morbidity rates in that age range are a rounding error, it's like demanding they mask up to avoid getting the sniffles, or wear armor to avoid getting scratched on the playground.

            It's worse than that, because wearing a mask all day isn't without it's own health risks.

            Faced with an obnoxious and pointless demand, I'm not that upset with silly excuses for saying "No".

            1. "Faced with an obnoxious and pointless demand, I’m not that upset with silly excuses for saying “No”."

              That's the problem- you should be upset. This is, translated, what you just said:

              I, Brett, think that this (law, regulation, whatever) is silly. Therefore, I approve of people lying so that they do not have to follow it.

              We see this over and over again in modern America. We create exceptions to laws for the best of reasons - for example, working service animals allow disabled Americans to participate in more areas of life. But then people LIE because they think that some law is silly, and they don't want to follow it. "Who cares about food preparation and safety. Or people that might be allergic to animals. Or the fact that Rover likes to chomp on kids' faces. ITS MUH RIGHT TO HAVE MY PETZ WITH ME AT ALL TIMEZ!"

              Over, and over, and over again, it's people who think they are too good, too smart for the rest of us, that it's just us sheep who follow the law and don't drink medicine intended for livestock (irony?) that somehow are in the wrong.

              I don't buy it.

              1. I don't buy that the government is entitled to arbitrarily order us about. I was born in a free country. And I think in a free country, at some point the government's orders can be so irrational and obnoxious that the only sensible response is an upraised middle finger.

                This order is on that level of arbitrary irrationality.

                1. "I don’t buy that the government is entitled to arbitrarily order us about."

                  1. The government is "us." You don't like it? Vote them out. Vote your own people in. Weirdly, this desire to pontificate as to what every other state does is kind of weird.

                  2. It's not arbitrary. You don't like it. There's a big difference. In fact, if you read the opinion (HA! I know, that was funny) you'd see that the challenged 2021 Order is part of a long sequence of events.

                  And that's really what this comes down to. I am not the ruler of us all, but neither are you, Brett. So your middle finger to the government is really a middle finger to the rest of us.

                  In which case ... right back at ya.

                  1. "1. The government is “us.” "

                    Like Hell it is.

                    1. Really, the government isn't us?

                      It's ... pod people? The people that run elections, they aren't us? The people that run in elections, they aren't us? The people that win election, they aren't us? The people that serve in local government, they aren't us? And the people that vote? They aren't us, either?

                      Wow! Okay. I knew conspiracy theories are the cool thing du jour, but I actually know who is on the City and County Commission where I live- they are friends and neighbors, people I vote for (and against). I know the local Supervisor of Elections, and I know the district school board, and I understand the incredible pressure that they deal with.

                      I wish I could just assume that they were pod people, some kind of faceless unthinking mandarins like you can, Brett. Maybe use all-caps to do it. Assume they are some kind of de-humanized and de-personalized "other" in order to make sure that I can sleep at night. But I can't.

                      Good for you though! Hard to square with reality, but I'm guessing you're not big on that anymore?

                    2. As I learned when we settled into a long-term occupation of Iraq, consent of the governed in a Republic means consent to the policymaking system, not consent to each policy.

                    3. "It’s … pod people?"

                      It's a sub-set of the people. A small subset of the people. An increasingly self-selecting and unrepresentative subset of the people.

                      For anybody who isn't an office holder, the government is, literally, not "us". It's "them".

                    4. "For anybody who isn’t an office holder, the government is, literally, not “us”. It’s “them”."

                      No, it's not. Do you volunteer to help with the elections? Do you pay attention to you local government? Attend the meetings? Participate in the many opportunities you are given?

                      Have you ran for office? Any office?

                      Are you part of the solution, or just a keyboard commando? Seriously- there isn't some magic wall dividing people. If you put 10% of the effort into getting involved locally that you do trolling libs on the internet, you'd have a much better idea of how those "pod people" work, Brett. It's not rocket science.

