vox--2020-12-02--Religious conservatives have won a revolutionary victory in the Supreme Court

For the past six years , the Supreme Court ’ s right flank has wanted to revolutionize the law governing so-called “ religious liberty ” cases , in which a plaintiff who objects to following a particular law on religious grounds seeks an exemption from that law .
Late on Thanksgiving eve , in a decision handed down while much of the country was already asleep , the Court made this vision a reality .
Roman Catholic Diocese of Brooklyn v. Cuomo , a decision allowing some houses of worship to operate in defiance of New York state ’ s @ @ @ @ @ @ @ Covid-19 , is one of the two most significant religion cases of the past 30 years , and may prove to be one of the most important religion decisions in the Court ’ s history .
New York state limited attendance at religious services in areas with coronavirus outbreaks to 10 people in areas with the most severe outbreaks , and to 25 people in areas where the state is concerned that a severe outbreak could occur .
In a 5-4 vote , the Supreme Court held that the state may not enforce @ @ @ @ @ @ @ a sea change in the Court ’ s approach to religious objectors , and it is an early sign of the significance of the late liberal Justice Ruth Bader Ginsburg ’ s replacement with conservative Justice Amy Coney Barrett .
Under the old rules , religious objectors typically could not seek exemptions from the law if granting them an exemption could harm people who do not share their faith .
And the old rules were much more concerned with preserving equality between secular and religious individuals than with giving special advantages to people @ @ @ @ @ @ @ , for example , the Court was primarily concerned with ensuring that religious business owners did not obtain legal exemptions that would give them a leg up over their competitors .
As the Supreme Court held in United States v. Lee ( 1982 ) , “ when followers of a particular sect enter into commercial activity as a matter of choice , the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that @ @ @ @ @ @ @ to dismantle decisions like Lee in Burwell v. Hobby Lobby ( 2014 ) , which permitted private businesses to refuse to include birth control coverage in its employees ’ health plan despite a federal regulation requiring these businesses to do so .
Just as significantly , Hobby Lobby established a strong presumption that when a religious objector seeks an exemption from a federal law , the objector will get that exemption barring unusual circumstances .
Yet , for reasons explained below , Hobby Lobby only benefited religious objectors who sought exemptions from a @ @ @ @ @ @ @ with considerable force against religious objectors , even after Hobby Lobby .
The practical effect of Roman Catholic Diocese is that it extends the Hobby Lobby regime to a wide range of cases involving religious objections to state law .
There are still technical differences between the law governing plaintiffs who seek exemptions from a federal policy and those who seek to avoid state law , but the practical differences are now thin or even potentially nonexistent .
To be sure , Roman Catholic Diocese involves actual houses of worship that seek an @ @ @ @ @ @ @ argument for a “ religious liberty ” exemption is stronger in this case than it was in Hobby Lobby , which involved for-profit businesses .
But the majority opinion in Roman Catholic Diocese is written fairly broadly — broadly enough that the case is likely to have sweeping implications for for-profit businesses and other , similar institutions seeking a religious exemption from the law .
The implications of this doctrinal revolution are profound .
Among other things , the Court is currently weighing whether religious objectors have a right to defy laws barring @ @ @ @ @ @ @ could potentially give religious conservatives a right to engage in gender discrimination , or to violate a bevy of other laws .
And , as Roman Catholic Diocese involves a challenge to state rules seeking to prevent the spread of a deadly disease , religious objectors may even prevail when their claims could endanger human life .
Although the old regime was less favorable to certain religious objectors than decisions like Hobby Lobby and Roman Catholic Diocese , the Court was often fairly protective of religious liberty plaintiffs prior to Hobby Lobby .
@ @ @ @ @ @ @ seek an exemption that , in Justice Ginsburg ’ s words , would “ detrimentally affect others who do not share [ the objector ’ s ] belief , ” such exemptions were often granted by federal courts .
The prior regime began with Sherbert v. Verner ( 1963 ) , a seminal decision holding that the Constitution limits the government ’ s ability to enforce laws that impose a “ substantial infringement ” on someone ’ s religious beliefs .
Sherbert also declared that such an infringement may only be “ justified @ @ @ @ @ @ @ the regulation of a subject within the State ’ s constitutional power to regulate.
’ ” The Court ’ s use of the three words “ compelling state interest ” sowed considerable confusion into religious liberty doctrine .
Typically , when the Supreme Court uses the words “ compelling interest , ” it signals that the Constitution applies the highest possible safeguards against a particular kind of government action .
Laws that discriminate on the basis of race , for example , must overcome a “ compelling interest ” test .
Lawyers refer @ @ @ @ @ @ @ strict scrutiny.
” Under strict scrutiny , a law can not be enforced unless it uses the “ least restrictive means ” to advance a “ compelling governmental interest.
” Most laws that are subjected to strict scrutiny are struck down .
Yet , while the Supreme Court used the loaded words “ compelling state interest ” in its Sherbert opinion , empirical data shows that the judiciary applied something far less rigorous than strict scrutiny in cases involving religious objections — so religious objectors typically lost their cases under the Sherbert regime @ @ @ @ @ @ @ , now president of the University of Virginia , found that federal courts of appeals heard 97 free exercise of religion cases applying the “ compelling interest ” test between 1980 and 1990 , and they rejected 85 of these cases .
A similar study by UCLA law professor Adam Winkler looked at cases between 1990 and 2003 .
Winkler found that federal courts upheld 59 percent of “ religious liberty burdens ” during that period .
By contrast , federal courts applying the compelling interest test upheld only 22 percent of free @ @ @ @ @ @ @ that engaged in discrimination on disfavored grounds such as race .
Courts during the periods studied by Ryan and Winkler , in other words , often used the rhetoric of strict scrutiny .
But they treated cases brought by religious objectors very differently than cases that applied full-bore strict scrutiny .
Religious objectors typically lost their cases during these periods , while victims of race discrimination or other such activity were far more likely to prevail .
The Supreme Court , moreover , often encouraged lower courts to treat religious liberty cases with @ @ @ @ @ @ @ as the justices maintained that Sherbert was still good law .
The Court ’ s 1982 decision in Lee , holding that business owners are broadly prohibited from seeking religious exemptions for their business , for example , is very much at odds with the Court ’ s approach to cases where strict scrutiny applies .
Then , in Employment Division v. Smith ( 1990 ) , the Supreme Court appeared to abandon Sherbert altogether .
“ To make an individual ’ s obligation to obey such a law contingent upon the law @ @ @ @ @ @ @ , except where the State ’ s interest is ‘ compelling , ’ ” Justice Antonin Scalia wrote for the Court in Smith , is “ permitting him , by virtue of his beliefs , ‘ to become a law unto himself.
’ ” Such an outcome , according to Scalia , “ contradicts both constitutional tradition and common sense.
” Under the new rule announced in Smith , a religious objector must follow “ neutral law [ s ] of general applicability.
” Thus , so long as a law applies equally @ @ @ @ @ @ @ religious objectors can not seek an exemption under Smith .
Smith ’ s effective decision to overrule Sherbert , however , triggered a bipartisan backlash from lawmakers who believed it did too much to limit religious liberties .
Congress enacted the Religious Freedom Restoration Act of 1993 ( RFRA ) , which sought to “ restore the compelling interest test as set forth in Sherbert ” and one other related case .
RFRA , however , only applies to the federal government .
Smith ’ s permissive rule still allowed the 50 states @ @ @ @ @ @ @ general applicability ” against religious objectors .
