[db48x]

It was arbitrary because small hardware stores had to close, while big ones could stay open. Also, because in most states someone in the governor’s office just went down a random list of professions or business types and decided on the spot whether to shut them down or not. That’s the very definition of arbitrary and capricious. It also fails the rational basis test, since the government hadn’t even come up with a rationale for why certain businesses have to close while others can stay open. Or why a Walmart could have a 500 people in it, while churches were limited to 10 people at a time (regardless of the size of the church’s building, even), etc.

[triceratops]

I didn't know about small hardware stores being forced to close. That's the arbitrary part then. If it was a question of space, they should've been allowed to continue business with curbside pickups.

Religion and community are important. But congregating inside a church building is not something that needs to be prioritized during a pandemic. Schools and daycares first.

[db48x]

> But congregating inside a church building is not something that needs to be prioritized during a pandemic. Schools and daycares first.

Not everyone puts priorities in that order. For many people, religion is much, much more important than daycare.

Plus, any order which treats businesses differently is going to be arbitrary. If you can go to a school but not a bar, then that is arbitrary.

[triceratops]

> If you can go to a school but not a bar, then that is arbitrary.

It literally is not. I don't think you understand what "arbitrary" means. It's not "I don't see the difference".

> For many people, religion is much, much more important than daycare.

So have the service in the parking lot of the church. Or on an open field, the way JC used to preach. Not having daycare is far more disruptive to far more people objectively. Way more people go to school and daycare every day, than go to church. Way more people depend on having a school or daycare to send their kids to, than go to church.

[db48x]

> I don't think you understand what "arbitrary" means. It's not "I don't see the difference".

Arbitrary here means that the rule wasn’t decided rationally. The government must typically establish a “rational basis” for any rule that they want to impose on people.

It is commonly understood that being indoors with a lot of people increases the risk of transmitting a virus between those people. The risk is understood to go up when more people are present, but it is also higher when the building is smaller than when it is larger.

Thus, a rational basis for the maximum occupancy of a building during a pandemic would be based on the number of people per square foot. A rule such as “1 person per 100 square feet” treats both large and small groups fairly, as well as treating large and small buildings fairly.

When we look at specific rules that were actually in place during the pandemic, we often find that there was no such rational basis. The rules were instead arbitrary. In NYC, churches were limited to a flat 10 people in the building at any one time, regardless of the size of the church building. This limits a large church more than a small one, and thus the rule is arbitrary. It would have been no more arbitrary if they had rolled dice to pick the number.

Similarly, the same rule in NYC did not apply to big–box hardware stores. A Home Depot could have hundreds of people in it all the time! No matter how important hardware stores are, this is an arbitrary distinction. There is no rational basis under which the virus is dangerous to a group of 11 people who are in a church, but not to a group of 11 people who are in a Home Depot. The relative importance of churches and Home Depots is not important. What is important is that the difference in how the rule applied to them was arbitrary.

[triceratops]

> The relative importance of churches and Home Depots is not important.

It absolutely is. The risk between churchgoing and Home Depot shopping, or going to school vs a bar may be equivalent, if we accept your analysis. But when taking risks, we also consider benefit. Risk for little to no benefit is best not taken. Risk for benefit may be worth taking, depending on how much benefit. If you can't accept this basic principle, there's no point in continuing this discussion further.

Education/childcare and having a habitable home are more important, objectively, than getting drinks or worshipping in-person inside of a building. Safe alternatives for the latter existed - drinking beers on your porch, or having church services in a field.

[db48x]

Not everyone judges the importance of things the same way. If it is ok to force churches to meet outside (and many churches did), why not force Home Depot to move their goods outside to sell?

> Risk for benefit may be worth taking, depending on how much benefit.

This is true. We each judge both the level of risk of each action we take, and the amount of benefit we gain from it. It is an _individual_ decision whether or not to go into a building, based on our _individual_ level of risk tolerance and our _individual_ benefit from whatever is in the building.

As a result, we long ago decided that if the government wants to step in and ban something that is risky, it must always have a rational basis on which that level of risk is determined. This prevents the government’s decisions from being arbitrary, and from favoring one party or group over others. (There are other requirements as well.)

For example, at some point we decided that crowded buildings were too large a fire risk. The government decided to allow the fire department to regulate the maximum number of people that could occupy every room of every building. In order to prevent this from being arbitrary, the fire department must base their determination on the actual fire risk: the materials the building is made from, the rate at which fire can spread in those materials, the number and size of the exits from the building, etc. The purpose of the building doesn’t matter: a church with 10,000 square feet and fire doors gets exactly the same maximum occupancy as a store with 10,000 square feet and fire doors (all else being equal; a real store would probably get dinged for having a bunch of additional flammable material in it).

It doesn’t matter that some buildings are used for frivolous purposes like entertainment while other are used for serious business. The fire doesn’t care about that, so neither can the fire department. This protects everybody against corruption and abuse of authority. Suppose the Fire Marshall was a crazy Fundamentalist, and arbitrarily decided that your bar should have a maximum occupancy of 2? You’d be out of business, and quite angry. By the same token, suppose the Fire Marshall was anti–religion, and arbitrarily decided that your church should have a maximum occupancy of 2? Same result. The rational basis rule is intended to protect us all from oppression at the hands of our neighbors, even when we have differing ideologies.

A virus doesn’t take into account the importance of the building when it infects people, and therefore pandemic restrictions on occupancy cannot take that into account either.

[themitigating]

Then why?

[db48x]

Then why what? Can you elaborate a bit?

[themitigating]

Sorry, why would he do this? If he wasn't doing it thinking it would help then what?

[db48x]

I’m not sure which person you are referring to, but it doesn’t matter if someone thought it would help. That’s not sufficient.

The rules vary somewhat from state to state, but in general a government order must be narrowly tailored to serve a legitimate government interest, there must be a rational basis for how the order will actually serve that interest, and it must not be arbitrary or capricious. It has to have all three or it’s out. Notably, “I thought it would help” isn’t quite on the list.

If you can explain why something might help, then that could form your argument for the rational basis test (although it would be better if you could explain how it _will_ help, rather than how it _might_ help). But the order had better meet all the other requirements as well.

There are often other requirements as well. The agency writing the order must have the explicit authority to do so. Some types of orders are limited ahead of time by legislation. For example, many states have a written maximum amount of time that any order based on a state of emergency can last. Etc, etc.