                  2. The government is you - not me.

                    1. Thank G_d

                2. I don’t buy that the government is entitled to arbitrarily order us about. I was born in a free country. And I think in a free country, at some point the government’s orders can be so irrational and obnoxious that the only sensible response is an upraised middle finger.

                  This order is on that level of arbitrary irrationality.

                  And the proper channel to change that is to vote out the politicians who do that.

                  Not to let everyone pick and choose which laws/requirements etc apply to them using pretextual nonsense and lies.

                  Again Brett....people like you are the fucking problem. You dont agree with the rules so you will make up any bullshit to avoid it and you think that somehow makes you principled or in the right.

                  But you aren't either of those things -- in reality you are just a selfish asshole

                3. I don’t buy that the government is entitled to arbitrarily order us about

                  OK then. You can do civil disobedience.

                  You do not lie. You do not advocate for lying. That's not dealing with an unjust law or system, that's just being a liar.

                  1. I'm not advocating for lying, and I wouldn't have told this lie myself in their places. I'm just not going to get all upset about somebody lying to try to escape an irrational dictate.

                    Which is what this is. Medical security theater, nothing more. The next step in a total moral panic.

                    1. I mean, I'm not upset about this little fight either, but I do think it's shabby to lie about your faith for partisan policymaking (vs. avoiding persecution) purposes.

                4. Brett,
                  I don't buy that the order is arbitrary. Tom pointed out above the nature of the mask as a speed bump.
                  We don't eliminate speed bumps just because some assholes don't mind breaking an axle as they drive well over the speed limit through where people are on foot.

        4. You mean besides being hospitalized and/or dying from the delta variant?

          1. Children are not being hospitalized or dying from the Delta variant. Not in any appreciable numbers. Literally almost zero.

            1. Iirc 1% of children with it are hospitalized. In a nation of millions that's a lot of kids.

              1. You have to be identified as having had Covid to be in the denumerator. Most juvenile cases of Covid are asymptomatic, so won't be tested, and won't end up in your denumerator.

                According to the CDC, covid and influenza together make up well under 1% of pediatric deaths. And basically all of those deaths involved serious co-morbidity.

                So, yeah, if you're already sick enough otherwise that Covid hits you hard enough to notice at the age of 12, maybe you stand a 1 in 100 chance of ending up in a hospital, though you're much more likely to end up in the hospital over something else.

                In fact, given the proportions here, a large portion of your juvenile covid cases were likely identified because a kid was in the hospital for something else, and routinely was given a Covid test!

                So, if the government wanted to mandate mask wearing by sufferers of juvenile diabetes, or what have you? That would make some sense. Children in general? Nope, not a bit.

            2. Perhaps so, but they are damned good disease vectors every year

              1. Sure, and we don't shut down the schools, or mandate masks, every year.

                I am very afraid that if we don't stomp this medical security theater before it gets it's roots established, we will going forward.

                1. Brett,
                  Calling it medical security theater does not make it more or less sensible. New variant are affect younger people more than the original did. We know nothing about how that trend goes. We do know that when things have an impact on their kids, parents go high order. Until 100% of schools are back we have not seen the worst of it

                  1. And common colds go through kids like wildfire. I'm not advocating stopping this because I think stopping it changes whether it's sensible, but rather because I think it already isn't sensible, independent of whether we stop it.

                    People have stopped doing any cost/benefit analysis, stopped asking how much policies help, and how this compares to downsides. If you can argue a policy helps AT ALL, with a straight face, doing it is supposed to be automatic now, and you're a monster if you argue.

                    That's classic moral panic.

                    1. The obvious benefit - is the supposed suppression of the spread of covid. The ignored cost is the suppression of the development of the human immune system for covid and all the other viral infections. That has significant long term costs. The pro maskers/pro - eradication advocates are basically advocating for the development of the human race to evolve so we can only survive in a strerile environment.

                    2. People have stopped doing any cost/benefit analysis, stopped asking how much policies help, and how this compares to downsides.

                      No, generally its that the cost/benefit analysis does not agree with yours. That's not the same as not doing one.