After RFRA , but before Hobby Lobby , states had a broad power to enforce their laws against religious objectors , so long as those laws did not single out people of faith for inferior treatment .
The federal government , by contrast , had to comply with “ the compelling interest test as set forth in Sherbert , ” although that test , as Ryan and Winkler ’ s research demonstrated , was less rigorous than full-bore strict scrutiny .
Thus , under RFRA , @ @ @ @ @ @ @ the federal government would fail .
Hobby Lobby held that two businesses , whose owners object on religious grounds to certain forms of birth control , could refuse to cover those forms of contraception in their employee health plans , even though a federal regulation required employers to provide such coverage .
This decision was a doctrinal earthquake .
As Justice Ginsburg explained in dissent , until Hobby Lobby , “ no decision of this Court recognized a for-profit corporation ’ s qualification for a religious exemption from a generally applicable law , @ @ @ @ @ @ @ RFRA.
” Hobby Lobby was also significant for another reason .
Rather than applying the watered-down version of the compelling interest test required by Sherbert , Hobby Lobby applied the full force of strict scrutiny to the federal birth control regulation — a test that , as Justice Samuel Alito noted in his majority opinion , is “ exceptionally demanding.
” Thus , Hobby Lobby effectively abandoned Lee ’ s holding that businesses generally must comply with the law , at least with respect to federal laws .
It also held that plaintiffs @ @ @ @ @ @ @ benefit from the strong version of strict scrutiny applied to race discrimination cases — not the less rigorous test created by Sherbert .
Because Hobby Lobby was an RFRA case , however , its holding only applied to federal laws .
After Hobby Lobby , religious liberty cases involving state laws remained subject to the permissive test announced in Smith .
Roman Catholic Diocese transforms Smith into little more than an empty husk The holding of Smith is that the state may apply a “ neutral law of general applicability ” to a @ @ @ @ @ @ @ out people of faith for lesser treatment than secular individuals are suspect under Smith .
The Court ’ s opinion in Roman Catholic Diocese upends this balance by defining what counts as a “ neutral law of general applicability ” so narrowly that it is virtually meaningless .
The punchline is that , with few exceptions , the Hobby Lobby rule will apply equally to state and federal laws .
Nearly any law could be unenforceable against religious objectors , unless that law survives strict scrutiny .
The New York state rules at @ @ @ @ @ @ @ complicated regime the state uses to prevent the spread of Covid-19 .
New York classifies areas with an elevated risk of coronavirus transmission as “ yellow , ” “ orange , ” or “ red ” zones .
Houses of worship in orange zones may only admit a maximum of 25 people , while places of worship in red zones may only admit up to 10 people .
While these restrictions are quite severe , they are actually less harsh than the restrictions imposed on secular businesses that are similar in character to @ @ @ @ @ @ @ court that upheld New York ’ s restrictions explained , “ public gatherings with scheduled starting and ending times such as public lectures , concerts or theatrical performances ” must “ remain closed entirely ” in the relevant zones .
Thus , the state effectively banned all public gatherings where large numbers of people gather in auditorium-like settings .
It then gave a special exemption to houses of worship that allowed them to have small , limited gatherings .
Whatever you think of that policy , it does not single out places of @ @ @ @ @ @ @ it does the opposite .
Nevertheless , a majority of the Supreme Court struck down New York ’ s headcount limits on houses of worship because the state ’ s rules treat those institutions less favorably than businesses that do not involve public gatherings in auditorium-like settings .
“ In a red zone , while a synagogue or church may not admit more than 10 persons , ” a majority of the justices explained in an unsigned opinion , “ businesses categorized as ‘ essential ’ may admit as many people as they @ @ @ @ @ @ @ examples of “ essential ” businesses , including “ acupuncture facilities , camp grounds , [ and ] garages.
” Yet , while it is true that garages and acupuncturists are subject to different rules than churches , the reasons are hardly arbitrary .
As Justice Stephen Breyer writes in dissent , “ members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk , sing , cough , or breathe near each other.
@ @ @ @ @ @ @ not gather in an acupuncture facility for hours at a time and sing .
But they do engage in such potentially dangerous activity in churches and many other houses of worship .
So it makes sense that places of worship should be treated differently than businesses that bear little , if any , resemblance to those places of worship .
The point is this : Justice Breyer ’ s dissent suggests that a state law is a “ neutral law of general applicability ” so long as that law treats religious institutions the @ @ @ @ @ @ @ The majority opinion , by contrast , suggests that a law is suspect if a court can find any example of a secular institution that is treated differently than a religious institution .
Although Roman Catholic Diocese is a case about houses of worship , the majority ’ s reasoning has profound implications for other institutions that seek religious exemptions , including for-profit businesses .
Consider , for example , Justice Alito ’ s dissent from the Supreme Court ’ s decision not to hear Stormans v. Wiesman ( 2016 ) .
Stormans @ @ @ @ @ @ @ pharmacies to “ deliver lawfully prescribed drugs or devices to patients.
” Pharmacy owners who object to certain forms of birth control on religious grounds sought an exemption from this regulation , claiming they should have the right to refuse to dispense medications that they find religiously objectionable .
Though Washington ’ s regulation is neutral and generally applicable on its face — it ordinarily requires all pharmacies to deliver all lawfully prescribed drugs , regardless of whether the pharmacy owners are religious — Alito argued that the law is not neutral because @ @ @ @ @ @ @ pharmacist , for example , could refuse to dispense a prescription if it does not accept the patient ’ s insurance .
Or if the prescription might be fraudulent .
Or if the patient was already taking another drug that could cause negative health effects if mixed with the new prescription .
Alito ’ s Stormans opinion , in other words , suggests that Washington had to make a devilish choice .
Either the state had to give broad exemptions from its pharmacy regulation to religious objectors , or it might have to @ @ @ @ @ @ @ even to endanger the health of their customers .
Given such a choice , it ’ s hard to imagine that any state would refuse to provide an expansive religious exemption .
Roman Catholic Diocese effectively writes the rule that Alito advocated in Stormans into the law , and the implications of this decision are likely to be profound .
It means that , when someone objects to a law on religious grounds , they will typically be exempt from the law unless the law survives strict scrutiny , because it is very @ @ @ @ @ @ @ the most unobjectionable laws .
A state ’ s ban on murder , for example , may have an exemption for people who kill in self-defense .
State bans on animal cruelty typically permit livestock to be slaughtered for food .
Laws banning individuals from possessing machine guns still permit members of the military to carry such weapons as part of their service .
The tax code is absolutely riddled with provisions allowing people not to pay some part of their federal taxes if , for example , they have a mortgage or @ @ @ @ @ @ @ mean that the Supreme Court is likely to permit religious objectors to kill ?
Or to refuse to pay taxes ?
Or to allow them to torture animals ( provided that the state ’ s ban on animal cruelty doesn ’ t single out people of faith for inferior treatment ) ?
Most likely not .
Among other things , such laws would still be enforceable so long as they survive strict scrutiny — meaning that the law uses the “ least restrictive means ” to advance a “ compelling governmental interest.
” @ @ @ @ @ @ @ Catholic Diocese suggests that any law is subject to strict scrutiny if a religious objector can point to any exemption to that law .
And , as Winkler ’ s research shows , the overwhelming majority of laws subject to full-bore strict scrutiny fail that test .

