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SCOTUS Justice Alito: "Religious Liberty Is In Danger Of Becoming A Second-Class Right"


smac97

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5 hours ago, Analytics said:

Churches get all sorts of tax breaks that the businesses you listed do not. From this perspective, churches get disparate, favorable treatment and regulations by the government. On the whole, I think churches are treated very favorably--in my opinion, unconstitutionally so.

You are so right.   Unfortunately, the courts do not agree with you.  But I am solidly with you.  Jefferson actually spoke out against breaks for religion.  He further argued that if religions were going to get breaks there should be a "wall" protecting not only religion from government but vise versa.  No members of the clergy in government, he wrote. 

It is offensive to equanimity to give tax breaks to parsonages, charitable contributions to religions whose only charity is religion and the like.

But I also argue it is offensive to give legislative protections to gunmakers that aren't provided to chainsaw manufacturers.  We can kill our children and our neighbors with guns, but heaven help you if you chainsaw somebody.

Edited by Bob Crockett
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On 11/22/2020 at 11:33 AM, smac97 said:

It's not just casinos that are getting better treatment than religious groups.  

And yet they weren't.  Nor gyms.  Nor liquor stores.  Nor home improvement stores.  Nor abortion clinics.  And on and on and on.

But churches have.  Religious groups have been singled out for disparate, lesser treatment.

Casinos are a lot like churches in regards to Covid transmission. Lots of people in a space for an extended period. I am not sure liquor stores and home improvement stores are the same unless you stay in one for an hour.

They were not singled out for lesser treatment. Here in Texas the state government bent over backwards to defend churches compared to other business to the point (I would argue) that it jeopardized public health. Also many of those stores are needed. If something breaks in your house you still have to fix it even in quarantine. Liquor stores don't usually sell just liquor. It can be argued that shutting down liquor stores would swamp public health resources as alcoholics start withdrawal.

On 11/22/2020 at 11:33 AM, smac97 said:

And in many jurisdictions, they have been, while many other locations have been allowed to remain open for people to congregate.

I disagree.  I think there is ample evidence of disparate, discriminatory treatment by government of religious groups.

And there were plenty of exceptions to this default.

The places most like churches in terms of covid transmission (movie theaters, theaters, sports arenas, music halls, etc) were all shut down. It takes a lot of twisting to make your examples work.

On 11/22/2020 at 11:33 AM, smac97 said:

I think this is looking at the problem from the wrong angle. ;)

Possible, that is why I explicitly explored both angles.

On 11/22/2020 at 11:33 AM, smac97 said:

You are willing to cede to the government far more control regarding your life than I am regarding mine.

I would rather have more people with lives they are able to control when it is over. In the "life, liberty, pursuit of happiness" trio it is dangerous to put the second over the first. The opposite is true too of course.

On 11/22/2020 at 11:33 AM, smac97 said:

Lots of wiggle room in there.  

That there are minor factions opposed to religious liberty? Sure, but why are we paranoid about them?

On 11/22/2020 at 11:33 AM, smac97 said:

I disagree with this characterization.  What is being expressed is neither "doomsaying" nor "crazy."

I disagree.

On 11/22/2020 at 11:33 AM, smac97 said:

As a contrary caution, I think there is real risk in ignoring incremental incursions against religious liberty.  Malaise instead of vigilance.

 “The condition upon which God hath given liberty to man is eternal vigilance.” - John Phillip Curran

It is not an incremental incursion. Everything that everyone is complaining about in regards to religious meeting restrictions from the pandemic will go away when the pandemic is over. If it doesn't I will get my pitchfork and torch and join you in the revolution against it. I promise.

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On 11/23/2020 at 9:13 AM, Bob Crockett said:

You may be right but there is no ethical standard, statute or constitutonal provision which limits what Supreme Court justices may say.    The constitution provides:  "The Judges, both of the supreme and inferior courts, shall hold their offices during good behavior."  But they may be impeached for “treason, bribery, or other high crimes and misdemeanors.”

No Supreme Court justice has ever been impeached and convicted and certainly not for speaking out on social issues.  There are many examples of justices being highly political.   One of the justices (I can't recall which today) who sat on the Reynolds case involving polygamy was chairman of a national Bible society responsible for pushing a constitutional amendment to make the United States  a Christian nation.