                    3. Actually, S_0, in all the COVID literature I have only seen one serious attempt at a bona fide cost-benefit analysis:
                      R.A. Joffe, "COVID-19: Rethinking the LockdownGroupthink," Frontiers in Public Health, February 2021 | Volume 9 | Article 625778

      3. A religious belief must be sincerely held for 1A protection. The court cannot argue on what the tenets of a religion are, but it is settled law that the beliefs must be sincere. Still not really something the court wants to be mucking about with.

    3. If you read case law pertaining to prisoner's rights, especially in the 9th Circuit, the court and the government is prohibited from determining if a prisoner's particular religious practice is consistent with the religious orthodoxy. The only requirement is if it is a sincerely held belief. That is all. Clearly, the 6th Circuit rationalized its opinion to conform with a political stance instead of following a long history of case law.

      1. Nope. Did you even read this?

        The Court explicitly said that it was not questioning the sincerity of the beliefs.

      2. "If you read case law"

        Said by someone who didn't bother even reading THIS case.

    4. I think the problem is that 'substantial burden' does no work under current jurisprudence and privileges the kinds of adherents who make no gradations.

    5. I think, in this case, I would have assumed without deciding that their claims were sincere and proceeded with the analysis from there. Unlike Professor Volokh, who basically takes the view that you always take people at their word for religious claims but agrees with Smith that those claims don’t really go very far, I take the view that Smith was wrong and claims go farther. But perhaps because of that, I also take the view that people generally have to demonstrrate that their position wasn’t simply made up ad hoc for the situation but has some basis in beliefs that pre-existed it. While courts shouldn’t be overexacting in scrutinizing people’s sincerity, they needn’t be complete pushovers either.

      I understand that this means that adherents of long-established religions with well-established and voluminous bodies of doctrine will do better than mebers of brand-new religions without this history. But I accept that any time you have an evidentiary rule, it favors people in a position to have more evidence over people who don’t. And I also accept that, for the reasons Loki13 points out, in order to have a religious freedom rule that retains some teeth, you need evidentiary standards to ensure those invoking the rule have some pre-existing, underlying sincerity and aren’t just making shit up as they go along.

      1. I also agree that under both Smith and any but a fairly extreme application of the most-favored-business interpretation, Smith applies and (of course) the rule passes rational basis.

        Even under pre-Smith jurisprudence, I think the rule would likely pass compelling interest. The same reasons why the exceptions are narrowly tailored enough to retain general applicability (in the 6th Circuit’s view) are also reasons why they are narrowly tailored enough to retain compelling interest under pre-Smith jurisprudence. And I think that under Jacobson, if you can compel people to be vaccinated, you can also compel them to wear a mask in the narrow context of an epidemic.

  2. Vaccination must be pretty useless if the virus is as lethal to vaccinated teenagers as they are acting.

    1. I think that there is a strong correlation between anti-vaxxers, anti-maskers, and the illiterate.

      "[Plaintiffs assert] that MDHHS's mask requirement for students in grades K–5"

      K-5. You know, the ones that CAN'T GET VACCINATED YET.

      /facepalm

      1. So the demographic with the piles of bodies from covid?

        1. Nice try! It's always funny when people (like you) are shown to not be paying any attention whatsoever before spouting your tired and incorrect points, and instead of acknowledging your myriad errors, you just try to change the subject.

          A fanatic is a person who, when they've lost sight of their goal, redoubles their effort.

          1. The policy makes even less sense with little kids but I guess you win on the kids teens switcheroo if it makes you that happy, congrats.

            1. Yes, it makes me happy to read the post and understand the facts before commenting about something.

              I prefer to reach my own understanding, based on facts, than to parrot some BS I was given on social media in order to establish my partisan bona fides. YMMV.

        2. No, the democraphic would would like to visit granny without a 5% chance of killing her.

          1. So you're saying vaccination doesn't work?

            1. I'm saying they don't work perfectly. No vaccine does.

              1. Is there any reason to believe practically immune masked children regularly transmit and kill fully vaccinated adults with covid in schools where a couple hick kids don't wear masks?