For the past six years, the Supreme Court’s right flank has wanted to revolutionize the law governing so-called “religious liberty” cases, in which a plaintiff who objects to following a particular law on religious grounds seeks an exemption from that law.
Late on Thanksgiving eve, in a decision handed down while much of the country was already asleep, the Court made this vision a reality. Roman Catholic Diocese of Brooklyn v. Cuomo, a decision allowing some houses of worship to operate in defiance of New York state’s rules seeking to limit the spread of Covid-19, is one of the two most significant religion cases of the past 30 years, and may prove to be one of the most important religion decisions in the Court’s history.
New York state limited attendance at religious services in areas with coronavirus outbreaks to 10 people in areas with the most severe outbreaks, and to 25 people in areas where the state is concerned that a severe outbreak could occur. In a 5-4 vote, the Supreme Court held that the state may not enforce these restrictions.
Roman Catholic Diocese marks a sea change in the Court’s approach to religious objectors, and it is an early sign of the significance of the late liberal Justice Ruth Bader Ginsburg’s replacement with conservative Justice Amy Coney Barrett.
Under the old rules, religious objectors typically could not seek exemptions from the law if granting them an exemption could harm people who do not share their faith. And the old rules were much more concerned with preserving equality between secular and religious individuals than with giving special advantages to people of faith. In the business context, for example, the Court was primarily concerned with ensuring that religious business owners did not obtain legal exemptions that would give them a leg up over their competitors.
As the Supreme Court held in United States v. Lee (1982), “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
But the Supreme Court started to dismantle decisions like Lee in Burwell v. Hobby Lobby (2014), which permitted private businesses to refuse to include birth control coverage in its employees’ health plan despite a federal regulation requiring these businesses to do so. Just as significantly, Hobby Lobby established a strong presumption that when a religious objector seeks an exemption from a federal law, the objector will get that exemption barring unusual circumstances.
Yet, for reasons explained below, Hobby Lobby only benefited religious objectors who sought exemptions from a federal law. State law still applied with considerable force against religious objectors, even after Hobby Lobby.
The practical effect of Roman Catholic Diocese is that it extends the Hobby Lobby regime to a wide range of cases involving religious objections to state law. There are still technical differences between the law governing plaintiffs who seek exemptions from a federal policy and those who seek to avoid state law, but the practical differences are now thin or even potentially nonexistent.
To be sure, Roman Catholic Diocese involves actual houses of worship that seek an exemption from legal restrictions, so the argument for a “religious liberty” exemption is stronger in this case than it was in Hobby Lobby, which involved for-profit businesses. But the majority opinion in Roman Catholic Diocese is written fairly broadly — broadly enough that the case is likely to have sweeping implications for for-profit businesses and other, similar institutions seeking a religious exemption from the law.
The implications of this doctrinal revolution are profound. Among other things, the Court is currently weighing whether religious objectors have a right to defy laws barring discrimination against LGBTQ individuals. Subsequent cases could potentially give religious conservatives a right to engage in gender discrimination, or to violate a bevy of other laws.
And, as Roman Catholic Diocese involves a challenge to state rules seeking to prevent the spread of a deadly disease, religious objectors may even prevail when their claims could endanger human life.
“Religious liberty” before Hobby Lobby, briefly explained
Although the old regime was less favorable to certain religious objectors than decisions like Hobby Lobby and Roman Catholic Diocese, the Court was often fairly protective of religious liberty plaintiffs prior to Hobby Lobby. So long as those objectors did not seek an exemption that, in Justice Ginsburg’s words, would “detrimentally affect others who do not share [the objector’s] belief,” such exemptions were often granted by federal courts.
The prior regime began with Sherbert v. Verner (1963), a seminal decision holding that the Constitution limits the government’s ability to enforce laws that impose a “substantial infringement” on someone’s religious beliefs. Sherbert also declared that such an infringement may only be “justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’”
The Court’s use of the three words “compelling state interest” sowed considerable confusion into religious liberty doctrine. Typically, when the Supreme Court uses the words “compelling interest,” it signals that the Constitution applies the highest possible safeguards against a particular kind of government action. Laws that discriminate on the basis of race, for example, must overcome a “compelling interest” test.
Lawyers refer to this highly rigorous test as “strict scrutiny.” Under strict scrutiny, a law cannot be enforced unless it uses the “least restrictive means” to advance a “compelling governmental interest.” Most laws that are subjected to strict scrutiny are struck down.
Yet, while the Supreme Court used the loaded words “compelling state interest” in its Sherbert opinion, empirical data shows that the judiciary applied something far less rigorous than strict scrutiny in cases involving religious objections — so religious objectors typically lost their cases under the Sherbert regime.
A 1992 study by James Ryan, now president of the University of Virginia, found that federal courts of appeals heard 97 free exercise of religion cases applying the “compelling interest” test between 1980 and 1990, and they rejected 85 of these cases. A similar study by UCLA law professor Adam Winkler looked at cases between 1990 and 2003. Winkler found that federal courts upheld 59 percent of “religious liberty burdens” during that period. By contrast, federal courts applying the compelling interest test upheld only 22 percent of free speech restrictions and 27 percent of laws that engaged in discrimination on disfavored grounds such as race.
Courts during the periods studied by Ryan and Winkler, in other words, often used the rhetoric of strict scrutiny. But they treated cases brought by religious objectors very differently than cases that applied full-bore strict scrutiny. Religious objectors typically lost their cases during these periods, while victims of race discrimination or other such activity were far more likely to prevail.
The Supreme Court, moreover, often encouraged lower courts to treat religious liberty cases with a fair amount of skepticism, even as the justices maintained that Sherbert was still good law. The Court’s 1982 decision in Lee, holding that business owners are broadly prohibited from seeking religious exemptions for their business, for example, is very much at odds with the Court’s approach to cases where strict scrutiny applies.
Then, in Employment Division v. Smith (1990), the Supreme Court appeared to abandon Sherbert altogether. “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling,’” Justice Antonin Scalia wrote for the Court in Smith, is “permitting him, by virtue of his beliefs, ‘to become a law unto himself.’” Such an outcome, according to Scalia, “contradicts both constitutional tradition and common sense.”
Under the new rule announced in Smith, a religious objector must follow “neutral law[s] of general applicability.” Thus, so long as a law applies equally to religious and secular actors, the religious objectors cannot seek an exemption under Smith.
Smith’s effective decision to overrule Sherbert, however, triggered a bipartisan backlash from lawmakers who believed it did too much to limit religious liberties. Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), which sought to “restore the compelling interest test as set forth in Sherbert” and one other related case.
RFRA, however, only applies to the federal government. Smith’s permissive rule still allowed the 50 states to enforce any “neutral law of general applicability” against religious objectors.
After RFRA, but before Hobby Lobby, states had a broad power to enforce their laws against religious objectors, so long as those laws did not single out people of faith for inferior treatment. The federal government, by contrast, had to comply with “the compelling interest test as set forth in Sherbert,” although that test, as Ryan and Winkler’s research demonstrated, was less rigorous than full-bore strict scrutiny.
Thus, under RFRA, most lawsuits brought by religious objectors against the federal government would fail.
Hobby Lobby applied full-strength strict scrutiny to federal religious liberty lawsuits
Hobby Lobby held that two businesses, whose owners object on religious grounds to certain forms of birth control, could refuse to cover those forms of contraception in their employee health plans, even though a federal regulation required employers to provide such coverage.
This decision was a doctrinal earthquake. As Justice Ginsburg explained in dissent, until Hobby Lobby, “no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”
Hobby Lobby was also significant for another reason. Rather than applying the watered-down version of the compelling interest test required by Sherbert, Hobby Lobby applied the full force of strict scrutiny to the federal birth control regulation — a test that, as Justice Samuel Alito noted in his majority opinion, is “exceptionally demanding.”
Thus, Hobby Lobby effectively abandoned Lee’s holding that businesses generally must comply with the law, at least with respect to federal laws. It also held that plaintiffs with religious objections to a federal law benefit from the strong version of strict scrutiny applied to race discrimination cases — not the less rigorous test created by Sherbert.
Because Hobby Lobby was an RFRA case, however, its holding only applied to federal laws. After Hobby Lobby, religious liberty cases involving state laws remained subject to the permissive test announced in Smith.
Roman Catholic Diocese transforms Smith into little more than an empty husk
The holding of Smith is that the state may apply a “neutral law of general applicability” to a religious objector — only laws that single out people of faith for lesser treatment than secular individuals are suspect under Smith. The Court’s opinion in Roman Catholic Diocese upends this balance by defining what counts as a “neutral law of general applicability” so narrowly that it is virtually meaningless.
The punchline is that, with few exceptions, the Hobby Lobby rule will apply equally to state and federal laws. Nearly any law could be unenforceable against religious objectors, unless that law survives strict scrutiny.
The New York state rules at issue in Roman Catholic Diocese involve a complicated regime the state uses to prevent the spread of Covid-19. New York classifies areas with an elevated risk of coronavirus transmission as “yellow,” “orange,” or “red” zones. Houses of worship in orange zones may only admit a maximum of 25 people, while places of worship in red zones may only admit up to 10 people.
While these restrictions are quite severe, they are actually less harsh than the restrictions imposed on secular businesses that are similar in character to places of worship. As a lower court that upheld New York’s restrictions explained, “public gatherings with scheduled starting and ending times such as public lectures, concerts or theatrical performances” must “remain closed entirely” in the relevant zones.
Thus, the state effectively banned all public gatherings where large numbers of people gather in auditorium-like settings. It then gave a special exemption to houses of worship that allowed them to have small, limited gatherings. Whatever you think of that policy, it does not single out places of worship for inferior treatment. Indeed, it does the opposite.
Nevertheless, a majority of the Supreme Court struck down New York’s headcount limits on houses of worship because the state’s rules treat those institutions less favorably than businesses that do not involve public gatherings in auditorium-like settings.
“In a red zone, while a synagogue or church may not admit more than 10 persons,” a majority of the justices explained in an unsigned opinion, “businesses categorized as ‘essential’ may admit as many people as they wish.” The opinion then lists several examples of “essential” businesses, including “acupuncture facilities, camp grounds, [and] garages.”
Yet, while it is true that garages and acupuncturists are subject to different rules than churches, the reasons are hardly arbitrary. As Justice Stephen Breyer writes in dissent, “members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk, sing, cough, or breathe near each other.”
Large groups of people typically do not gather in an acupuncture facility for hours at a time and sing. But they do engage in such potentially dangerous activity in churches and many other houses of worship. So it makes sense that places of worship should be treated differently than businesses that bear little, if any, resemblance to those places of worship.
The point is this: Justice Breyer’s dissent suggests that a state law is a “neutral law of general applicability” so long as that law treats religious institutions the same way as similar secular institutions. The majority opinion, by contrast, suggests that a law is suspect if a court can find any example of a secular institution that is treated differently than a religious institution.
Although Roman Catholic Diocese is a case about houses of worship, the majority’s reasoning has profound implications for other institutions that seek religious exemptions, including for-profit businesses. Consider, for example, Justice Alito’s dissent from the Supreme Court’s decision not to hear Stormans v. Wiesman (2016).
Stormans involved a Washington state regulation that required pharmacies to “deliver lawfully prescribed drugs or devices to patients.” Pharmacy owners who object to certain forms of birth control on religious grounds sought an exemption from this regulation, claiming they should have the right to refuse to dispense medications that they find religiously objectionable.
Though Washington’s regulation is neutral and generally applicable on its face — it ordinarily requires all pharmacies to deliver all lawfully prescribed drugs, regardless of whether the pharmacy owners are religious — Alito argued that the law is not neutral because it contained some secular exemptions. A pharmacist, for example, could refuse to dispense a prescription if it does not accept the patient’s insurance. Or if the prescription might be fraudulent. Or if the patient was already taking another drug that could cause negative health effects if mixed with the new prescription.
Alito’s Stormans opinion, in other words, suggests that Washington had to make a devilish choice. Either the state had to give broad exemptions from its pharmacy regulation to religious objectors, or it might have to force pharmacists to fill fraudulent prescriptions or even to endanger the health of their customers. Given such a choice, it’s hard to imagine that any state would refuse to provide an expansive religious exemption.
Roman Catholic Diocese effectively writes the rule that Alito advocated in Stormans into the law, and the implications of this decision are likely to be profound. It means that, when someone objects to a law on religious grounds, they will typically be exempt from the law unless the law survives strict scrutiny, because it is very easy to find secular exemptions to even the most unobjectionable laws.
A state’s ban on murder, for example, may have an exemption for people who kill in self-defense. State bans on animal cruelty typically permit livestock to be slaughtered for food. Laws banning individuals from possessing machine guns still permit members of the military to carry such weapons as part of their service. The tax code is absolutely riddled with provisions allowing people not to pay some part of their federal taxes if, for example, they have a mortgage or are raising a child.
Does this mean that the Supreme Court is likely to permit religious objectors to kill? Or to refuse to pay taxes? Or to allow them to torture animals (provided that the state’s ban on animal cruelty doesn’t single out people of faith for inferior treatment)? Most likely not. Among other things, such laws would still be enforceable so long as they survive strict scrutiny — meaning that the law uses the “least restrictive means” to advance a “compelling governmental interest.”
But the new approach announced in Roman Catholic Diocese suggests that any law is subject to strict scrutiny if a religious objector can point to any exemption to that law. And, as Winkler’s research shows, the overwhelming majority of laws subject to full-bore strict scrutiny fail that test.