While true there has been a tradition of avoiding political topics in public forums. There is also no law that I know of about a President or Congress "suggesting" to the Supreme Court that they should or should not take up a specific case but long tradition has made it so that neither communicates such requests or even appears to. Then again traditions that safeguard the government are eroding so who knows? If we are stuck with the letter of the law alone I suspect we are doomed.

As other have pointed out Supreme Court Justices do speak in general on things like interpretations of the constitution and other judicial things. They should. They are experts. It is dangerous when it is more about arguing a case in front of people as opposed to discussing how you argue a case.

And before anyone points it out, yes, there have been Justices in US history that have definitely NOT followed that structure.

Edited by The Nehor
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6 minutes ago, The Nehor said:
On 11/22/2020 at 10:33 AM, smac97 said:

You are willing to cede to the government far more control regarding your life than I am regarding mine.

I would rather have more people with lives they are able to control when it is over. In the "life, liberty, pursuit of happiness" trio it is dangerous to put the second over the first. The opposite is true too of course.

Benjamin Franklin once said: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

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On 11/19/2020 at 1:27 PM, Ahab said:

Good luck with that.  Fighting the U.S Supreme Court in this country is pretty much like fighting City Hall in every city.  We could protest and scream and throw fire bombs at buildings, etc, but still it would be up to our Officials to change their own minds.

You can always do what President Jackson did and just ignore them. They found the "Trail of Tears" relocation had some legal issues. He did it anyways.

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5 minutes ago, longview said:

Benjamin Franklin once said: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

I agree in general and I would argue that we are failing at that but not due to the pandemic. The pandemic will be beaten one way or another and these restrictions (good or bad) will go away. No one is going to issue stay at home orders when most of the population has been vaccinated. If they do we break out the pitchforks and torches.

I would say the best way to give up some safety to get some liberty would be things like the Patriot Act which was implemented in a climate of fear. The threat of international terrorism was high and maybe some of it made sense but.....when do we get rid of it? What about the quasilegal holding site at Guantanamo? The argument for keeping it open is that we are safer with it there but isn't it an affront to liberty to hold people in detention indefinitely? We have people calling for more law and order (less liberty) in the streets because a few dozen have been injured or died in connection with protests but a quarter of a million dead from Covid means we shouldn't have temporary restrictions? It is insane.

I would add again that we have had pandemics in the past. None of the Spanish flu lockdown rules are still in effect. Why do some insist that THIS TIME they will stick around? It is paranoia.

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13 hours ago, The Nehor said:

I agree in general and I would argue that we are failing at that but not due to the pandemic. The pandemic will be beaten one way or another and these restrictions (good or bad) will go away. No one is going to issue stay at home orders when most of the population has been vaccinated. If they do we break out the pitchforks and torches.

There is good news coming to the fore.  We are now better equipped to deal with this issue.  Check out this column from a Stanford University medical professor who has a great deal of across the board expertise:

https://imprimis.hillsdale.edu/sensible-compassionate-anti-covid-strategy/

Jay Bhattacharya is a Professor of Medicine at Stanford University, where he received both an M.D. and a Ph.D. in economics. He is also a research associate at the National Bureau of Economics Research, a senior fellow at the Stanford Institute for Economic Policy Research and at the Freeman Spogli Institute for International Studies, and director of the Stanford Center on the Demography and Economics of Health and Aging. A co-author of the Great Barrington Declaration, his research has been published in economics, statistics, legal, medical, public health, and health policy journals.

From the article, Jay stated:  "So how do we get an accurate fatality rate? To use a technical term, we test for seroprevalence—in other words, we test to find out how many people have evidence in their bloodstream of having had COVID."  He makes a well reasoned conclusion from his numerous studies that the actual death rate averaging around 0.2 percent.

He also verified:  "Last week I met with two other epidemiologists—Dr. Sunetra Gupta of Oxford University and Dr. Martin Kulldorff of Harvard University—in Great Barrington, Massachusetts. The three of us come from very different disciplinary backgrounds and from very different parts of the political spectrum. Yet we had arrived at the same view—the view that the widespread lockdown policy has been a devastating public health mistake. In response, we wrote and issued the Great Barrington Declaration, which can be viewed—along with explanatory videos, answers to frequently asked questions, a list of co-signers, etc.—online at www.gbdeclaration.org."