                1. No, but there is a reason to believe children regularly transmit the virus to other children in school, who then leave the school to visit their grannies. Unless you want to lock children in school with no adult supervision or permission to leave, it seems worthwhile to prevent children from being infected even if they're overwhelmingly likely to be asymptomatic.

              2. Martinned
                August.24.2021 at 12:43 pm
                Flag Comment Mute User
                "I’m saying they don’t work perfectly. No vaccine does."

                MArtinned - On the flip side, you want to deny to the children the most effective immunity which is natural immunity.

                1. Natural immunity comes with a bunch of risks.

                  Mask wearing does not.

                  1. Ah, S_0, but natural immunity is far more protective than masks are.
                    The risks of masks is the moral hazard of believing that they are far more protective than they are

                    1. Covid doesn't normally kill kids; children who die from covid-19 complications invariably have an underlying medical condition. Healthy children do not need masks or vaccines for covid. I know you know that, Don Nico.

                      Still, this religious objection to masks is a little hard to follow.

                    2. Don - is it better? And even if it is, I think we've decided the risks (which are not just to the child) are not worth it long ago. Sweden's herd immunity plan did not go well.

                      I don't think you're using moral hazard right, but local mask mandates seems like they wouldn't create the issue you're talking about; that's going to come from broad national guidance from the CDC

                    3. "And even if it is, I think we’ve decided the risks (which are not just to the child) are not worth it long ago."

                      And by "we", you mean you, and the guys with the army.

                    4. Sarcastr0...what is this 'we decided'. We (meaning, the people) did not decide jack-shit. We have had our rights arbitrarily restricted, and mandates placed upon us out the wazoo.....by people who were clearly not following biological or statistical science.

                      Politicians decided based on political science. This 'we decided' is a bit much.

                    5. "We (meaning, the people) did not decide jack-shit."

                      It's a republic, not a democracy. We pick representatives and they pick officials.

                    6. Brett and Commenter_XY - We elected the officials making the decisions here. No two-sides about it, and dissagreeing with something does not mean it's arbitrary.

                    7. No, Sarcastro. My disagreeing with something doesn't make it arbitrary, any more than your agreeing with it means it isn't.

                      The policy being objectively stupid by the numbers does.

                    8. C_XY,
                      There seems to be the hyperbole of death or immune. That makes zero sense and is simply a debating tactic. We actually do not know the susceptibility of kids to infection by SARS-CoV-2. Remember that be infected does not mean that the person has COVID-19. But the person can still transmit infection as can a person with "asymptomatic" COVID-19.
                      It is the black and white thinking that confounds good sense in this discussion.

                    9. S_0,
                      I think you misunderstood my use of moral hazard. It was meant to say the the risks are nil except creating a grossly inflated sense of security that precludes taking more serious measures.
                      That is the way that the term has been used in the climate debate regarding geoengineering.

                    10. Don Nico, the numbers do not lie. Children do not die from Covid, it is exceedingly rare, and invariably the child has a medical condition. Children do not need the vaccine.

                      To your other point on asymptomatic X-mission from children...there just is not a lot of hard, reliable, objective data. Is there some asymptomatic transmission? Probably - it makes logical sense that this be so. Still, not much data here.

                      That is not black and white....no data to me means no color at all.

                    11. Sarcastro, you said: Brett and Commenter_XY – We elected the officials making the decisions here. No two-sides about it, and disagreeing with something does not mean it’s arbitrary.

                      Not quite....these restrictions were done by executive order, and not passed into law by the state legislatures, by and large. That is a meaningful distinction. There are real questions as to whether governors have the authority to do what they did under their own state constitutions.

                      You quarantine the sick, not all of society, Sarcastr0. The decision to quarantine society was a decision based in political science.

                    12. Commenter - we elect our executives as well. Well aware part of their ambit is to do stuff like this.

                      You quarantine the sick, not all of society, Sarcastr0. The decision to quarantine society was a decision based in political science.

