Placed another piece

[Bob78164]

You may recall that I had a piece published on Taegan Goddard's Political Wire Web site on July 4, 2018. I've written another piece and Taegan has accepted it as well. At my request, Taegan is holding it until Monday morning for publication. We've agreed to exclusivity for a week, so I'll post the text, for any who may be interested, after that week has elapsed. --Bob

[SpacemanSpiff]

Cool!

[Vandal]

Well done, sir!

[Bob78164]

Here's the piece, for those who are interested.

Just before Thanksgiving, the Supreme Court’s issued a dead-of-night decision intended to signal sharp limits on government’s ability to limit religious services in the name of pandemic safety. Shortly before midnight Wednesday night, the Court issued an emergency injunction preventing New York State from imposing strict numerical limits on worship services — limits that New York had already lifted. In the words of Chief Justice Roberts, the Court was “telling the Governor not to do what he’s not doing.”

The Court’s decision rests on a failure of analysis at both the political and judicial levels. The good news, for those who see the risk of untrammeled worship services becoming superspreader events, is that the failures may be fixable. Here’s the problem, along with a solution.

The states are generally dividing businesses and other activities into two “buckets,” which they’re calling “essential” and “non-essential.” Activities we’re permitted are deemed “essential,” while those we’re restricting or forbidding are deemed “non-essential.” But that’s obviously wrong. There are at least three buckets.

Some activities truly are “essential.” Think hospitals, power-generation, and grocery stores. Add to the list of essential activities the steps in their supply chain that are necessary for our essential activities to continue operating, such as food production and cargo transport. As a society, we simply can’t shut these activities down en masse for any length of time, even if they carry a risk of spreading the disease. All we can do is find ways to mitigate the risk.

A second category of businesses, lost in the political rhetoric of “essential” businesses, can be called “safely operable” businesses. Retail stores such as art supply stores are an example. These are businesses that are not essential to the functioning of our society. They can however, be operated with relative safety with social distancing measures. The magnitude of the necessary measures can be adjusted — more severe measures, up to and including a complete shutdown, can be imposed as the pandemic worsens in the area.

The third and final category of businesses and activities is those that are not essential and cannot be safely operated. These tend to be indoor activities where substantial numbers of people are present and remain indoors for significant lengths of time. Movie theaters are a classic example. And of course, businesses (such as restaurants) may move back and forth between the “safely operable” and “forbidden” categories, depending on local conditions.

Politicians have generally been referring to all businesses that remain open as “essential” businesses, but that’s clearly not the case. It may well be possible to safely operate a pet store but there is no universe in which pet stores are essential. This failure of political rhetoric resulted in a failure in the Court’s analysis. The Court noted that New York State classified as “essential” businesses such as camp grounds. Justice Gorsuch elaborated that “essential” businesses include liquor stores. The Court’s majority rejected the proposition that these secular businesses are more “essential” than are religious services. That is clearly correct, but it misses the practical point. People linger at religious services. They socialize. That makes in-person religious services a much more substantial risk of infection than most secular activities.

States should clean up their regulatory act. They can do so by clearly distinguishing between (a) activities and services that truly are essential, and must continue notwithstanding the risk of infection, and (b) activities and services that are not essential, but can be operated with an acceptable margin of safety under extant conditions. Religious services, like many secular businesses, fall squarely in the latter camp. States will then be able to distinguish religious services from other applicants for “safely operable” status by noting that people remain at indoor religious services for extended periods of time.

With this clarification, even this hypersensitive Court majority should defer to reasonable governmental restrictions on in-person religious services.