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48 minutes ago, longview said:

There is good news coming to the fore.  We are now better equipped to deal with this issue.  Check out this column from a Stanford University medical professor who has a great deal of across the board expertise:

https://imprimis.hillsdale.edu/sensible-compassionate-anti-covid-strategy/

Jay Bhattacharya is a Professor of Medicine at Stanford University, where he received both an M.D. and a Ph.D. in economics. He is also a research associate at the National Bureau of Economics Research, a senior fellow at the Stanford Institute for Economic Policy Research and at the Freeman Spogli Institute for International Studies, and director of the Stanford Center on the Demography and Economics of Health and Aging. A co-author of the Great Barrington Declaration, his research has been published in economics, statistics, legal, medical, public health, and health policy journals.

From the article, Jay stated:  "So how do we get an accurate fatality rate? To use a technical term, we test for seroprevalence—in other words, we test to find out how many people have evidence in their bloodstream of having had COVID."  He makes a well reasoned conclusion from his numerous studies that the actual death rate averaging around 0.2 percent.

He also verified:  "Last week I met with two other epidemiologists—Dr. Sunetra Gupta of Oxford University and Dr. Martin Kulldorff of Harvard University—in Great Barrington, Massachusetts. The three of us come from very different disciplinary backgrounds and from very different parts of the political spectrum. Yet we had arrived at the same view—the view that the widespread lockdown policy has been a devastating public health mistake. In response, we wrote and issued the Great Barrington Declaration, which can be viewed—along with explanatory videos, answers to frequently asked questions, a list of co-signers, etc.—online at www.gbdeclaration.org."

The Great Barrington Declaration is a fringe movement viewed as dangerous by the majority of epidemiologists and public health professionals. It is just another call for non-vaccine herd immunity. Just let it run wild through the population (except protect the vulnerable with no explanation of how that is to be done) and it will eventually go away. It might after a million or so in the US are dead.

There are some horrible flaws with those numbers. 0.2% fatality rate? There are roughly 325 million people in the US. So with this fatality rate we should expect 650,000 deaths total if we just let it burn. We have about 260,000 deaths. That suggests that over a third of the US has had it and if projected death tolls bear out half will have had it by January. Yet serology studies done last month suggest less than one in ten have had it. If we are approaching 50% of the US having it then we should see the infection rate falling. This is where herd immunity should start to slow the spread but we are not seeing that either.

I don’t buy it and neither do the experts and I question the obsession with opening everything up. We need to slow the spread now specifically because our medical resources in many areas are getting close to the breaking point. If we do not have the resources to treat patients the fatality rate will increase and we are back to triage deciding who to treat.

It also came from an economic institute and not a medical one. It wears its biases on its sleeve and its appeal is obvious. It is just wrong.

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Just now, Bob Crockett said:

Good riddance.

The argument I was making that it will actually be millions. They vastly overestimate how many people have had it and underestimate how many will die. But if you want the death count high I guess my message is good news. :)

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28 minutes ago, Bob Crockett said:

Good riddance.

I think I now know how you would use the infinity stones if you had them in a glove and all you had to do was just snap your fingers.

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4 hours ago, Bob Crockett said:

Good riddance.

Do you actually see a massive amount of people dying as a good thing or did you mean something else?

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Supreme Court 5-4 grants relief for New York Governor’s capacity limits. Interesting thread on this and I’m sure a very interesting read about the courts opinion on this topic. Follow the whole thread for a quick take. 
 

 

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A recap...

I started this thread to discuss Justice Alito's claim that religious liberty has been impaired, or at least in some sense has had incursions against it, via governmental edicts about COVID.  

It has been interesting to see that the differences of opinion expressed in this thread seem to have less to do with our posture toward the Church (as is so often the case on this board) and more to do with generalized attitudes about government and medical care relative to COVID.

Some participants concurred, to varying degrees, with Justice Alito's evaluation:

  • CV75: "Yes, these are voluntary, temporary restrictions to normal practice guided by the Church given that states have ordered exceptions to their restrictions for religious purposes. But as Elder Bednar recently pointed out, there have been some unfortunate exceptions / attempts at exceptions to that which need to be prevented from happening again. ... Alito mentioned 3 cases and explained why they are troublesome evidences of the relationship between executive orders and sentiments unsupportive to religion. ... {T}rends betray decreasing tolerance toward religion and increasing tolerance for executive orders, and yes, these have an effect attitudes toward protecting religious liberty."
  • Bernard Gui: "This combined with the hostile forces already arrayed against religious belief in entertainment, the media, and education should cause all to be concerned. ... There is no question that religious freedom is under attack in our state....not always by the state, but also by the predominant culture in the power areas."
  • provoman: "Except prohibitions against religious gatherings are an infringement."