                      Or public health. Look at what you are doing here - you disagree with a decision (and the meta-decision about the authority to make said decision). But you are not calling it wrong, you are declaring it *illegitimate.*

                      The right is, increasingly, unable to deal with losing arguments.

                    13. Sarcastr0, if biological and statistical science are the means to evaluate legitimacy, then the current actions of the government vis a vis stripping away our individual rights and liberties are illegitimate, and must be opposed.

                  2. Sarcastr0
                    August.24.2021 at 1:23 pm
                    Flag Comment Mute User
                    "Natural immunity comes with a bunch of risks.
                    Mask wearing does not."

                    At that age, risks are infinitely tiny. The bigger risk is intentionally retarding the development of the their immune system which at their age is the best years for developing lifetime immunity.

                    1. Do you think maybe the best thing would be to infect as many kids as possible with COVID? That's what the risk mix you argue for would seem to indicate.

                      If not, why not?

                    2. Sarcastr0
                      August.24.2021 at 2:38 pm
                      Flag Comment Mute User
                      "Do you think maybe the best thing would be to infect as many kids as possible with COVID? That’s what the risk mix you argue for would seem to indicate.
                      If not, why not?"

                      In this case - it is likely the much better long term solution. Very low risk of illness, extremely low risk of serious illness and astronmically low risk of death. The opportunity to develop lifetime immunity at an age which is prime for developing lifelong immunity. The faster the young population develops immunity, the faster the R drops in the rest of the population. At this point in time, the vunerable have a high rate of vaccination.

                      What is your alternative - continue hiding in hopes the virus can be suppressed.

                    3. Masks and vaccines aren't 'hiding,' they're the solution to it.

                    4. Tom,
                      "it is likely the much better long term solution."
                      That idea is based on unprovable assumptions.

                      Let's face it you, don't know, I don't know and some bureaucrat does not know either.

                    5. "At that age, risks are infinitely tiny"
                      An exaggeration at best with a very narrow definition of risk

                      " bigger risk is intentionally retarding the development of the their immune system"
                      Explain how that happens with a mask.

                    6. Don Nico
                      August.24.2021 at 5:54 pm
                      Flag Comment Mute User
                      Tom,
                      “it is likely the much better long term solution.”
                      "That idea is based on unprovable assumptions."

                      Nico - my comment is based on well known medical and pandemic history
                      Another good source of pandemic history is edgar hope simpson's work.

                  3. Natural immunity comes with a bunch of risks if you're middle aged or older. At that age they're in more danger of tripping stepping out of the school bus than they are from Covid.

                    I'm seriously tired of "Do it for the children!" fear mongering about a disease that basically means nothing if you're a child.

                    1. We all know children never interact with anyone else...

                    2. And if the government had issued an order requiring 5 year olds to wear masks when visiting granny, it would be hideously intrusive, but it would at least be rationally related to a legitimate objective.

                    3. It's rationally related, kids that wear masks are less likely to transmit to other kids, many of whom are going to go see granny.

                    4. So? Let those kids wear masks when they see granny, instead of when they're with other kids.

                      I swear, you have no sense of cost/benefit analysis at all.

                    5. So are conceding that it's rational but a 'wear mask when seeing granny' policy is better?

                    6. Are you

                    7. No, I'm saying "wear a mask when seeing granny" might be rational, but "just wear a mask whenever we say so!" is just bull shit power tripping.

                    8. "just wear a mask whenever we say so!” is just bull shit power tripping"

                      The governor of Oregon is now mandating masks OUTSIDE, even if vaccinated.

                      Power tripping indeed. All the Good Germans here like Queenie will lap it up.

                    9. "fear mongering about a disease that basically means nothing if you’re a child."
                      Unless you infect your mom and she dies or is long term incapacitated. We do know that Delta is has increased severity for younger adults that the original wild strain.

                    10. "No, I’m saying “wear a mask when seeing granny” might be rational, but “just wear a mask whenever we say so!” is just bull shit power tripping."

                      How is the latter not rational? Which is false?
                      1. Masks slow transmission.
                      2. Kids interact with vulnerable people.

