The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court denied an emergency application for injunctive relief in Dr. A. v. Hochul. This case challenged New York's vaccine mandate for healthcare workers. The policy grants medical-based exemptions, but does not permit any religious-based exemptions. Once again, Justices Thomas, Alito, and Gorsuch would have granted relief. The others were silent.
Justice Gorsuch wrote a 14-page dissent from the denial for injunctive relief, which Justice Alito joined. Justice Thomas simply stated he would have granted the application, without a separate writing. Gorsuch finds that Governor Hochul–who recently replaced Governor Cuomo–presided over the removal of a religious exemption. And in doing so, she exhibited an animus towards religion. Here are a sample of her statements:
[T]he Governor answered that there is no "sanctioned religious exemption from any organized religion" and that organized religions are "encouraging the opposite." Ibid. Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that "everybody from the Pope on down is encouraging people to get vaccinated." Ibid.
Speaking to a different audience, the Governor elaborated: "How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media."
"All of you, yes, I know you're vaccinated, you're the smart ones, but you know there's people out there who aren't listening to God and what God wants. You know who they are."
Huh!? These statements are far more egregious than the innocuous statements at issue in Masterpiece Cakeshop. The First Amendment does not only protect beliefs advanced by "organized religion." Even Catholics are allowed to hold beliefs different from the Pope. Hochul said that the vaccines are "truth," and presumably beliefs to the contrary are false. And she said vaccinated people of faith are "smart." The implication is that those who oppose vaccines are stupid. And they "aren't listening to God."
Justice Gorsuch concludes that these statements support a targeting claim.
New York's mandate is such an action. The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face.At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate "left off " a religious exemption "intentionally." The Governor offered an extraordinary explanation for the change too. She said that "God wants" people to be vaccinated—and that those who disagree are not listening to "organized religion" or "everybody from the Pope on down." Then the new Governor went on to announce changes to the State's unemployment scheme designed to single out for special disfavor healthcare workers who failed to comply with the revised mandate. This record gives rise to more than a "slight suspicion" that New York acted out of "animosity [toward] or distrust of " unorthodox religious beliefs and practices. Id., at ___ (slip op., at 17). This record practically exudes suspicion of those who hold unpopular religious beliefs. That alone is sufficient to render the mandate unconstitutional as applied to these applicants. . . .
Rather than burden a religious exercise incidentally or unintentionally, by the Governor's own admission the State "intentionally" targeted for disfavor those whose religious beliefs fail to accord with the teachings of "any organized religion" and "everybody from the Pope on down." Even if one were to read the State's actions as something other than signs of animus, they leave little doubt that the revised mandate was specifically directed at the applicants' unorthodox religious beliefs and practices.
The Supreme Court has now given a green-light to other jurisdictions to impose vaccine mandates without any religious-based exemptions.
Justice Gorsuch also opines on how progressives view unorthodox religions with skepticism. He draws a direct link between this case, and West Virginia v. Barnette. (Another case in which the Court overruled a precedent simply because it was wrong).
Today, our Nation faces not a world war but a pandemic.Like wars, though, pandemics often produce demanding new social rules aimed at protecting collective interests— and with those rules can come fear and anger at individualsunable to conform for religious reasons. If cases like Gobitis bear any good, it is in their cautionary tale. They remind us that, in the end, it is always the failure to defend the Constitution's promises that leads to this Court's greatest regrets. They remind us, too, that in America, freedom to differ is not supposed to be "limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." Barnette, 319U. S., at 642. The test of this Court's substance lies in its willingness to defend more than the shadow of freedom in the trying times, not just the easy ones.
Gorsuch also analogizes the path between South Bay/Tandon to Gobitis/Barnette:
We have already lived through the Gobitis-Barnette cycle once in this pandemic. . . . One can only hope today's ruling will not be the final chapter in this grim story. Cases like this one may serve as cautionary tales for those who follow. But how many more reminders do we need that "the Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis . . . may suggest"? Downes v. Bidwell, 182 U. S. 244, 384 (1901) (Harlan, J., dissenting).
How do Justices Kavanaugh and Barrett address these arguments? They don't. The junior Justices simply hide in the shadows, presumably because this case wouldn't meet the criteria for certiorari.