vox--2020-12-02--The government’s failure to provide economic relief is killing people

When Covid-19 began spreading across the United States this spring , the federal government put in place a series of protections to help workers and families weather the economic impact .
Then , one by one , the government took them all away .
Expanded unemployment insurance , which helped keep millions of laid-off workers out of poverty , expired at the end of July .
Federal stimulus checks were issued to millions of taxpayers once , beginning in April , but never again .
The Paycheck Protection Program ( PPP ) loans meant to keep small businesses afloat expired @ @ @ @ @ @ @ those businesses faced a second surge in cases .
And it ’ s about to get a lot worse , with a host of benefits from student loan forbearance to the federal eviction moratorium set to expire at the end of December .
Many economists agree that the federal government ’ s insufficient economic protections are driving Americans — especially low-wage workers who have been hard-hit in the pandemic — further into poverty .
But something else is also becoming clear : The lack of economic safeguards for Americans is making Covid-19 worse @ @ @ @ @ @ @ a study showing that lifting state-level eviction moratoriums , which allowed landlords to once again kick out renters for nonpayment , was associated with an increase in Covid-19 infections .
Between March and September , getting rid of the bans and allowing evictions to continue led to as many as 433,700 excess Covid-19 cases and 10,700 deaths , the researchers found .
Meanwhile , the lack of relief for small-business owners is forcing many to choose between closing their doors forever or staying open during the pandemic — and contributing to transmission rates @ @ @ @ @ @ @ decisions every day , ” Lindsey Leininger , a public health educator and professor at Dartmouth ’ s Tuck School of Business , told Vox .
And with unemployment benefits running out , workers are forced to go back to unsafe occupations , even if they have underlying conditions that make them especially vulnerable to the virus .
“ We have not made it feasible for most people to safely shelter in place , ” Camara Phyllis Jones , a family physician , epidemiologist , and past president of the American Public Health @ @ @ @ @ @ @ affected by the lack of economic protection are those most impacted by Covid-19 : Black Americans , other people of color , and people living in poverty .
And as the country enters a dark winter , inaction by the Trump administration and Congress isn ’ t just hurting Americans ’ livelihoods — it ’ s costing them their lives .
The federal government gave Americans some economic relief in the spring .
Then it dried up .
Covid-19 caused unprecedented economic devastation when it first began spreading in the US earlier this @ @ @ @ @ @ @ and other businesses shuttered , unemployment reached heights unseen since the Great Depression .
In late March , more than 6 million people filed for unemployment in a single week ; before the pandemic , the highest number of initial claims in a week was about 700,000 in 1982 .
Food banks were overwhelmed with individuals and families unable to afford groceries , and the nonprofit Feeding America projected that one in six Americans — including one in four children — could experience food insecurity in 2020 .
Meanwhile , 5.6 million workers @ @ @ @ @ @ @ and April , leaving many without a way to pay for medical care during a public health crisis .
To help blunt the pandemic ’ s economic impact , Congress instituted a number of measures : a $ 600-per-week addition to unemployment benefits , an expansion of unemployment insurance to cover part-time and gig-economy workers , a stimulus check of up to $ 1,200 paid to many Americans , and PPP loans to help small businesses keep employees on the payroll .
Some state and local governments also announced eviction moratoriums , and @ @ @ @ @ @ @ its own ban through the end of the year .
The programs were far from perfect , but they helped many Americans stay afloat : Despite skyrocketing unemployment , some estimates found that poverty actually fell in April and May thanks to the availability of federal aid .
But as the virus continued to surge , that aid started to dry up .
It ’ s now been four months since expanded unemployment benefits expired , and Congress hasn ’ t approved any new relief in that time .
That ’ s hurting @ @ @ @ @ @ @ and provide for their families — especially if they previously worked in low-wage service-sector jobs that were disproportionately hard-hit in the spring and have been slow to return .
But it ’ s also hurting the country ’ s ability to fight the virus .
Small businesses are one example .
While experts don ’ t yet have a complete picture of what ’ s driving Covid-19 transmission right now , they generally agree that some of the most dangerous venues for spread are places like restaurants , bars , and gyms — @ @ @ @ @ @ @ people can ’ t wear masks and are indoors , ” as Brandon Guthrie , a professor of global health and epidemiology at the University of Washington , told Vox .
For example , one study found that people who tested positive for Covid-19 were about twice as likely to have recently eaten in a restaurant compared to those who tested negative .
However , many states and cities have been slow to shut down such businesses , even in the face of a devastating third wave this fall .
In New York @ @ @ @ @ @ @ for indoor dining while schools are closed , though Mayor Bill de Blasio has announced a plan to bring elementary school students back later in December .
In much of Florida , restaurants and bars opened at full capacity in September , despite continued spread of the virus .
Many factors ( including pressure from the Trump administration to just open everything ) have gone into state and local leaders ’ decisions about business restrictions .
But since the summer , one big factor has been the lack of federal aid to small @ @ @ @ @ @ @ if they institute shutdowns , restaurants and bars will go out of business and workers will lose jobs .
This likely factors into their decision-making .
“ You ’ ve heard governors saying that the availability of those federal funds has been important , ” Guthrie said , and they “ are really concerned about what is going to happen if those resources dry up.
” In the absence of those resources , meanwhile , individual businesses can ’ t easily decide to stay closed — even if their owners know it might @ @ @ @ @ @ @ and bars “ are not high-margin businesses even in the best of times , ” Leininger said .
Their proprietors often “ want to do right by public health , but also want to do right by their families and their workers in terms of livelihoods.
” It ’ s hard to quantify exactly how much the lack of federal support for businesses and workers has contributed to Covid-19 spread .
But clusters of infections have been linked to reopened bars and restaurants , including a Friendly ’ s in Riverhead , New @ @ @ @ @ @ @ Lansing , Michigan .
Between March and August , around one-quarter of Louisiana ’ s Covid-19 cases outside of nursing homes and prisons “ stemmed from bars and restaurants , ” the New York Times reported ; in Colorado , 9 percent of all outbreaks as of August had been traced to such venues .
“ Every time we see an outbreak that ’ s seeded in a bar or from a restaurant establishment with indoor dining , that is something that could have potentially been prevented if those settings weren ’ t @ @ @ @ @ @ @ lack of aid is forcing Americans to put themselves and others at risk It ’ s not just about supporting businesses .
Individual Americans haven ’ t gotten the help they need from their government to keep themselves safe , either .
Earlier in the year , expanded unemployment may have helped people reduce their exposure to the virus because they “ felt less pressure to have to go back into higher-risk settings ” for work , Guthrie said .
But the expiration of those benefits , along with the ongoing damage to @ @ @ @ @ @ @ , has forced many people to take any job they can get — even if that means exposing themselves and their families to the virus .
“ If you are a waitress , and you managed to get some hours at the place where you work but they ’ re not doing social distancing and they ’ re not providing PPE [ personal protective equipment ] , are you going to take the chance to quit and try to go work somewhere else ?
” asked Janelle Jones , managing director of policy @ @ @ @ @ @ @ Especially with a lack of help from the federal government , many Americans can ’ t afford to take that chance .
Others , meanwhile , have been unable to find work or pay their bills — and an increasing number face eviction from their homes .
Forty-three states and Washington , DC , passed eviction bans earlier this year , but some lasted as little as 10 weeks and many expired in the summer .
As of July , large shares of renters in many states — 58 percent in Tennessee and @ @ @ @ @ @ @ example — were at risk of being evicted , according to CNBC .
The authors of a new study found that lifting state-level eviction moratoriums , in addition to costing people their homes , also contributed to the spread of Covid-19 .
“ When people are evicted , they often move in with friends and family , and that increases your number of contacts , ” UCLA ’ s Kathryn Leifheit , one of the study ’ s co-authors , explained to CNBC .
Others may move into a shelter , also increasing @ @ @ @ @ @ @ unemployment or evictions , Black and Latinx Americans , who are less likely than white people to have the accumulated wealth to weather an economic crisis , have been disproportionately affected — likely contributing to the high rates of infection and death in many communities of color .
“ People of color are more likely to be infected because we ’ re more exposed and less protected , ” Camara Phyllis Jones , the epidemiologist , said .
The lack of economic protections is as important to understand as the lack of PPE @ @ @ @ @ @ @ you force people to enter into situations that are more dangerous because of an economic need when you could address the economic need , ” Jones said , it means “ we have prioritized some people ’ s profit over other people ’ s lives.
” The situation is about to become even more dire , since a number of programs , including the nationwide moratorium on evictions and the extension of unemployment to part-time and gig-economy workers , are slated to expire at the end of the year .
“ We ’ @ @ @ @ @ @ @ like a terror state of economic disasters , ” the Groundwork Collaborative ’ s Janelle Jones told Vox , “ and it will just get worse at the end of the year.
” Economic relief would help people support their families — and help the country control the virus Experts are clear that it doesn ’ t have to be this way .
Additional federal support for bars and restaurants would allow these businesses to shut down until it ’ s safe to reopen .
“ This is restaurant owners ’ and bar @ @ @ @ @ @ @ Leininger said .
Meanwhile , a continuation of unemployment benefits , along with paid leave and affordable health care , could help ordinary people stay safe at home and help the US control the virus , Janelle Jones said .
More direct payments like the spring stimulus checks may also be necessary : “ We can send people money , ” Janelle Jones added .
“ We know how to do it.
” After months of deadlock in which Republicans opposed more generous proposals by Democrats , Congress may be starting to move @ @ @ @ @ @ @ a bipartisan group of senators announced a $ 908 billion stimulus plan that would include $ 300 per week in additional unemployment benefits for individuals , as well as support for state and local governments and small businesses , the Washington Post reported .
But even this compromise , which leaves out additional stimulus payments to individuals and is significantly slimmer than the $ 2 trillion package sought by Democrats , will have a difficult road in a Republican-controlled Senate .
And while Congress fights it out , millions of Americans will have @ @ @ @ @ @ @ pandemic without the economic cushion needed to keep themselves and others safe .
“ It is a choice we ’ re making every day to leave millions of people this insecure and vulnerable , ” Janelle Jones said .