                      If 2 is true and 1 is true then kids wearing masks in school means they will be less likely to transmit to other kids who are going to interact with vulnerable people.

                      You're doing a common mistake: confusing what's 'rational' with what might be 'optimal' or 'more efficient.'

                    11. "Good Germans here like Queenie"

                      Every accusation is a confession with people like Bob.

            2. To be clear I'm not against vaccination but its funny how it simultaneously works flawlessly and doesn't help at all depending on what what would allow bureaucrats and magistrates to flex the most power over little people.

              1. I haven't heard anyone say it works flawlessly. No vaccine is perfect. But even if it reduces infections by only 50% (a number I just pulled out of the air for the sake of argument) that would leave us 50% better off than we were before.

                And one thing that's worrisome is that the large number of unvaccinated people gives the virus more hosts, which in turn gives it the opportunity to develop resistance and become more virulent. This is going to get worse before it gets better.

                1. In that case we should just end in person state schooling permanently. Let everyone just homeschool or do zoom if they like their ghetto public or private school so much. If these bureaucrats think there is so much risk why are we even having a reopening in the first place?

                  1. Amos, when you're deep in a hole, the smart thing to do is stop digging.

                    1. ah....Clem
                      August.24.2021 at 1:13 pm
                      Flag Comment Mute User
                      Amos, when you’re deep in a hole, the smart thing to do is stop digging."

                      In the grand scheme of protocols to reduce transmission of covid, masks play a very minor role. So if the virus remains so deadly, why are the schools even open. Amos's point remains valid

                    2. Tom,
                      You actually don't know how minor a role they play. You're just postulating that for sake of argument.
                      In fact, you're the fellow who instructed us about speed bumps and ventilation.

                2. But even if it reduces infections by only 50% (a number I just pulled out of the air for the sake of argument) that would leave us 50% better off than we were before.

                  Actually, that would leave us a lot better off than 50% better. Exponential growth, or the absence thereof, is a marvellous thing.

                3. K_2,
                  This virus has been seen (reported in Nature) to have mutated into 13 distinct variants in a single person.
                  This is all going to get worse before it gets better.

                  1. Maybe. Maybe not. At this point I'm more concerned with the responses mutating than the virus.

                    1. Brett,
                      The fact is that there is NOTHING that you or I can do about the responses

                    2. Brett,
                      Start reading about the Lambda variant, you'll see why I say it will get worse.

                  2. "This is all going to get worse before it gets better."

                    Yes, is already at the endemic stage.

                    1. Bob,
                      YOU do not know that with respect to the human population and have no relevant experience to make such a judgement.
                      But coronaviruses are endemic in bats.
                      Endemic is just a slogan to you.

                4. You don't understand how viruses work, then. All you are arguing for is doubling the time for the virus to continue to exist. Flattening a curve lengthens the horizontal axis, nothing more.

                  1. Paddy,
                    Your confusing a virus with an incompressible fluid

              2. Captain False Dilemma!

  3. How does an unelected bureaucrat have the power to just order private schools to do whatever?

    Homeschool.

  4. "believes that every human has dignity and is made in God's image and likeness. Unfortunately, a mask shields our humanity. And because God created us in His image, we are masking that image.""

    From the same people who will shame and abuse a girl for having a skirt or shorts just a little to short, nevermind one that shows anyone she's not married to her god given body? And prohibits tank tops because shoulders are distracting? I sure as fuck question their sincerity in saying masks implicate their religious views of the human form.

  5. It is a silly position. However,

    First, many of the exceptions, such as medical intolerance to mask use, eating and drinking, swimming, or receiving a medical treatment during which a mask cannot be worn, are "inherently incompatible with" wearing a mask.

    Religious belief is superior in this, and government should not be stepping on it.

    As an atheist I think it's foolish. As someone who doesn't want government approving its own violations of basic rights using streams of words, I am opposed.

    Back to atheist: how do you think religions, as giant memeplexes, evolved their current set of principles and values? Exactly this way, by what is useful to dominate.

