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

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

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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.

NEXT: Justices Barrett and Kavanaugh Cut The Fuse On The Shadow Docket (Updated)

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  1. The policy merits are debatable but the Smith ones aren't. The idea that a religious objection and a medical objection are comparable is asinine. One is a choice based on moral belief. The is a need based danger to the person. There is a reason even pro-life individuals make exceptions for life of the mother. The health concerns are not comparable to moral objection

    Also I think they get the idea of general applicability wrong as well. It's not about individual assesment but when the state has discretion. There is no state involvement here. If the persons doctor says they have a medical condition that makes the vaccine dangerous they get the exemption. There is no state discretion here.

    1. "The idea that a religious objection and a medical objection are comparable is asinine."

      It's not the objection that is comparable, but the exception granted. The issue is, when you grant someone an exception from an activity for medical reasons (rather than ban them from the activity), you've demonstrated that exceptions can be made. And if you're already granting exceptions, you can also grant religious exceptions.

      Let's give an example. Imagine a industry which required a close fitting respirator, so closely fit that beards couldn't be worn. You needed to be clean shaven. If you had a medical condition that didn't allow for being clean shaven, you couldn't do the job. Likewise, if you have a religious belief that didn't allow you to be clean shaven, you couldn't do the job. But, if you make exceptions or have an altered procedure for some of the people with the medical reason, you can just as easily do it for the people with the religious reason.

      Likewise, in this case, the State of Maine says it is absolutely critical that health care workers have vaccinations. Great. But then they say...if you have a Medical Exemption, you don't need to leave your job, there are alternate things you can do. Then the same should apply to those with religious beliefs, they should be able to do those alternate things too.

      1. So if a state prohibits abortion at a specified time-period, but makes a medical exception for women who's health or safety would be jeopardized, then the state also has to make a similar religious exception. A women who would otherwise be prohibited from obtaining an abortion can now claim an exception to the law based on religious beliefs.

        Gorsuch, Alito, and Thomas are going to love that emergency application.

        1. The Congregation Of Exalted Reason eagerly awaits the world you describe.

          Our sacraments rock. No superstition required.

        2. It would certainly be an interesting position, if there was a strongly held religious belief that the person must get an abortion at 30 weeks. And that since there was a medical exception, there should also be a religious exception. There is a fairly strong mental health exception in many places, and the concept that being forced to violate your religious beliefs would cause you mental harm is valid.

          I don't know of any religious beliefs that have that particular concept, but you never know.

          There may also be a difference between forcing someone to do something (Mandates), versus laws that force people not to do something (prohibitions). But that's a different topic

          1. The Maine law prohibits a person from working in the health care sector without a vaccine. The supposed abortion law mandates that a woman carry a pregnancy to term.

            1. Ah, wordplay...

              A "prohibition" on something "without" doing something else... is effectively a mandate on doing that something else.

              For example, seat belt laws "prohibit" you from driving "without" wearing a seatbelt.

              1. Wasn't the entire conservative argument against the ACA mandate dependent on what you dismiss as wordplay?

                1. The entire conservative argument breaks down to this.

                  1. You shouldn't generally shouldn't force someone to buy a product (health insurance in this case). Especially when it applies to everyone.

                  That's a mandate.

                  1. I thought it was: telling people that if they did something X they also must do something Y, well, that's one thing, but telling people they just 'must' do Z, that's beyond the pale (remember, the whole 'action/inaction' distinction?).

        3. And this is EXACTLY why Kavanaugh and Barrett are taking the positions they do. They see it coming.

          In general, public health and preservation of human life is a traditional compelling interest that would support overriding a religious liberty interest pre-Smith. See my comment below for a discussion of this.

          They are taking a traditional position consistent with established precedent. I think it’s because they sincerely believe that position to be correct. But it also avoids the issues you point out.