When Covid-19 began spreading across the United States this spring, the federal government put in place a series of protections to help workers and families weather the economic impact.
Then, one by one, the government took them all away.
Expanded unemployment insurance, which helped keep millions of laid-off workers out of poverty, expired at the end of July. Federal stimulus checks were issued to millions of taxpayers once, beginning in April, but never again. The Paycheck Protection Program (PPP) loans meant to keep small businesses afloat expired in August, even as many of those businesses faced a second surge in cases.
And it’s about to get a lot worse, with a host of benefits from student loan forbearance to the federal eviction moratorium set to expire at the end of December.
Many economists agree that the federal government’s insufficient economic protections are driving Americans — especially low-wage workers who have been hard-hit in the pandemic — further into poverty. But something else is also becoming clear: The lack of economic safeguards for Americans is making Covid-19 worse, too.
The latest evidence is a study showing that lifting state-level eviction moratoriums, which allowed landlords to once again kick out renters for nonpayment, was associated with an increase in Covid-19 infections. Between March and September, getting rid of the bans and allowing evictions to continue led to as many as 433,700 excess Covid-19 cases and 10,700 deaths, the researchers found.
Meanwhile, the lack of relief for small-business owners is forcing many to choose between closing their doors forever or staying open during the pandemic — and contributing to transmission rates. “They’re making heartbreaking decisions every day,” Lindsey Leininger, a public health educator and professor at Dartmouth’s Tuck School of Business, told Vox.
And with unemployment benefits running out, workers are forced to go back to unsafe occupations, even if they have underlying conditions that make them especially vulnerable to the virus. “We have not made it feasible for most people to safely shelter in place,” Camara Phyllis Jones, a family physician, epidemiologist, and past president of the American Public Health Association, told Vox.
Those most affected by the lack of economic protection are those most impacted by Covid-19: Black Americans, other people of color, and people living in poverty. And as the country enters a dark winter, inaction by the Trump administration and Congress isn’t just hurting Americans’ livelihoods — it’s costing them their lives.
The federal government gave Americans some economic relief in the spring. Then it dried up.
Covid-19 caused unprecedented economic devastation when it began spreading in the US earlier this year. As restaurants, hotels, and other businesses shuttered, unemployment reached heights unseen since the Great Depression. In late March, more than 6 million people filed for unemployment in a single week; before the pandemic, the highest number of initial claims in a week was about 700,000 in 1982.
Food banks were overwhelmed with individuals and families unable to afford groceries, and the nonprofit Feeding America projected that one in six Americans — including one in four children — could experience food insecurity in 2020. Meanwhile, 5.6 million workers lost their employer-provided health insurance in March and April, leaving many without a way to pay for medical care during a public health crisis.
To help blunt the pandemic’s economic impact, Congress instituted a number of measures: a $600-per-week addition to unemployment benefits, an expansion of unemployment insurance to cover part-time and gig economy workers, a stimulus check of up to $1,200 paid to many Americans, and PPP loans to help small businesses keep employees on the payroll. Some state and local governments also announced eviction moratoriums, and in September, the federal government ordered its own ban through the end of the year.
The programs were far from perfect, but they helped many Americans stay afloat: Despite skyrocketing unemployment, some estimates found that poverty actually fell in April and May thanks to the availability of federal aid.
But as the virus continued to surge, that aid started to dry up. It’s now been four months since expanded unemployment benefits expired, and Congress hasn’t approved any new relief in that time.
That’s hurting Americans’ ability to pay their bills and provide for their families — especially if they previously worked in low-wage service sector jobs that were disproportionately hard-hit in the spring and have been slow to return. But it’s also hurting the country’s ability to fight the virus.
Small businesses are one example. While experts don’t yet have a complete picture of what’s driving Covid-19 transmission right now, they generally agree that some of the most dangerous venues for spread are places like restaurants, bars, and gyms — venues “where almost by definition, people can’t wear masks and are indoors,” as Brandon Guthrie, a professor of global health and epidemiology at the University of Washington, told Vox. For example, one study found that people who tested positive for Covid-19 were about twice as likely to have recently eaten in a restaurant compared to those who tested negative.
However, many states and cities have been slow to shut down such businesses, even in the face of a devastating third wave this fall. In New York, for example, restaurants remain open for indoor dining while schools are closed, though Mayor Bill de Blasio has announced a plan to bring elementary school students back later in December. In much of Florida, restaurants and bars opened at full capacity in September, despite continued spread of the virus.
Many factors (including pressure from the Trump administration to just open everything) have gone into state and local leaders’ decisions about business restrictions. But since the summer, one big factor has been the lack of federal aid to small businesses and workers. Policymakers know that if they institute shutdowns, restaurants and bars will go out of business and workers will lose jobs. This likely factors into their decision-making. “You’ve heard governors saying that the availability of those federal funds has been important,” Guthrie said, and they “are really concerned about what is going to happen if those resources dry up.”
In the absence of those resources, meanwhile, individual businesses can’t easily decide to stay closed — even if their owners know it might be dangerous to remain open. Restaurants and bars “are not high-margin businesses even in the best of times,” Leininger said. Their proprietors often “want to do right by public health, but also want to do right by their families and their workers in terms of livelihoods.”
It’s hard to quantify exactly how much the lack of federal support for businesses and workers has contributed to Covid-19 spread. But clusters of infections have been linked to reopened bars and restaurants, including a Friendly’s in Riverhead, New York, and a brewpub in East Lansing, Michigan. Between March and August, around one-quarter of Louisiana’s Covid-19 cases outside of nursing homes and prisons “stemmed from bars and restaurants,” the New York Times reported; in Colorado, 9 percent of all outbreaks as of August had been traced to such venues.
“Every time we see an outbreak that’s seeded in a bar or from a restaurant establishment with indoor dining, that is something that could have potentially been prevented if those settings weren’t open,” Leininger said.
The lack of aid is forcing Americans to put themselves and others at risk
It’s not just about supporting businesses. Individual Americans haven’t gotten the help they need from their government to keep themselves safe, either. Earlier in the year, expanded unemployment may have helped people reduce their exposure to the virus because they “felt less pressure to have to go back into higher-risk settings” for work, Guthrie said. But the expiration of those benefits, along with the ongoing damage to the job market caused by the pandemic, has forced many people to take any job they can get — even if that means exposing themselves and their families to the virus.
“If you are a waitress, and you managed to get some hours at the place where you work but they’re not doing social distancing and they’re not providing PPE [personal protective equipment], are you going to take the chance to quit and try to go work somewhere else?” asked Janelle Jones, managing director of policy and research at the Groundwork Collaborative. Especially with a lack of help from the federal government, many Americans can’t afford to take that chance.
Others, meanwhile, have been unable to find work or pay their bills — and an increasing number face eviction from their homes. Forty-three states and Washington, DC, passed eviction bans earlier this year, but some lasted as little as 10 weeks and many expired in the summer. As of July, large shares of renters in many states — 58 percent in Tennessee and 59 percent in West Virginia, for example — were at risk of being evicted, according to CNBC.
The authors of a new study found that lifting state-level eviction moratoriums, in addition to costing people their homes, also contributed to the spread of Covid-19. “When people are evicted, they often move in with friends and family, and that increases your number of contacts,” UCLA’s Kathryn Leifheit, one of the study’s co-authors, explained to CNBC. Others may move into a shelter, also increasing their risk.
Whether it’s unemployment or evictions, Black and Latinx Americans, who are less likely than white people to have the accumulated wealth to weather an economic crisis, have been disproportionately affected, likely contributing to the high rates of infection and death in many communities of color. “People of color are more likely to be infected because we’re more exposed and less protected,” Camara Phyllis Jones, the epidemiologist, said.
The lack of economic protections is as important to understand as the lack of PPE and other safety measures. “When you force people to enter into situations that are more dangerous because of an economic need when you could address the economic need,” Jones said, it means “we have prioritized some people’s profit over other people’s lives.”
The situation is about to become even more dire, since a number of programs, including the nationwide moratorium on evictions and the extension of unemployment to part-time and gig economy workers, are slated to expire at the end of the year.
“We’re already in a situation that is like a terror state of economic disasters,” the Groundwork Collaborative’s Jones told Vox, “and it will just get worse at the end of the year.”
Economic relief would help people support their families — and help the country control the virus
Experts are clear that it doesn’t have to be this way. Additional federal support for bars and restaurants would allow these businesses to shut down until it’s safe to reopen. “This is restaurant owners’ and bar owners’ time of need,” Leininger said.
Meanwhile, a continuation of unemployment benefits, along with paid leave and affordable health care, could help ordinary people stay safe at home and help the US control the virus, Jones said. More direct payments like the spring stimulus checks may also be necessary: “We can send people money,” Janelle Jones added. “We know how to do it.”
After months of deadlock in which Republicans opposed more generous proposals by Democrats, Congress may be starting to move on the issue: On Tuesday, a bipartisan group of senators announced a $908 billion stimulus plan that would include $300 per week in additional unemployment benefits for individuals, as well as support for state and local governments and small businesses, the Washington Post reported. But even this compromise, which leaves out additional stimulus payments to individuals and is significantly slimmer than the $2 trillion package sought by Democrats, will have a difficult road in a Republican-controlled Senate.
And while Congress fights it out, millions of Americans will have to continue living and working through a pandemic without the economic cushion needed to keep themselves and others safe. “It is a choice we’re making every day to leave millions of people this insecure and vulnerable,” Jones said.


vox--2020-12-02--What happened to department stores?