    As a political observer poking both sides, how do you politics, as giant memeplexes, evolved their current set of principles? Exactly this way.

    So we gated the former out of being able to pass laws to benefit any one religion. And we gated the second behind requirements for supermajorities to approve changes to the fundamental powers the government gets (and only gets).

    Two sides fighting the same old battle. One must win. I hope it errs on the side of forbidding government from growing its own power to trod on fundamental rights.

    1. Government can trod on rights but it also can protect rights. The key in loving liberty is not to be anti-government, it's to make sure government isn't doing the former but can and is doing the latter.

      1. And the ordering of rights in importance, as defined by The People via supermajority-approved constitution, informs the created government of its priorities. Enumerated and unenumerated, then statutorily-created, then laws, though the latter may step on each other with or without explicit requirements to override each other, if a game of Nomic sounds fun.

        Just no growth in government power without explicit approval by the people. This is a barrier learned from cruel history far worse than the pleadings of any politician for good.

        1. Yes, government must have majority consent to be legitimate.

        2. Just no growth in government power without explicit approval by the people. This is a barrier learned from cruel history far worse than the pleadings of any politician for good.

          Krayt, that is a fine principle, but misconstrued more often than not. Problem is, government power is of two kinds, which operate quite differently. Ultimate government power is sovereign power, the power to create a government, constrain it, and define and enforce rights. Secondary government power is what results from a sovereign's decree, as, for instance, with the American Constitution. That is the part that ought to run the way you say.

          Unlike government power, sovereign power is always exercised at pleasure, and is without constraint. Government remains legitimate not because it commands majority or super-majority support per se, but because it conforms to sovereign will (which may establish super-majority requirements, among many other constraints). Sovereigns remain legitimate so long as they command the belief of the populace that the sovereign is entitled to rule. Raw power figures in that, of course.

          1. "Sovereigns remain legitimate so long as they command the belief of the populace that the sovereign is entitled to rule."

            How much of the populace? 51%? 100%?

            In your estimation, was Stalin ever not legitimate?

            I assume you are familiar with the history where people who Stalin had condemned to the gulag still supported him. Does that make him legitimate?

    2. Religious belief is superior in this {exceptions to mask wearing?}, and government should not be stepping on it.

      . I'm not following what or how religious belief is superior.

  6. I am Catholic and there is nothing whatsoever in my faith that forbids wearing masks. Not one thing.

    1. I have never heard such a thing either, and I grew up Catholic.

      I cannot judge the needs of growing children to see faces and facial expressions, but that's psychological and brain developmental. But I have never heard of a religious issue.

      Covered faces, yes, but not uncovered faces.

    2. In fact, for a good deal of last year and this spring, our pastor was pretty adamant that he thought wearing a mask was a good idea.

      In that, "I'm not going to order you to, but you know what you should be doing." sort of way pastors have.

      That's not going on now, because it's not remotely as bad now. The current death rate is about where it was late last July, or early August, even though the case rate they keep harping on is two to three times what it was back then.

      1. "current death rate is about where it was late last July, or early August,"
        Not too bad an estimate, but the daily rate was a bit less than 2% then and it is a bit more than 2% now.

        1. How does it do that when the death rate is the same, and the case rate is 2-3 times higher?

          US Covid statistics

          Aug 24, 2021: 1,406 deaths
          July 31, 2020: 1,429 deaths

          Aug 24, 2021: 150,004 new cases
          July 31, 2020: 69,088 new cases

          I suppose you could argue that you have to use a lagged case rate, because it takes a little while to die.

          But it still looks to me like we're going to peak way below the start of this year, in both cases and deaths.

          And I'll mention again that I don't like the case rates, because they're NOT derived from random population testing, both the number of tests and the criteria keep changing.

  7. "Results found that commonly worn cloth masks and basic surgical masks were only capable of filtering exhaled particles "at apparent efficiencies of only 12.4 percent and 9.8 percent, respectively." https://www.yahoo.com/lifestyle/type-mask-wont-protect-covid-113449639.html

    Maybe the court should have said the mask requirement lacks a rational basis.