          1. They didn't think much of public health in Tandon.

      2. But, if you make exceptions or have an altered procedure for some of the people with the medical reason, you can just as easily do it for the people with the religious reason.

        Of course you could, but the controversy is whether the Free Exercise Clause requires it.

        1. It's a strict scrutiny question. Generally, laws that infringe upon free exercise of religion bring strict scrutiny into play.

          One of the common arguments by the Government is that the law needs to occur, and there can't be exceptions. But once there are exceptions of one type...it's very hard to argue that there can't be exceptions of another type.

          1. I think the entire point is that there are exceptions of *another* type (in other words, not comparable). In other words, for a health and safety regulation to make an exception based on other health and safety grounds is not comparable to making one on religious ones.

            1. In other words... an exception based on other health and safety grounds is not comparable to making one on religious ones.

              The cost of granting one of the first is the same as granting one of the latter. That's what's known as a "comparison".

            2. The exceptions are not of different type. The cost, means and technology for granting an exception for medical purposes are identical to the cost, means and technology for granting the religious exception. The only difference between the two is the reason behind the request.

          2. It's a question of whether an exception should trigger strict scrutiny.

            1. Did you miss it that Gorsucks answered your question?

              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.

              1. Gorsuch was not speaking for the Court.

          3. Assuming arguendo the sincerity of the plaintiffs´ religious beliefs, what evidence of a substantial burden on those beliefs did the plaintiffs adduce before the district court? Is merely saying ¨I really, really, really don´t like it¨sufficient?

            1. Why are you pretending that this is a novel question?

              1. ...apart from the fact that you are on previous evidence a total nitwit, I mean.

              2. Where is the burden on religious beliefs at all, let alone a substantial burden? What evidence could one offer before a trial court?

      3. That is such a rigid framework. Just because an exception can be made doesn't mean that that exception has no costs (it likely has, otherwise the rule wouldn't exist in the first place). Extending the exceptions to new situations will aggravate the costs. How much depends also on how many people claim this exception. These costs need to be balanced against the costs of not having the exceptions, and having a serious allergic reaction to a vaccine is not comparable to violating some religious rule.

        1. ...having a serious allergic reaction to a vaccine is not comparable to violating some religious rule.

          Again with the "not comparable" nonsense. Spit it out. Which one is it that you consider inconsequential?

        2. " Extending the exceptions to new situations will aggravate the costs"

          The issue is, now you are explicitly valuing things differently. When you value things like this...if you devalue religious exceptions (which is what's going on)...then in your head it's "not worth it". But it "is" worth it for other types of exceptions.

          What that forms is a type of discrimination. The discrimination against religious behavior when compared to secular types of behavior.

          This type of discrimination is why we need the 1st amendment.

          1. Is it discrimination when religious behavior is treated worse than some secular behavior, but on part with or better than other (perhaps most) secular behavior?

            1. "Is it discrimination when religious behavior is treated worse than some secular behavior, but on part with or better than other (perhaps most) secular behavior?

              Yes it is discrimination.

              Let's illustrate this with a pointed example. Imagine a law that bans gays, Muslims, blacks, and those with felonies from being employed in a certain area.

              Is the argument that "since Blacks, gays, and those with felonies are being discriminated against for secular reasons, then discriminating against Muslims isn't religious discrimination?"

              Of course not.

              If you discriminate against someone for their religion, then it's discrimination. Even if you discriminate against other people for their secular beliefs. Only when everyone is treated equally can you claim for there to be no discrimination.

              1. Of course that's discrimination, but it's because Muslims were targeted because of their religion. In contrast in this case, religious conduct is incidentally burdened.

                1. You asked

                  "Is it discrimination when religious behavior is treated worse than some secular behavior, but on part with or better than other (perhaps most) secular behavior?

                  And I pointed out a clear example of it. Which you agreed with.

                  But then you changed to "targeting". But religious behavior in general is being targeted. Religious exceptions which were generally granted for a wide range of vaccinations are suddenly being denied.

