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Justice Gorsuch Illustrates How Smith-post-Fulton Should Be Applied

The state cannot grant medical exemptions without also granting religious exemptions.


In Fulton, the Court declined to overrule Smith. Justices Thomas, Gorsuch, and Alito would have taken that step. But Justices Barrett and Kavanaugh expressed reservations. Thus, for the time being, we are living in the Smith-post-Fulton world.

The Court's latest shadow docket case once again declined to clarify Free Exercise Clause jurisprudence. In John Does 1-3 v. Mills, the Court declined to halt Maine's vaccine mandate for healthcare workers, which did not permit religious exemptions. In an earlier post, I wrote about Justice Barrett's concurrence, which was joined by Justice Kavanaugh. They declined relief, in part, because the case was not cert-worthy. Justice Gorsuch dissented, joined by Justices Thomas and Alito. They would have granted relief. And Justice Gorsuch illustrates how to apply SmithFulton, in light of Diocese and Tandon.

First, Gorsuch finds that Maine's regime is not generally applicable because it has "individualized exemptions." And those exemptions exist on the face of the policy. Here, the dissent follows Fulton.

Under this Court's precedents, a law fails to qualify as generally applicable, and thus triggers strict scrutiny, if it creates a mechanism for "individualized exemptions." Lukumi, 508 U. S., at 537; see also Fulton v. Philadelphia, 593 U. S. ___, ___– ___ (2021) (slip op., at 5–6).

The state exempts people with medical objections, but not religious objections. This "double standard," Gorsuch writes, triggers strict scrutiny.

Second, Justice Gorsuch follows the most-favored nation framework from Tandon, and before it Justice Kavanaugh's Calvary Chapel dissent.

This Court has explained that a law is not neutral and generally applicable if it treats "any comparable secular activity more favorably than religious exercise." Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 1); see also Fulton, 593 U. S., at ___ (slip op., at 6); Lukumi, 508 U. S., at 542–546. 

Here, at least Justice Gorsuch, Thomas, and Alito think that Tandon is precedential. Yet, Fulton cited neither shadow docket case.

Third, the state allows medical-objectors to "take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers." But religious-objectors cannot "do the very same thing." Under either Fulton, or Tandon, this regime should be reviewed with strict scrutiny.

Fourth, Gorsuch reiterates a common trope in COVID-19 litigation: states view religious objectors with jaundiced eyes, but gazes at secular objectors with rose-tinted glasses. Once again, Justice Gorsuch favorably cites Judge Sutton's opinion in Roberts v. Neace.

Nor may any government blithely assume those claiming a medical exemption will be more willing to wear protective gear, submit to testing, or take other precautions than someone seeking a religious exemption. A State may not assume "the best" of individuals engaged in their secular lives while assuming "the worst" about the habits of religious persons. Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020). 

Fifth, Gorsuch explains that the state's interest cannot be stated at a sky-high level of generality. It is not enough to say that the policy is designed to protect public health.

But when judging whether a law treats a religious exercise the same as comparable secular activity, this Court has made plain that only the government's actually asserted interests as applied to the parties before it count—not post-hoc reimaginings of those interests expanded to some society-wide level of generality. Fulton, 593 U. S., at ___ (slip op., at 6); Tandon, 593 U. S., at ___ (slip op., at 2); Lukumi, 508 U. S., at 544–545.

Justice Gorsuch also quotes from then-Judge Gorsuch's circuit court opinion in Yellowbear v. Lampert (2014). Here is the full passage, which Gorsuch only quoted part of:

The more abstract the level of inquiry, often the better the governmental interest will look. At some great height, after all, almost any state action might be said to touch on "one or another of the fundamental concerns of government: public health and safety, public peace and order, defense, revenue," and measuring a highly particularized and individual interest "directly against one of these rarified values inevitably makes the individual interest appear the less significant." J. Morris Clark, Guidelines for the Free Exercise Clause, 83 Harv. L.Rev. 327, 330-31 (1969); see also Michael W. McConnell & Richard A. Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L.Rev. 1, 53 (1989) ("[A] common pitfall [in religious liberty cases] is to consider the two sides of the balance at different levels of generality."); Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L.Rev. 1267, 1323-25 (2007).

In common discourse, the phrase "public health" is a term of art that means, "Shut up and conform." After nearly two years of the pandemic, I am quite tired of judges using the mantra "public health" as a justification for absolute obsequiousness.

Sixth, Justice Gorsuch contends that "[s]temming the spread of COVID–19" cannot qualify as a compelling interest, "forever."  When Roman Catholic Diocese was decided, there were no vaccines of therapeutics. Now there are.

If human nature and history teach anything it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.

Seventh, even assuming the state has a compelling interest, the Maine rule is not the "least restrictive means available to achieve it."

Maine does not explain how denying exemptions to religious objectors is essential to its achieving that threshold statewide [90% vaccination rate], let alone in the applicants' actual workplaces.

Indeed, Gorsuch contends that Maine's policy flunks rational basis review:

Maine's decision to deny a religious exemption in these circumstances doesn't just fail the least restrictive means test, it borders on the irrational.

Why? Because many hospitals and health care facilities already have vaccination rates above the desired threshold of 90%. Forcing these select few objectors to get vaccinated would not frustrate the self-professed goal.

Eighth, Justice Gorsuch quietly responds to Justice Barrett's concurrence.  Likelihood of success on the merits is but one factor.

Before granting a stay or injunctive relief, we ask not only whether a litigant is likely to prevail on the merits but also whether denying relief would lead to irreparable injury and whether granting relief would harm the public interest.

Justice Barrett did not even address the irreparable harm at issue. I think the implication is that she thought the plaintiffs had an unmeritorious application, so there was no need to.

Gorsuch concludes:

This case presents an important constitutional question, a serious error, and an irreparable injury. Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered.All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention. I would grant relief.

Let's assume that Justice Barrett is correct and this case is only the first such petition to reach the Court. What happens when the second and third cases are denied? The state of our free exercise clause jurisprudence remains unsettled, and most of the potential litigants will likely get vaccinated, rather than risk losing their jobs.