    1. From Bob's cited source: "There is no question it is beneficial to wear any face covering, both for protection in close proximity and at a distance in a room," Serhiy Yarusevych, PhD, a professor of mechanical and mechatronics engineering and the leader of the study, said in a statement."

      Shouldn't be surprised that those who choose dumb hills to die on run up them in dumb and dumber ways.

      1. That's why it's not worth the discussion.

        As a factual matter, I agree that there are degrees of effectiveness. A gaiter is worse than a good cloth mask. But even a good cloth mask has only marginal (at most) value when it comes to getting COVID, and limited value in terms of transmission.

        But the anti-maskers are never making the argument that we should all be using N95 masks, are they? It's never, "The mask mandates don't go far enough!"

        In essence, there's two arguments being made-
        A. "Ima not wear masks. You can't tell me what to do!" This is the most common one; masks are seen as "liberal" and not wearing masks is seen as a symbol of partisan affiliation. There's not much thought given to consistency or principle or evidence other than arguing against masks, often with some variation of "MAH RIGHTS."

        B. People who just don't care; I say that somewhat dismissively even though I feel like that some days. There are very well-meaning people who truly believe that you have to break some eggs to make an omelet, and we'll just have to cull some weaklings to get herd immunity. Others are tired of COVID. Others look at the odds, figure they're not going to die, so screw y'all.

        A lot of the time, I'm in B. I'm demoralized. I honestly thought he were turning a corner in the early summer. I was vaxxed up, things were looking good. You know when I realized it was going to h-e-double hockey sticks? When I kept seeing these indoor events that said, "You have to be masked or vaxxed." And no one was masked. And I knew, from the numbers, that most of the people weren't vaxxed. So ... yeah.

        People suck. People will lie. People will buy fake vax cards and lie about their religion. And people don't much care about their neighbors, or public health, or any of that old timey stuff.

      2. “There is no question it is beneficial to wear any face covering, both for protection in close proximity and at a distance in a room,”

        Spin. He doesn't want to be accused of being "anti-mask".

        9% efficiency for the masks 90% of the kids will be wearing. Of course they won't be wearing them at lunch and they will be constantly pulling them down and pulling up.

        Its just like TSA security theater. Mostly useless but soothing to the frightened. I guess that is a kind of "beneficial".

        1. "Spin"
          Of course, quote the part you like spurn the part you don't.
          In my profession, we call that lying or academic misconduct or fraud. Take your pick, Bob

          1. “There is no question it is beneficial to wear any face covering, both for protection in close proximity and at a distance in a room,”

            They can both be right. Meaning, a 10% or 12% efficiency in stopping droplets is beneficial. I mean, 12% is better than 0%. To me, such a low benefit to promulgate this large of a policy is just following the political science (or theater). It is less deleterious to me to require teachers to be vaccinated versus universal masks for children for 8 hours a day. Isn't that really the trade-off we should be discussing?

            1. We should do both, that's how we might someday get rid of those masks.

        2. Lol, Bob cites source, it explicitly contradicts his point in citing it, he then says 'oh, that part is just spin.'

          In other words, Bob.

          1. The question is not whether it's "beneficial", it's whether it's beneficial enough to be justifiable to command.

            And whether it's beneficial enough to outweigh the downsides.

            See, this is one of the best indicators that you're in a moral panic: You stop doing cost benefit analysis. You stop asking if something helps enough to be worth doing, to help more than it hurts, because you're in a mindset where asking those questions makes you feel guilty.

  8. I bet Plaintiffs are wishing the Court had accepted Defendants' mootness argument.

  9. the final solution which a few friends of mine have done is to get a few families with kids about the same age and hire a teacher..teach in a room in someone's home or in this case a friend built a heated room with bathrooms as a "cottage" on his property..and they pulled their kids from public schools that weren't really in session anyway and are home schooling..this is the only solution to break up the school lobby and authoritarian left that is taking over..masks don't work..they just don't..other than to give people confidence govt actually knows what is going on and is in control...they don't and are not.

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