                  1. I don't think it follows that a prior religious exception not being extended to a new situation automatically implies religious behavior is targeted.

        3. re: "having a serious allergic reaction to a vaccine is not comparable to violating some religious rule"

          True but I think that argument doesn't support your position the way you think it does. For much of history, the dominant philosophical position was that things done to one's corporal body were trivial compared to things that could endanger one's immortal soul. Many people, even today, consider their religious beliefs worth dying for.

  2. Has Josh Blackman written anything about the Satanists' argument that religious freedom should exempt them from bans or restrictions on abortion?

    1. That actually is applicable to this case because Maine has the oldest population of any state and it isn’t even close. So everyone knows that age is a big factor with respect to Covid but Maine still have a very low Covid death rate. So that means whoever has been calling the shots in Maine has done an outstanding job dealing with Covid and saved many many lives.

      So just like abortion involves another human being in Maine getting Covid is very dangerous in light of the age of the other Mainers. Quite frankly the people that filed this lawsuit are gutter trash and I would prefer to have the Taliban as my neighbors than these nuts. Anyone defending these people are also gutter trash.

      1. So that means whoever has been calling the shots in Maine has done an outstanding job dealing with Covid and saved many many lives.

        No, it doesn't. Actual scientific statement: Correlation is not causation.

      2. ,,,and after reading your second paragraph, I'll add that you are a shithead.

  3. The same arguments would necessarily apply to the Controlled Substances Act. The law is not generally applicable, since it allows possession of those substances in Schedules II-V with a prescription. It is also clear that there are religious objections to this act as it most definitely contradicts Scripture, e.g., Wisdom 1:14, "For he fashioned all things that they might have being, and the creatures of the world are wholesome; There is not a destructive drug among them."

    There is also no evidence that allowing those with religious objections to possess Schedule II drugs without a prescription would frustrate any governmental objective or pose any danger to the health and safety of the country. The record is clear that there has not been a single case of anyone possessing Oxycodone by "religious prescription" committing any crime or creating any risk to public health and safety. All that can be provided are high level objections such as "drugs bad."

    There is absolutely no evidence to suggest that religious exemptions to the controlled substances act and related legislation would harm any public interest. At best there is mere speculation.

    1. I fully expect Gorsuch and Alito to come up with some kind of just-so story for why the standard they're laying out in these COVID cases shouldn't apply to drugs, the same way Scalia did before them.

      But by all means, we should busy ourselves poring over all of the other laws with even the slightest exceptions, searching for "religious objection" loopholes. Gorsuch is too eager to engage in judicial lawmaking, and needs to start seeing his opinions blow up in his face.

      And, who knows? Josh might learn a thing or two.

    2. And those with religious beliefs can obtain the same restricted items with a prescription

    3. Of course alleged religious requirements have in fact been held to require exemptions for, say, peyote.

      Feel free to make your case for oxy.

      1. Employment Division v. Smith, 494 U.S. 872 (1990), is to the contrary. Do you have authority for your assertion about peyote?

  4. If Gorsuch wants so badly to shape public policy, he should resign from the Court and run for office. This is incredibly awful judicial reasoning, and it really is no surprise that Josh fully endorses it.

    Overrule Smith, or don't. Don't purport to "apply" it in a way that would cause every single rational law to fail under its standard.

    1. It is just so awful to be a white Christian in America…Jesus had it easier than white Christians in America. I wish we could return to 1850 America where white Christians weren’t mistreated. 🙁

    2. Your declaration that Gorsuks is engaging in "awful judicial reasoning" isn't worth the toilet paper your non-argument wasn't written on.

      1. So you got nothing.

        I don't mind a bit of judicial perscriptionating myself, but y'all on the right need to square your rhetoric of the past with your embrace of this kind of opinion.

        1. If you can find any rhetoric that Gorsuks, or I, emitted in the past that his here supposedly contradicts, make your case.