What happened to department stores?

Department stores , once a symbol of the American middle class , have been declining for years , along with the shopping malls they anchor in communities across the US .
Just last year , both the high-end Barneys and the country ’ s oldest department store , Lord & Taylor , went bankrupt and announced plans to close all their locations .
Then came the coronavirus pandemic , which shocked the economy , hitting lower- and middle-income Americans the hardest by forcing them out of work and deeper into debt , with little or no relief in sight .
@ @ @ @ @ @ @ physical retail stores and kept people at home for months , giving them more reasons than ever before to shop online at e-commerce giants like Amazon or from the smaller direct-to-consumer brands whose ads follow us all around the internet .
As we near the end of 2020 , the prognosis for the American department store is grimmer than it ’ s ever been .
The reasons extend far beyond Covid-19 or even the continued rise of online shopping , and have more to do with trends in the American economy that have @ @ @ @ @ @ @ the already wealthy .
That ’ s why the decline of these retail giants is something to pay attention to .
They employ hundreds of thousands of people and occupy an outsize space in our communities ; their gradual disappearance , as well as what is replacing them , tells us something about where we ’ re headed .
The death of the department store and the American middle class The collapse of America ’ s middle class crushed department stores .
Amazon and the pandemic are the final blows .
Pop culture @ @ @ @ @ @ @ to want The death and rebirth of America ’ s department stores , in charts What one of Amazon ’ s biggest critics thinks about the future of the industry | coming Thursday How retailers track your every move in exchange for coupons and convenience | coming Friday

Department stores, once a symbol of the American middle class, have been declining for years, along with the shopping malls they anchor in communities across the US. Just last year, both the high-end Barneys and the country’s oldest department store, Lord & Taylor, went bankrupt and announced plans to close all their locations.
Then came the coronavirus pandemic, which shocked the economy, hitting lower- and middle-income Americans the hardest by forcing them out of work and deeper into debt, with little or no relief in sight. The crisis also temporarily shuttered most nonessential physical retail stores and kept people at home for months, giving them more reasons than ever before to shop online at e-commerce giants like Amazon or from the smaller direct-to-consumer brands whose ads follow us all around the internet.
As we near the end of 2020, the prognosis for the American department store is grimmer than it’s ever been. The reasons extend far beyond Covid-19 or even the continued rise of online shopping, and have more to do with trends in the American economy that have been shrinking the middle class while enriching the already wealthy. That’s why the decline of these retail giants is something to pay attention to. They employ hundreds of thousands of people and occupy an outsize space in our communities; their gradual disappearance, as well as what is replacing them, tells us something about where we’re headed.
—Samantha Oltman, editor of Recode
The collapse of America’s middle class crushed department stores. Amazon and the pandemic are the final blows.
by Jason Del Rey
by Constance Grady
by Rani Molla
by Shirin Ghaffary
by Sara Morrison


vox--2020-12-02--The death and rebirth of America’s department stores, in charts

The pandemic has been terrible for numerous industries , and department stores are no exception .
Once the main place many Americans did their clothing and other retail shopping , department stores have long been in decline , along with the malls that they anchored .
The decline of department stores , which have substantial footprints in physical real estate , is indicative of how shopping in America is continually moving online .
Americans are still buying plenty — retail sales have already risen beyond their pre-pandemic highs , according to census data — but the shopping landscape has changed @ @ @ @ @ @ @ , declining sales , and closures , as well as a variety of new businesses popping up in their place show that retail in America is in a state of rapid transition .
These trends also provide a number of clues as to where this will all land .
Death of department stores by the numbers A big challenge for department stores in recent years is the sheer overhead of the physical space they occupy .
This is part of the reason why online retailers have an edge .
They sell all the @ @ @ @ @ @ @ their real estate footprint is much smaller .
And the pandemic meant that Americans couldn ’ t go to these stores safely — or legally — exacerbating a long-term trend away from shopping in stores .
In turn , e-commerce sales surged this year .
Online retail sales jumped 32 percent in the second quarter compared to the first quarter , reaching $ 211.5 billion , according to Census Bureau data .
That ’ s 16 percent of all retail sales .
It has since modulated a bit to 14 percent as more @ @ @ @ @ @ @ but a new spate of shutdowns could reverse that .
Meanwhile , department store sales have been declining , according to data from the Census Bureau .
After sales took a dive in the spring when stay-at-home orders kept people out of stores , the sector is having trouble recovering as Covid-19 numbers are surging again this fall .
( Note that if department stores used separate establishments to fulfill their online orders , that wouldn ’ t be included in the data below , so total revenue should be higher . )
@ @ @ @ @ @ @ , with digital sales at Kohl ’ s , Nordstrom , and Macy ’ s up double digits in the second quarter of 2020 , according to Coresight Research .
But that hasn ’ t been enough to compensate for overall revenue decline .
For the publicly traded department stores , total revenue — which includes online sales — has generally been stagnant if not declining for the past decade , with a precipitous drop this year due to the pandemic .
According to earnings reported at the beginning of 2020 , annual @ @ @ @ @ @ @ Macy ’ s , Dillard ’ s , Nordstrom , and J.C. Penney .
Foot traffic is another way to look at how department stores ’ physical retail operations have declined .
Nationwide , foot traffic to major department stores is currently about half what it was last year , according to data from SafeGraph .
A new round of lockdowns could bring foot traffic back to where it was this spring : next to nothing .
As a result of these pressures , a slew of department stores filed for bankruptcy this @ @ @ @ @ @ @ Neiman Marcus , and Stage Stores this spring , followed by Century 21 , Stein Mart , and Lord & Taylor this summer .
Retailers in general have filed for bankruptcy en masse this year , according to a CB Insights report .
“ The Covid-19 pandemic has only accelerated the fall of several retailers , which have faced dwindling sales and growing debt over the past few years as consumer preferences change , ” the report states .
Even department stores that haven ’ t gone bankrupt are shuttering stores in an @ @ @ @ @ @ @ sprawling footprints .
As a result , the total number of department stores has declined precipitously in the past few years .
There are currently about 6,000 department stores in the US , according to market research firm IBISWorld , and that number is expected to decline by about another 2,000 in the next five years .
In February , even before the pandemic began to shutter businesses in the US , Macy ’ s announced it would be closing more than 20 percent of its stores .
This spring , J.C. Penney @ @ @ @ @ @ @ this year and another 50 next year — about 30 percent of its stores .
Nordstrom announced closures of its own in May .
Additionally , department stores like Macy ’ s are opting for smaller footprints as fewer people go to stores and more people shop online .
Instead of a place to buy things , the remaining physical stores are functioning as showrooms .
“ They show you the sexiest goods to stimulate demand and start you thinking , knowing you ’ re going to pull out your phone and shop @ @ @ @ @ @ @ of commercial real estate economics at Moody ’ s , told Recode .
They ’ re also experimenting with different store formats to better serve the areas they ’ re in , according to MJ Munsell , chief creative officer at architecture and design firm MG2 .
That can mean smaller stores with merchandise particular to the location , stores geared toward picking up merchandise purchased online , and stores that offer , for example , services like tailoring or makeup application .
“ The idea that you build the same store throughout @ @ @ @ @ @ @ archaic , ” she said .
The second lives of the fallen department stores The story of dying department stores is also one of new beginnings .
Half of department stores within malls could close by the end of 2021 , according to Green Street Advisors , and the average department store ranges from 100,000 to 160,000 square feet .
All these closures are going to leave behind lots of empty space and unpaid bills — retailers owe $ 52 billion in back rent — as well as the potential for new businesses @ @ @ @ @ @ @ not it ’ s viable to repurpose old department stores depends on a number of factors , including location , the building itself , and the needs of other growing businesses .
What department stores have been repurposed into falls generally into three buckets : other traditional retail space ; something entirely different like restaurants or apartments ; or — what has become the de facto replacement — warehouses or fulfillment centers for online retailers like Amazon .
Department stores located in regional malls — that is , large malls in densely populated @ @ @ @ @ @ @ being repurposed , according to Brandon Hardin , a research economist at the National Association of Realtors who worked on the report .
“ Assuming they ’ re in the right location , a significant portion could be repurposed into something more useful , ” Hardin told Recode .
Smaller malls located in less populous areas will have a harder time finding new uses .
Department store locations in city centers , especially those in historic buildings , lend themselves well to upscale apartments and offices .
Meanwhile , ones located in the @ @ @ @ @ @ @ the space feel more urban .
“ There ’ s convenience to living in the suburbs because there ’ s a lot there , but not a sense of community necessarily , ” MG2 ’ s Munsell said .
“ People are craving the notion that they can go to a space , get something to eat , exercise , meet friends — it gives a sense of place to suburban environments.
” As such , MG2 is in the process of reconceptualizing suburban malls , one in Florida and one on the @ @ @ @ @ @ @ destinations .
The plans include turning the malls and their giant parking lots into a combination of housing , entertainment , restaurants , and pedestrian-friendly green spaces , in addition to new retail space .
The National Association of Realtors ( NAR ) compiled a number of case studies about how malls and the department stores that serve as their anchor tenants have been or are already being repurposed .
According to an NAR survey in March , among 94 malls identified as formerly vacant , about a third were simply turned into @ @ @ @ @ @ @ .
A number of malls have been turned into mixed-use buildings , with much of the retail being replaced by a combination of offices , apartments , and hotel rooms .
A handful of others were turned into a wide variety of businesses , including medical offices , fitness centers , churches , and even one cricket stadium .
For example , Los Angeles ’ s Westside Pavilion — this is the iconic mall that used to house Macy ’ s and Nordstrom and was featured in the movie Clueless — has been @ @ @ @ @ @ @ The million square feet of retail space of Worcester Center Galleria in Massachusetts has been converted into 500,000 square feet of office space , 1,000 residential units , and 168 hotel rooms , as well as 350,000 feet of new retail .
And then there are warehouses and fulfillment centers .
A lot of the conditions that once made department stores in large malls viable also work well for online fulfillment centers .
They ’ re centrally located spaces large enough to hold the goods needed for large nearby populations .
Becoming distribution @ @ @ @ @ @ @ department stores — albeit one coated in a bit of irony , since the online retailers who use them are part of the reason for department stores ’ decline in the first place .
Amazon has already converted a number of former retail spaces into online facilities .
Last year , Amazon finished construction on an 855,000-square-foot fulfillment center in the place of what had once been the closed and condemned Euclid Square Mall in Ohio .
That was the second time an Amazon fulfillment store rose from the ashes of a dead @ @ @ @ @ @ @ s likely many malls and department stores will meet a similar fate .
Industrial space commands lower rent than retail , so mall owners will not be getting their previous premiums on those locations .
For now , though , anything is better than empty space .