Others expressed either indifference to, or outright rejection of (and some even contempt for), this concern:

  • MustardSeed: "I have zero concerns around this."
  • carbon dioxide: "I have not seen any infringement on my religious liberty."
  • The Nehor: "Alito is dead wrong. ... This doomsaying is crazy. ... It is paranoia."
  • pogi: "I am just saying that I think our religious liberties are safe. ... We already have protections in place to safeguard our religious liberty.  ... There is no  infringement.  ... Nothing to fear.  Sure there are enemies of religious liberty that would strip it from us if they could, but they can't.  This is not a concerted effort to attack religious liberty. ... No governor in their right political mind would try to keep church restrictions permanent.   That is a boogeyman.  They couldn't do it if they wanted, nor would they try. ... I don't see any evidence of trends in decreasing tolerance toward religion through executive order. ... I think the fears of any permanent harm to religious liberty are unfounded and causes mistrust in government officials executing their constitutional powers to preserve lives in a public health emergency. ... I remain unconvinced. ... People are angry about limiting church gatherings.  They are resisting constitutionally protected powers to protect the public.  It is dangerous.  They are fighting AGAINST the constitution of the USA.  I feel like this whole thread is only adding fuel to the existing fire."
  • stemelbow: "I don't really understand the complaints. ... I do think people tire of the complaint that religious liberty is under attack. ... You're wrong ... religious liberty isn't under attack. ... Religion will be fine and everyone will get to gather again.   I know many can't wait....and that's likely why people are crying religious persecution. ... No one's out to get you. ... Yes, the threat, particularly as described in this thread seems to be imagined.  ... {T}hese examples aren't showing religious liberty is under attack at all.  It's imagined.  ... {Religious liberties being under attack is a} silly thought."

Pogi further stated: "I think our religious liberties are safe - look at the Supreme Court right now.  I think this is a boogeyman - especially as it relates to the pandemic."  Similarly, Bob Crockett claimed (responding to "I think there is ample evidence of disparate, discriminatory treatment by government of religious groups"): "I hestitate to say 'not one' but not one court in the land has agreed with you."

Then we come to the SCOTUS decision that bsjkki noted, and described further here:

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SUPREMES STRIKE DOWN CUOMO’S ANTI-RELIGIOUS COVID LIMITS: In a 5-4 decision that is full of positive implications for First Amendment litigation regarding religious freedom and practice, the Supreme Court late yesterday slapped down New York Gov. Andrew Cuomo’s restrictions on worship gatherings in targeted areas hit hard by Covid.

The decision acknowledged that the nine Justices on the nation’s highest court “are not public health experts,” but it went on to explain that “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.”

I appreciate and respect many of those posters who have expressed skepticism that religious liberties have been infringed upon.  I hope they will consider this assessment.

Quote

...But what is certain is that for those who love the First Amendment as a whole, and especially its guarantees of religious freedom and practice, this decision is something to indeed be thankful for on this Thanksgiving Day 2020.

... The full opinion is here. Excerpt:

At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

Nehor made essentially this same point, but still rejected the idea that this disparate treatment is an incursion against religious liberty ("I would argue it is less that religious liberty is under attack and more that casinos can exert more pressure on lawmakers. Casinos should have been shut down. Houses of worship should have been shut down. Acting like this is an attack on religious liberty and not someone trying to keep the casino owners (and the incoming tax dollars from them) happy seems wrong.")

Nehor thinks that casinos "should have been shut down" along with religious meetings, but that this disparate treatment still does not work out to be a violation of the First Amendment.  I would respectfully disagree.  That religious gatherings have received separate, lesser treatment at the hands of government as compared to casinos (and hardware stores, and acupuncturists, and liquor stores, and signage companies, and accountants, and lawyers, and insurance agents . . .) seems like a pretty clear example of religious liberties being improperly infringed upon.

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As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

I think this excerpt encapsulates rather well the concern I and others have expressed regarding the threat to religious liberty.

This is not to say that religious gatherings should be completely unfettered by COVID-related concerns.  Rather, I think the issue here is that restrictions on religious gatherings and groups should at least be on equal footing with restrictions on other types of activities.

Thoughts?

