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News From The COVID Front.

It’s been a while since we discussed the pandemic that has impacted everyone and seemingly every thing.

You are probably aware of the vaccine(s) that are now available, people getting the vaccines and data – that precious commodity that will show efficacy and side effects – is being collected.

However, there other issues as well going on of which you might not be aware.


A Federal judge has ruled that restrictions placed on gatherings and businesses by Pennsylvania Governor Tom Wolf were un-Constitutional because they are too broad:

A federal judge on Monday has ruled that lockdown restrictions imposed by Pennsylvania Gov. Tom Wolf (D), including a ban on large gatherings and the closure of “non-life sustaining businesses,” are unconstitutional.

While those restrictions were “well-intentioned,” wrote U.S. District Judge William Stickman IV, “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good—especially in time of emergency.”

In May, Wolf and Pennsylvania Department of Health Secretary Rachel Levine were sued by a coalition of counties, federal and state elected representatives, and several small businesses over the state’s coronavirus restrictions. The restrictions included a shelter-in-place order requiring people to stay in their homes, a closure of all “non-life-sustaining” businesses, and bans on gatherings of more than 25 people indoors, or 250 people for outdoor gatherings.

The plaintiffs collectively argued that the governor’s restrictions on gatherings violated the First Amendment’s protections of free speech and assembly. The shelter-in-place order and closure of businesses, they contended, were a violation of their rights to substantive due process under the 14th Amendment.

Wolf’s lawyers had argued that the restrictions on gatherings and business openings were well within his powers to respond to a public health emergency. He also argued that the lawsuit was moot because the state had since allowed many businesses to resume, including in the counties suing the state. Because emergency orders had only been partially suspended, and not retracted in their entirety, Stickman ruled that plaintiffs were still in their right to challenge them, reports the Philadelphia Inquirer.

In regards to restrictions on gatherings, Stickman ruled that these were not “narrowly tailored” but “rather, they place substantially more burdens on gatherings than needed to achieve their stated purpose” of controlling the transmission of the virus.

Interestingly, Judge Stickman quotes a Supreme Court ruling in the case of Calvary Chapel Dayton Valley v Sisolak where Calvary Chapel had appealed to the Supreme Court for an injunction against the mandates issued by Nevada Governor Steven Sisolak where regulations on gatherings at churches were more severe and restrictive than that at casinos. The request for an injunction had been denied by a district court and the Ninth Circuit Court of Appeals.

The Supreme Court injunction was denied, with Judge Alito writing in dissent:

For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency – and the opening days of the COVID–19 outbreak plainly qualify — public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules. In general, that is what has happened thus far during the COVID–19 pandemic.

But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.

Alito was arguing that restrictions and mandates that infringe on Constitutional rights may be put in place initially, but as more data and evidence becomes available, the restrictions and mandates should be changed to reflect that knowledge and reduce or eliminate Constitutional conflicts.

The denial of the injunction in the Calvary Chapel case was issued in July. At that time, Courts, including the Supreme Court were allowing governments to make broad restrictions.

However, on November 25, in a case called “Roman Catholic Diocese of Brooklyn, New York v. Cuomo” the Supreme Court ruled that an injunction preventing the implementation of mandates by New York Governor Cuomo would be granted. The Diocese had sought the injunction as the mandates placed limits on attendance at houses of worship that were much more restrictive than those placed on other establishments. The injunction stated that the Diocese would most likely prevail on the merits of the case and therefore an injunction was warranted.

The logic of the order was along that of Alito’s earlier thinking. Slowly, what had been five Justices ruling for the State of Nevada in the Calvary Chapel case became four justices, then three, then two. Judge Stickman, in his opinion in the Pennsylvania case called this “a seismic change in jurisprudence.”

And so it was.


It was a seismic shift because the Diocese injunction spurred the Ninth Circuit to revisit their denial of an injunction in the Calvary Chapel case.

The Ninth Circuit reversed itself on December 25, 2020 on denying the injunction, writing:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. As a result, the restrictions in the Directive, although not identical to New York’s, require attendance limitations that create the same “disparate treatment” of religion. Id. at *2. Because “disparate treatment” of religion triggers strict scrutiny review—as it did in Roman Catholic Diocese—we will review the restrictions in the Directive under strict scrutiny.

[….]

The Directive—although less restrictive in some respects than the New York regulations reviewed in Roman Catholic Diocese—is not narrowly tailored because, for example, “maximum attendance at a religious service could be tied to the size of the [house of worship].” Id. In other words, instead of a fifty-person cap, the Directive could have, for example, imposed a limitation of 50% of fire-code capacity on houses of worship, like the limitation it imposed on retail stores and restaurants, and like the limitation the Nevada Gaming Control Board imposed on casinos. Therefore, though slowing the spread of COVID-19 is a compelling interest, the Directive is not narrowly tailored to serve that interest.