          Otherwise there's no need to have anything to respond to the great vacancy of nothing (similar to space between your ears) that is Sebby Crummyton's post and yours.

    3. Right, because Barrett and Kavanagh are NOT shaping public policy by letting governments overrule the constitution by applying a 1905 law.

  5. Gorsuch also wrote that: "This Court has long held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion)."

    But "the Court" did not actually "hold" that claim in Elrod. The quote is a from a passage in the Elrod plurality opinion signed by Brennan, White and Marshall. The syllabus in that case states that "Brennan, J., announced the judgment of the Court ..." (emphasis added). Gorsuch, however, is the same person that wrote the lead opinion in Ramos v. Louisiana, in which he focused on the "badly fractured set of opinions" that were issued in Apodaca v. Oregon.

    So, in Ramos, Gorsuch takes issue with prior plurality opinions, but now a prior plurality constitutes what the "Court has long held," since the claim can be used to support his argument.

    This guy.....

    1. "[L]ong held" implies more than one opinion, even if Gorsucks only cited one. Are you claiming that the temporary loss of First Amendment freedoms is NOT irreparable injury? Because that assertion seems pretty anodyne to me.

      1. You cite more than one opinion if you have more than one opinion to cite.

        Yeah, it's not clear what the contours of 1A protection are. Rights are full of exceptions, as any first year law student learns.

        1. What the contours of 1A protection are is of course completely irrelevant to the question of whether deprivation of First Amendment freedoms WITHIN such protection is irreparable injury. Assuming you were ever a first year law student it apparently didn't equip you to deal with such mundane observations.

  6. 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."

    So what? That's not what's happening here. Having a medical condition that makes vaccination dangerous is not an "activity." It's an involuntary health condition.

    Playing golf is an activity. Having an ailment is not.

    1. What's the difference between having a medical condition and having a strongly held religious belief?

      Is there a "choice" in either case?

      1. If only my colleague who died of cancer could have converted to cancer-free...

        1. It's a common misunderstanding by those who don't understand religion, but a strongly held religious belief isn't a "choice" any more than sexual orientation is a "choice"

          To mock it, like you're doing, is the same as those bigots who told the gay people they should just "convert" to being straight.

          1. Not quite. The idea behind current sexual orientation understandings is that there's a 'hard wiring' component. I certainly think, regarding religious beliefs, you are hard putting someone who is asked to violate them (I hate the idea that my tax dollars go to executing people, for example, for largely religious reasons). But it's closer to political affiliation or marital status.

            Having said that, I grant you the only one of those that has explicit constitutional protection is religious exercise. I myself think the answer is in large part that 'religious exercise' was never meant to encompass the broad idea of 'everything I do, I do through Christ' approach, but to protect religious worship. I don't think the Founders meant to enshrine protection for every action answered by the question 'WWJD.'

          2. The idea that religion is not a choice is nonsense, since we see many people dropping religion entirely at a trivial slight, or switching brands to marry an attractive mate. All children are born atheist, and only develop religion based on their random heritage or community.

            1. Exactly, ScottK.

              Any one of us could adopt a new set of religious beliefs tomorrow. Indeed, they are plenty of people with strongly held religious beliefs who are eager to get us to do just that. They certainly don't think that religious belief is an unchangeable trait.

            2. "The idea that religion is not a choice is nonsense, since we see many people dropping religion entirely at a trivial slight, or switching brands to marry an attractive mate."

              Again, a common misunderstanding. A deeply held religious belief is not so easily dropped. There's been a long, long history of people not dropping their religious beliefs, despite the most extreme discrimination and opposition.

              Let's use the sexual orientation example again. You see a lot of people "go gay" in college, then switch to being straight. Using your framework, it would follow that sexual orientation is "just a choice" and can be easily flipped.