The pandemic has been terrible for numerous industries, and department stores are no exception. Once the main place many Americans did their clothing and other retail shopping, department stores have long been in decline, along with the malls that they anchored.
The decline of department stores, which have substantial footprints in physical real estate, is indicative of how shopping in America is continually moving online. Americans are still buying plenty — retail sales have already risen beyond their pre-pandemic highs, according to census data — but the shopping landscape has changed.
A spate of department store bankruptcies, declining sales, and closures, as well as a variety of new businesses popping up in their place show that retail in America is in a state of rapid transition. These trends also provide a number of clues as to where this will all land.
Death of department stores by the numbers
A big challenge for department stores in recent years is the sheer overhead of the physical space they occupy. This is part of the reason why online retailers have an edge. They sell all the same stuff as department stores, but their real estate footprint is much smaller.
And the pandemic meant that Americans couldn’t go to these stores safely — or legally — exacerbating a long-term trend away from shopping in stores. In turn, e-commerce sales surged this year. Online retail sales jumped 32 percent in the second quarter compared to the first quarter, reaching $211.5 billion, according to Census Bureau data. That’s 16 percent of all retail sales. It has since modulated a bit to 14 percent as more businesses reopened in the third quarter, but a new spate of shutdowns could reverse that.
Meanwhile, department store sales have been declining, according to data from the Census Bureau. After sales took a dive in the spring when stay-at-home orders kept people out of stores, the sector is having trouble recovering as Covid-19 numbers are surging again this fall. (Note that if department stores used separate establishments to fulfill their online orders, that wouldn’t be included in the data below, so total revenue should be higher.)
Department stores have upped their online presence, with digital sales at Kohl’s, Nordstrom, and Macy’s up double digits in the second quarter of 2020, according to Coresight Research. But that hasn’t been enough to compensate for overall revenue decline. For the publicly traded department stores, total revenue — which includes online sales — has generally been stagnant if not declining for the past decade, with a precipitous drop this year due to the pandemic. According to earnings reported at the beginning of 2020, annual profit declined for Kohl’s, Macy’s, Dillard’s, Nordstrom, and J.C. Penney.
Foot traffic is another way to look at how department stores’ physical retail operations have declined. Nationwide, foot traffic to major department stores is currently about half what it was last year, according to data from SafeGraph. A new round of lockdowns could bring foot traffic back to where it was this spring: next to nothing.
As a result of these pressures, a slew of department stores filed for bankruptcy this year, beginning with J.C. Penney, Neiman Marcus, and Stage Stores this spring, followed by Century 21, Stein Mart, and Lord & Taylor this summer. Retailers in general have filed for bankruptcy en masse this year, according to a CB Insights report.
“The Covid-19 pandemic has only accelerated the fall of several retailers, which have faced dwindling sales and growing debt over the past few years as consumer preferences change,” the report states.
Even department stores that haven’t gone bankrupt are shuttering stores in an effort to cut costs and rightsize their sprawling footprints. As a result, the total number of department stores has declined precipitously in the past few years. There are currently about 6,000 department stores in the US, according to market research firm IBISWorld, and that number is expected to decline by about another 2,000 in the next five years.
In February, even before the pandemic began to shutter businesses in the US, Macy’s announced it would be closing more than 20 percent of its stores. This spring, J.C. Penney announced it would close nearly 200 stores this year and another 50 next year — about 30 percent of its stores. Nordstrom announced closures of its own in May.
Additionally, department stores like Macy’s are opting for smaller footprints as fewer people go to stores and more people shop online. Instead of a place to buy things, the remaining physical stores are functioning as showrooms.
“They show you the sexiest goods to stimulate demand and start you thinking, knowing you’re going to pull out your phone and shop there,” Victor Calanog, head of commercial real estate economics at Moody’s, told Recode.
They’re also experimenting with different store formats to better serve the areas they’re in, according to MJ Munsell, chief creative officer at architecture and design firm MG2. That can mean smaller stores with merchandise particular to the location, stores geared toward picking up merchandise purchased online, and stores that offer, for example, services like tailoring or makeup application.
“The idea that you build the same store throughout the country and people will come is archaic,” she said.
The second lives of the fallen department stores
The story of dying department stores is also one of new beginnings.
Half of department stores within malls could close by the end of 2021, according to Green Street Advisors, and the average department store ranges from 100,000 to 160,000 square feet. All these closures are going to leave behind lots of empty space and unpaid bills — retailers owe $52 billion in back rent — as well as the potential for new businesses to overtake the old.
Whether or not it’s viable to repurpose old department stores depends on a number of factors, including location, the building itself, and the needs of other growing businesses. What department stores have been repurposed into falls generally into three buckets: other traditional retail space; something entirely different like restaurants or apartments; or — what has become the de facto replacement — warehouses or fulfillment centers for online retailers like Amazon.
Department stores located in regional malls — that is, large malls in densely populated areas — have the best odds of being repurposed, according to Brandon Hardin, a research economist at the National Association of Realtors who worked on the report.
“Assuming they’re in the right location, a significant portion could be repurposed into something more useful,” Hardin told Recode. Smaller malls located in less populous areas will have a harder time finding new uses.
Department store locations in city centers, especially those in historic buildings, lend themselves well to upscale apartments and offices. Meanwhile, ones located in the suburbs can benefit from conversions that make the space feel more urban.
“There’s convenience to living in the suburbs because there’s a lot there, but not a sense of community necessarily,” MG2’s Munsell said. “People are craving the notion that they can go to a space, get something to eat, exercise, meet friends — it gives a sense of place to suburban environments.”
As such, MG2 is in the process of reconceptualizing suburban malls, one in Florida and one on the West Coast, to be mixed-use community destinations. The plans include turning the malls and their giant parking lots into a combination of housing, entertainment, restaurants, and pedestrian-friendly green spaces, in addition to new retail space.
The National Association of Realtors (NAR) compiled a number of case studies about how malls and the department stores that serve as their anchor tenants have been or are already being repurposed.
According to an NAR survey in March, among 94 malls identified as formerly vacant, about a third were simply turned into other types of retail stores or popups. A number of malls have been turned into mixed-use buildings, with much of the retail being replaced by a combination of offices, apartments, and hotel rooms. A handful of others were turned into a wide variety of businesses, including medical offices, fitness centers, churches, and even one cricket stadium.
For example, Los Angeles’s Westside Pavilion — this is the iconic mall that used to house Macy’s and Nordstrom and was featured in the movie Clueless — has been converted into office space for Google.
The million square feet of retail space of Worcester Center Galleria in Massachusetts has been converted into 500,000 square feet of office space, 1,000 residential units, and 168 hotel rooms, as well as 350,000 feet of new retail.
And then there are warehouses and fulfillment centers. A lot of the conditions that once made department stores in large malls viable also work well for online fulfillment centers. They’re centrally located spaces large enough to hold the goods needed for large nearby populations. Becoming distribution centers represents a productive second life for department stores — albeit one coated in a bit of irony, since the online retailers who use them are part of the reason for department stores’ decline in the first place.
Amazon has already converted a number of former retail spaces into online facilities.
Last year, Amazon finished construction on an 855,000-square-foot fulfillment center in the place of what had once been the closed and condemned Euclid Square Mall in Ohio. That was the second time an Amazon fulfillment store rose from the ashes of a dead Ohio mall.
Indeed, it’s likely many malls and department stores will meet a similar fate. Industrial space commands lower rent than retail, so mall owners will not be getting their previous premiums on those locations. For now, though, anything is better than empty space.