Thanks,

-Smac
 

Edited by smac97
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Happy Thanksgiving everyone.  Thought you might like reading this bit of trivia about Thanksgiving.

George Washington was the first to declare Thanksgiving a holiday, but it was on a year-to-year basis, so presidents had to re-declare it every year, according to The Washington Post. Thomas Jefferson was so adamantly against Thanksgiving that he refused to declare it a holiday during his presidency, and many say that he called the holiday "the most ridiculous idea ever conceived." Most historians agree that Jefferson really refused to declare the holiday because he believed in the separation of church and state, and thought that the day of "prayer" violated the First Amendment. It wasn’t until 1863, when Abraham Lincoln proclaimed Thanksgiving a federal holiday, that it was officially scheduled to fall on the fourth Thursday of every November. 

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10 hours ago, smac97 said:

This is not to say that religious gatherings should be completely unfettered by COVID-related concerns.  Rather, I think the issue here is that restrictions on religious gatherings and groups should at least be on equal footing with restrictions on other types of activities.

Thoughts?

At the very least, since it falls under the specifically-listed "guaranteed" freedoms.

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12 hours ago, smac97 said:

Rather, I think the issue here is that restrictions on religious gatherings and groups should at least be on equal footing with restrictions on other types of activities.

Similar activities yes, not in general though. 

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1 hour ago, smac97 said:

Could you elaborate?

If a medical, legal, military,  food production (growing, processing, buying, prep), or emergency situation required a certain number of people in a room at a time, I do not think that should be used as justification to allow religious gatherings of the same size.

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33 minutes ago, Calm said:

If a medical, legal, military,  food production (growing, processing, buying, prep), or emergency situation required a certain number of people in a room at a time, I do not think that should be used as justification to allow religious gatherings of the same size.

What about a gym?  An acupuncturist's office?  A liquor store?  Ought religious gatherings be on equal footing with these?

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44 minutes ago, smac97 said:

What about a gym?  An acupuncturist's office?  A liquor store?  Ought religious gatherings be on equal footing with these?

A gym is, imo, a special case as while it is important for people to keep their health routines healthy, gyms have been shown to be prone to spreading the virus, so counterproductive and therefore should be closed.  An acupuncturist...iffy about.  Probably treat it similar to physical therapists.  There are studies that show possible benefits, I don't see individual treatment rooms as a major problem if ventilation is possible between patients, but given the likely vulnerability of their clients, group sessions should probably be banned.  Liquor store...shopping has been shown to be relatively low risk...use appropriate social distancing and masks and I would include it with other shopping categories. I assume beer or wine in most places at least can be bought at other food stores, so wouldn't put it under essential as those addicted to alcohol still have access to sufficient amounts through grocery stores and convenience stores, so as not to force people into withdrawal without medical oversight.  If it is a county that has no other liquor outlets (are there places like that left?), then should be allowed to stay open with strict rules on how many allowed in store at a time and for how long as well as masks required.

Edited by Calm
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Apparently Utah and some other states only allow lower percentage of beer in grocery stores (4% in the case of Utah where typical beer is 5% alcohol), but sounds like that is still enough in most cases to prevent withdrawal, though one might be drinking a lot of it.  Beer is actually a useful way to taper down usage apparently:

https://hams.cc/taper/

If someone has more accurate info, happy to be corrected.  Withdrawal can be lifethreatening even in mild cases if other issues are involved, so I believe it is counterproductive to prevent any access to a source of legal alcohol, but it sounds like for most beer would be enough.

Edited by Calm
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On 11/13/2020 at 4:59 PM, Bob Crockett said:

Although I have published in the area of religious liberty (https://lawandreligion.com/sites/law-religion/files/Religious-Free-Speech-Crockett.pdf), I have come to the conclusion that It isn't that important to the courts anymore.  RFRA was partly struck down.  I have been following COVID litigation and the churches have not prevailed.  

As a libertarian I am torn on the issue.  I am for complete freedom in the area of worship, as I am for the possession of guns and making publications, but I also oppose specialized legislation. 

SC just ruled in favor of churches in a case that came from NYS.

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11 hours ago, smac97 said:

What about a gym?  An acupuncturist's office?  A liquor store?  Ought religious gatherings be on equal footing with these?

Any place where people congregate in large numbers close together pose a higher risk.  Gyms and churches seem to fall into that category. The other two do not. I imagine like a grocery store and maybe more so someone who goes to a liquor store in and out quick and not in close contact with anyone.

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