[….]

Accordingly, we reverse the district court, instruct the district court to employ strict scrutiny review to its analysis of the Directive, and preliminarily enjoin the State from imposing attendance limitations on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity. The district court may modify this preliminary injunctive relief, consistent with this opinion and general equitable principles. See Winter, 555 U.S. at 20. We encourage the district court to act expeditiously in connection with any such modification. (emphasis ours)

In short, the Ninth Circuit said that based on the ruling in the Diocese case, we now have to deal with new Supreme Court ruling and are reversing ourselves and ordering the District Court to work to issue an injunction in the Calvary Chapel case which would prevent the State from keeping the limit of worshipers at 25 people, while casinos and other venues were capped at a much higher rate for patrons.


We find these shifts and twists to be very interesting.

While we initially understood the broad based restrictions, as time went by and data was accrued, it was found that churches were seldom the contact point for infection of COVID-19.

There was no good science that said that houses of worship should be treated differently than other establishments. Nevada Governor Sisolak was going on his “feelings” rather than the science.

The same lack of scientific backing is showing up in New York City, where Governor Cuomo’s edicts are killing restaurant and bar businesses:

The restaurant was one of nine open along a two-block stretch of Greenwich between Sixth and Seventh Avenues, each trying to navigate Gov. Andrew Cuomo’s edict, set in September, requiring New York City restaurants to operate at only 25 percent indoor capacity. Last week he took it even further: As of December 14 and until further notice, there will be no indoor dining permitted whatsoever. His reasoning? With COVID-19 hospitalization rates rising, any potential source of transmission must be eliminated.

This would appear not to be very educated guesswork. The latest transmission data show that 74 percent of new COVID-19 cases come from private in-home gatherings, and only 1.3 percent from bars and restaurants. Seeing as they cannot (yet) prevent individuals from being inside their own homes, officials instead press on with a series of decisions that have battered the restaurant industry since March, when eateries were first ordered to close. At that time, establishments got creative: They pivoted to takeout, they sold cocktails on the street, anything to keep some money coming in until they could reopen. Such tactics were not enough. As reported by Eater NYC, more than 1,000 restaurants permanently closed between March and November.

Out in California, the Health Secretary admitted the State wasn’t acting on the science either:

This week a Los Angeles County judge ruled that a local ban on outdoor dining at restaurants, ostensibly aimed at reducing transmission of the COVID-19 virus, was “not grounded in science, evidence, or logic.” Around the same time, California Health and Human Services Secretary Mark Ghaly admitted that the same thing is true of a state ban on outdoor dining that currently applies to all of Southern California, including Los Angeles County. Ghaly said that ban, which is one of many restrictions that are triggered when a region’s available ICU capacity drops below 15 percent, is “not a comment on the relative safety of outdoor dining” but is instead aimed at discouraging Californians from leaving home.

“The decision to include, among other sectors, outdoor dining and limiting that, turning to restaurants to deliver and provide takeout options instead, really has to do with the goal of trying to keep people at home,” Ghaly said during a briefing on Tuesday. He noted that “we have worked hard with that industry to create safer ways for outdoor dining to happen.”

[….]

Ghaly was responding to a reporter who asked whether there are “any data” to support a ban on outdoor dining, such as evidence of outbreaks linked to that specific setting. His answer implicitly conceded that there are no such data. The ban, he said, is based not on a determination that outdoor dining is especially dangerous but on a desire to keep people from leaving their homes.

It boggles the mind that government is not acting on the science of the issue. It is as if they feel they have to do something rather then the right thing.


And then there is Taiwan:

Taiwanese authorities have slapped a $3,500 fine on a man who broke quarantine regulations for just eight seconds.

The man, a migrant worker from the Philippines, was quarantining in a hotel in Kaohsiung City when he briefly stepped out of his room into the hallway, the city’s Department of Health told Taiwan’s official Central News Agency (CNA).

The man was caught on CCTV by hotel staff, who contacted the Department of Health, CNA reported. The department fined him 100,000 Taiwan dollars — around $3,500.

Under Taiwan’s quarantine rules people are not allowed to leave their rooms, no matter for how long.

The government has taken over hotels and require people who have been infected with the virus to quarantine in those hotels. The government there has also initiated required contact tracing which is mandatory via apps and programs on smart watches, tablets, cell phones, etc.

That type of mandatory tracking and tracing would never work here in the US except through voluntary compliance, but it is interesting to note that Taiwan’s aggressive approach seems to be productive:

The island of 23 million people has recorded just 716 coronavirus cases and seven deaths, according to data from Johns Hopkins University.


The bottom line is that we still have a long way to go on this thing, and governments need to realize that restrictions and mandates should be based on science, and not “opinions” and “feelings.”



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