The Volokh Conspiracy

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Vaccine mandates

Why the Court Is Avoiding a Ruling on Religious Exemptions in the Vaccine Context

Are the justices exercising the passive virtues?


This week, by a vote of 6-3, the Supreme Court declined to grant a preliminary injunction against a New York measure that mandates Covid vaccines for health care workers. The plaintiffs argue that the measure, which does not allow religious exemptions, violates their First Amendment rights, and argued they would suffer irreparable harm if the measure were enforced while the case is pending. The case now returns to the Second Circuit, which will hear argument on the merits.

This is the second time in recent weeks that the justices have declined to block a vaccine mandate that lacks religious exemptions. In October, also by a vote of 6-3, the Court refused to enjoin a Maine mandate for healthcare workers, in part because of the justices, Barrett and Kavanaugh, thought the case did not offer a good vehicle for considering the issue.

The Court did not give its reasons for denying the plaintiffs' requests in either the Maine or the New York case, but the justices' caution is understandable. The COVID-19 pandemic has intensified divisions about the value of religion and religious freedom in our country, and the justices might wish to avoid doing something to provoke further conflict. Religious exemption claims generally pose hard questions, and those questions are particularly troublesome in the vaccine context.

Moreover, precisely because the Maine and New York lawsuits are at the preliminary injunction stage, the factual records are not entirely clear. The Court could reasonably think that it should allow the lower courts an opportunity to consider the claims further before it issues any rulings. Finally, the Court might think that state and local governments will themselves see the prudence of offering religious exemptions, as many already have done, considering the difficulties vaccine mandates have created for healthcare and other services.

In short, this may be a situation in which the Court is exercising the passive virtues, staying out of a neuralgic controversy until absolutely necessary. I discuss all this in more detail in an essay today at Public Discourse. Interested readers can find the essay here.