              But it's not for a good number of people. Some can flip back and forth easily, sure. But that doesn't mean it's a choice for everyone.

    2. Continuing to work without vaccination for medical reasons and continuing to work without vaccination for religious reasons are both "activities". Declining to take vaccination for each reason is also an "activity" in the eyes of the law. Etc. Your bad-faith distinction is unconvincing.

  7. 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.

    This is idiotic. The goal is 90% statewide, not just of health care workers. If you push the rate among those workers from 91%, say , to 96%, you definitely have taken a step toward the goal.

    You've also, btw, taken a step towards the time when COVID ceases to be a public health emergency, which is something Gorsuch seems to be worried about.

  8. Just as Jimmy said back in the equity post. Principle no longer mattes and conservatives are fools to use it as some sort of procedural hurdle from forwarding their agenda.

    SB8 - screw procedure these women have constitutional rights!

    Vaccine mandate - screw your religious rights people need to be safe!

    Frankly, at this point we are beyond any principle. Conservatives need to do what must be done to protect our way of life and republic. That is all that matters.

  9. "at this point we are beyond any principle. "

    I finally agree with Jimmy, he and his ilk are indeed beyond (I'd say behind, but meh) any principle.

    " need to do what must be done to protect our way of life and republic. "

    What if your way of life is a principled one? Notice how Jimmy is just the mirror image of Antifa Marcuse types: yes, a liberal republic is nice but it's being threatened by X so we can embrace liberal, anti-republican measures to protect our liberal republic from those that don't believe in it (which now includes: them!).

    1. Oh my way of life is a principled one. I just know that you can't win a "total war" situation if you have both your hands tied behind your back with "principle".

      1. Principles you discard based on how bad you think the other side is aren't principles at all.
        One way to tell is you advocate discarding principles every time there's a chance, because of how bad you think liberals are or secretly are or would hypothetically be.

  10. I honestly don't see why the SC has any authority over this. I disagree with the decision but it is an area not under the control of the Federal Govt. Of course most legislation and SC decisions post 1932 are outside the authority of the Constitution.

    1. The 14th A is law. Youy need to get over your disappintment about that.

  11. This case illustrates a split within the court’s right wing.

    Gorsuch, Alito, and Thomas would apply then-Judge Alito’s opinion on Police v. Newark full blast. If the state makes a medical exception, it mist also make a religious exception. This would maximize religious liberty.

    Kavanaugh and Barrett, on the other hand, appear to be taking the traditional pro-life position, the one long held by the Catholic Church, the Right to Life movement, etc. That movement did not just oppose abortion. It also consistently opposed the existence of a constitutional right, not just to assisted suicide, but also to refuse medical treatment. And it consistently argued that the state’s interest in preserving life trumped whatever constitutional interests were asserted.

    In Cruzan v. Director, the Supreme Court basically denied the existence of a fundamental general constitutional right to refuse life-sustaining medical treatment, holding that such a right existed at common law, but was a “rational basis” liberty interest, and states could limit it if they had a rational basis for doing so.

    Barrett and Kavanaugh are simply taking this very standard pro-life position. That position has traditionally been that the state has a compelling interest in human life that simply trumps other constitutional rights, and they don’t see. Need to exempt religious liberty from the list of constitutional rights it trumps.

    Fraternal Order of Police v. City of newark involved a Muslim who sued to defeat Newark’s regulations that police must wear beards.Alito held that since Newark made medical exceptions, it must make religious exceptions as well.

    If a Police v. Newark like case came to the Supreme Court, I think their position might be that under pre-Smith jurisprudence, the City of Newark simply does not have a compelling interest in having all police officers have a uniform appearance and look shaved, so its appearance rules do not trump religious rights.

    But they would doubtless say that public health, particularly protection from a pandemic, is an obviously weightier state interest than police esthetics. Public health is an obvious traditional compelling interest; appearance regulations (at least outside of the military) are not.