vox--2020-12-02--South Korea just changed a longstanding military law for the sake of BTS

Just one day after BTS made Billboard chart history ( for the nth time ) , the South Korean government made a little history of its own .
On December 1 , the National Assembly changed a longstanding law concerning compulsory military service in order to allow a brief respite for artists and entertainers who ’ ve elevated the nation ’ s global reputation — including , of course , BTS .
The law previously required all male South Korean citizens to complete about two years of military service by age 30 , meaning they had to enroll by the @ @ @ @ @ @ @ idols and other artists may defer the beginning of their service until they ’ re 30 , pushing their enrollment deadline back by two years .
The change arrives just in time to exempt the band ’ s oldest member , Kim Seok-jin ( a.k.a .
Jin ) , from having to enlist when he turns 28 on December 4 .
The timing also coincides with BTS setting a new record in the US music industry .
On November 30 , BTS became the first band in history to top the Billboard Hot @ @ @ @ @ @ @ in Korean : “ Life Goes On , ” the second chart-topping single from the group ’ s new pandemic-themed album Be .
( The first was the English-language track “ Dynamite , ” which debuted at No .
1 in August . )
The band also broke a slew of other records at the same time , including the fastest accumulation of three No .
1 songs on the Hot 100 since the Bee Gees accomplished that feat in 1978 .
Exemptions to the Korean mandated military service law already existed for @ @ @ @ @ @ @ figures , but those exemptions from active service still require those who qualify for them to complete a term of military training .
The new law allows eligible artists to defer their conscription for an additional two years , effectively giving K-pop band members like Jin and many other idols a grace period before they have to enlist .
Korea ’ s military service requirement has long loomed over the country ’ s pop idol industry , with many successful bands seeing members enlist for their service period during the height of their @ @ @ @ @ @ @ afford to lose one or two to the draft without losing momentum , but the requirement can be disruptive .
Four members of the wildly popular band EXO , for example , have had to enroll , and though they — along with many other idols — could be released from service within the next year or two , the timeline isn ’ t hard and fast , and the uncertainty of a discharge date means it ’ s not exactly easy to plan a comeback tour .
( Unfortunately , the law @ @ @ @ @ @ @ , so those idols currently serving their time probably won ’ t get a sudden reprieve . )
Media reports have framed the new legal exemption as one made for BTS specifically as a result , but it ’ s probably more accurate to say that the change is a respite for Korea itself .
As of 2019 , BTS reportedly contributed a staggering $ 4.7 billion to the national economy .
The group ’ s massive fandom famously shows its love for the band through highly organized mass shows of consumerism , @ @ @ @ @ @ @ break more records , push more sales , and land ever higher on the charts .
That mighty fandom machine has been in place for years , but it seemed to reach critical mass in 2020 , propelling BTS toward a steady string of global chart-toppers .
During a highly unusual year for entertainment , BTS has amassed a nearly unreal set of achievements — this year alone , the group broke the record for the most-viewed YouTube video in 24 hours , joined Taylor Swift as one of only two artists to @ @ @ @ @ @ @ at the top of the Billboard charts , and became the most-streamed group of 2020 on Spotify .
In Korea , BTS broke a 30-year-old record for the most music award show wins in a single year , putting the group literally in a class by itself .
Much of this success has come from a single song .
The commercial success of “ Dynamite ” alone has pumped an estimated $ 1.4 billion into the Korean economy — enough money to create roughly 8,000 new jobs .
When the band debuted the @ @ @ @ @ @ @ Hot 100 in August ( before promptly going on to repeat that feat two more times , no big deal ) , Korean president Moon Jae-in issued a public statement congratulating the band and thanking BTS for spreading hope during the Covid-19 pandemic .
The band ’ s Hot 100 achievement , Moon said , “ is a splendid feat that further raises pride in K-pop.
” It was the international popularity of BTS , particularly “ Dynamite , ” that ultimately prompted Korean lawmakers to introduce the bill , which essentially carves @ @ @ @ @ @ @ Act .
In October , ruling party member Noh Woong-rae pushed the legislation forward on behalf of the band , arguing that its members should be allowed to serve the nation in other ways to meet its service requirements .
And those who have advocated in the past for changing this law have frequently cited BTS in their arguments .
“ I think that members of BTS should also get the exemption , ” speedskater Song Kyung-taek told the New York Times in 2018 when discussing the draft .
“ When South Koreans @ @ @ @ @ @ @ to explain where we come from .
”

Just one day after BTS made Billboard chart history (for the nth time), the South Korean government made a little history of its own. On December 1, the National Assembly changed a longstanding law concerning compulsory military service in order to allow a brief respite for artists and entertainers who’ve elevated the nation’s global reputation — including, of course, BTS.
The law previously required all male South Korean citizens to complete about two years of military service by age 30, meaning they had to enroll by the time they turned 28. Now eligible idols and other artists may defer the beginning of their service until they’re 30, pushing their enrollment deadline back by two years. The change arrives just in time to exempt the band’s oldest member, Kim Seok-jin (a.k.a. Jin), from having to enlist when he turns 28 on December 4. The timing also coincides with BTS setting a new record in the US music industry.
On November 30, BTS became the first band in history to top the Billboard Hot 100 chart with a song sung primarily in Korean: “Life Goes On,” the second chart-topping single from the group’s new pandemic-themed album Be. (The first was the English-language track “Dynamite,” which debuted at No. 1 in August.) The band also broke a slew of other records at the same time, including the fastest accumulation of three No. 1 songs on the Hot 100 since the Bee Gees accomplished that feat in 1978.
Exemptions to the Korean mandated military service law already existed for athletes, entertainers, and other public figures, but those exemptions from active service still require those who qualify for them to complete a term of military training. The new law allows eligible artists to defer their conscription for an additional two years, effectively giving K-pop band members like Jin and many other idols a grace period before they have to enlist.
Korea’s military service requirement has long loomed over the country’s pop idol industry, with many successful bands seeing members enlist for their service period during the height of their success. Bands with many members can afford to lose one or two to the draft without losing momentum, but the requirement can be disruptive. Four members of the wildly popular band EXO, for example, have had to enroll, and though they — along with many other idols — could be released from service within the next year or two, the timeline isn’t hard and fast, and the uncertainty of a discharge date means it’s not exactly easy to plan a comeback tour. (Unfortunately, the law doesn’t appear to be retroactive, so those idols currently serving their time probably won’t get a sudden reprieve.)
Media reports have framed the new legal exemption as one made for BTS specifically as a result, but it’s probably more accurate to say that the change is a respite for Korea itself. As of 2019, BTS reportedly contributed a staggering $4.7 billion to the national economy. The group’s massive fandom famously shows its love for the band through highly organized mass shows of consumerism, which are aimed at helping the band break more records, push more sales, and land ever higher on the charts. That mighty fandom machine has been in place for years, but it seemed to reach critical mass in 2020, propelling BTS toward a steady string of global chart-toppers.
During a highly unusual year for entertainment, BTS has amassed a nearly unreal set of achievements — this year alone, the group broke the record for the most-viewed YouTube video in 24 hours, joined Taylor Swift as one of only two artists to simultaneously debut an album and a single at the top of the Billboard charts, and became the most-streamed group of 2020 on Spotify. In Korea, BTS broke a 30-year-old record for the most music award show wins in a single year, putting the group literally in a class by itself.
Much of this success has come from a single song. The commercial success of “Dynamite” alone has pumped an estimated $1.4 billion into the Korean economy — enough money to create roughly 8,000 new jobs. When the band debuted the song at No. 1 on the Hot 100 in August (before promptly going on to repeat that feat two more times, no big deal), Korean president Moon Jae-in issued a public statement congratulating the band and thanking BTS for spreading hope during the Covid-19 pandemic.
The band’s Hot 100 achievement, Moon said, “is a splendid feat that further raises pride in K-pop.”
It is truly amazing. It is a splendid feat that further raises pride in K-pop. The song “Dynamite,” which topped the list, is all the more meaningful as it has been composed to give a message of comfort and hope to people around the world who are struggling with COVID-19. — 문재인 (@moonriver365) September 1, 2020
It was the international popularity of BTS, particularly “Dynamite,” that ultimately prompted Korean lawmakers to introduce the bill, which essentially carves an idol-shaped exemption in the Military Service Act. In October, ruling party member Noh Woong-rae pushed the legislation forward on behalf of the band, arguing that its members should be allowed to serve the nation in other ways to meet its service requirements. And those who have advocated in the past for changing this law have frequently cited BTS in their arguments. “I think that members of BTS should also get the exemption,” speedskater Song Kyung-taek told the New York Times in 2018 when discussing the draft. “When South Koreans go abroad, we can mention BTS to explain where we come from.”