    If Smith were overturned, Kavanaugh and Barrett would find for Maine based on these traditional pro-life principles. In their view, there could be no question that a state has a compelling interest in preserving the lives and health of its citizens, and this interest trumps religious liberty just as it trumps other constitutional interests. And it seems clear they are unwilling to accept an interpretation of Smith that threatens the consistency of their position, or creates new exceptions to the precedents they intend to rely on. For this reason, it is very understandable why they were not willing to grant the plaintiffs emergency relief.

    It doesn’t take a lot of genius to suspect that Kavanaugh and Barrett are thinking about applying these principles to abortion. It is understandable that they would want to be able to say look, we applied these principles even to religion; we’re going about this in a fair and neutral way.

    1. Sorry, the Muslim wanted a beard, the regulations required police officers to shave.

    2. And just to clarify, the reason why medical exceptions pass is precisely that they fall within the state’s compelling interest in preserving life, at least when tailored to that interest.

      This may become relevant to addressing exceptions in abortion laws.

    3. Kavanaugh and Barrett are probably thinking more about repudiating the acts and attitude of that d*mnable heretic Martin Luther, who during the Plague of Wittenberg, defied public orders and common sense to care for (ministered to) the sick and dying, giving medicines and comfort in his own house; to

      "... battle with word and precept against the real and spiritual pestilence of Satan in his wickedness with which he now poisons and defiles the world."

      '/Sarc' implied; but the implication of spiritual pestilence, of a mental disorders or distubances accompanying the epidemic, is certainly on full display with the Covid.

      1. No, this is a traditional position the Supreme Court has taken, consistent with established precendent, especially pre-Smith. It has been the position of Protestant right-wing justices - White and Rehnquist, for example. I think it would be a grave mistake to describe it in partisan theological terms or as rooted in partisan theological concerns.

    4. The notion that the presense of any single exception to a generally applicable rule requires a religious exemption is waaaaay too broad.

      Several states exempt senior citizens from property taxes. Does that mean I can join Kirkland's church and successfully claim that paying property taxes is against my religion?

      Zoning rules grandfather in exceptions all the time. Does that mean that I can joint the Church of Urban Sprawl, and develop to my heart's content?

  12. This case represents a profound cultural shift that deserves mention. Until quite recently this case would have been near-unanimous. The pro-life right trusted the medical establishment, indeed gave it special respect and deference. They simply wanted it to continue operating within traditional ethical rules.

    Two elements of current right-wing thinking that have clearly seeped into the Supreme Court - the idea that liberty trumps life, and suspicion of the establishment to the point of direspecting doctors’ authority - would simply have been unthinkable probably even a few years ago, and certainly a generation ago.

    It is a really remarkable shift.

    1. Two elements of current right-wing thinking that have clearly seeped into the Supreme Court - the idea that liberty trumps life [...] - would simply have been unthinkable probably even a few years ago, and certainly a generation ago.

      Are you suggesting that it was unthinkable that the right-wing would be championing the view that 'liberty trumps life'?
      Or are you suggesting that it was unthinkable that the Supreme Court would express any views that 'liberty trumps life'?

      Because I would suggest that there are any number of previous places where SCOTUS has expressed the view of 'liberty over life' on traditionally left-wing issues.

      1. Indeed I am referring soecifically to the right wing of the Supreme Court.

        Cruzan was decided by Rehnquist.

        Brennan, Marshall, and Stevens dissented. They would have recognized a constitutional right to die as being a fundamental liberty interest.

        Until recently, no-one on the the right wing of the Supreme Court, however muscular a view of the Free Exercise Clause they might have had, would have dreamed of holding that if you have a religious belief that you have a right to refuse mandated medical treatment, that belief trumps the state’s interest in your individual life, let alone in public health generally.

      2. Nor would they dream of holding the corollary - that if uou have a religious belief you have a right to a late-term abortion, you can get one even though others can’t.

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