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.

 

Comments

[Lee Moore]

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.

Just as they wisely decided to do with SB8.

Oh wait !

[ReaderY]

I think there’s a very simple explanation. Barrett and Kavanagh, and likely Roberts, are applying traditional pre-Smith compelling interest standards under which the government’s compelling interest in preventing plague simply outweighs religious liberty in the same way its interest in taxes does. Aince the government would win Smith or no Smith, there’s no likelihood of success on the merits and hence reason to grant an injunction.

Indeed, tfhe idea that people’s interests in personal liberty outweigh the government’s interest in health is hardly a winning argument for people concerned about how to overturn Roe v. Wade in a way that maintains logical coherence and consistency.

Let’s be blunt. Kavanaugh and Barrett would, in a heartbeat, trade the religious liberty of anti-vaxxers for overturning Roe. If government can prohibit pregnant woman from getting a procedure they want, it can require anti-vaxxers to get a procedure they don’t want.

Not is this really a tradeoff. The general, traditional pro-life position has long been that government can intervene and trump your liberty when life is at stake. It can do this in abortion, it can do this in assisted suicide, it can do this in vaccinations. It’s a very consistent position. If Kavanaugh and Barrett want me to restore the notion that the Constitution does not quarrel with the traditional, consistent pro-life position, the last thing they would want to do is upend that position in a way that could introduce inconsistencies.

[AtR]

"If government can prohibit pregnant woman from getting a procedure they want, it can require anti-vaxxers to get a procedure they don’t want. "

Interesting you say this ... Buck v. Bell was, in fact, one of the arguments against Roe. The only problem was that it was one of the more heinous decisions of the Supreme Court in the last 100 years.

[Dilan Esper]

That's a reasonable theory.

Also, I think Barrett is trying to impose a "certworthiness" standard on shadow docket injunctions- she probably thinks the Court went to far and took a PR hit with all of its shadow docket activity in 2020. So even if she did think the petitioners should prevail, she doesn't think SCOTUS has any institutional reasons to take the cases.

[LawTalkingGuy]

Also FWIW, Kavanaugh and Barrett have both had COVID, Barrett before the vaccine. And Barrett's super-spreader nomination party possibly brought the President of the United States to a dangerous health situation. So they might be more acutely aware of the dangers this disease and wary of having too many loop-holes to government vaccine policy.

[LawTalkingGuy]

Going to expand on this a bit and explain how I think personal COVID experience actually relates to legal judgment in a legitimate way.

Sometimes we forget that judges don’t just construe laws, they assess facts. As is the case for a strict scrutiny test or the standards for granting preliminary injunctive relief, the factual assessment the law requires is extremely open ended. What is a compelling interest? Is the public interest served by the injunction? Is there irreparable harm? Is there a harm to third parties?

Figuring out the facts and how they fit into these categories is inevitably going to be colored by the individual judge’s personal experiences. Having a bad experience with a disease might make the judge weigh the facts differently than one with more attenuated experiences. And that’s kind of how it should be: any 2L can grab a dictionary and some case law and correctly construe a statute. We want judges to have “experience” in part because they’re making determinations concerning facts about the world and their importance.

So having a personal experience with COVID might make a judge realize: wow fighting this is a really compelling interest. If we grant an injunction the public interest won’t be served by having too many exemptions to vaccines. Third parties could really be harmed if an unvaccinated person spreads the disease more easily. Etc. A judge for whom COVID is more of an abstraction might evaluate facts about the disease differently.

[AtR]

But since we only a have a small number of judges in any court, this would mean that the law would depend on the very specific experiences of the judges involved.

One judge, who had a severe case of COVID, would rule more harshly and another judge, who knew someone who died after getting vaccinated, would rule more leniently.

This approach would reduce the law to anecdotal encounters, instead of a principled, universal understanding of a matter.

[LawTalkingGuy]

“This approach would reduce the law to anecdotal encounters, instead of a principled, universal understanding of a matter.”

The real secret is that’s how it has always worked.

[not guilty]

There is SCOTUS precedent for a state criminalizing refusal to be vaccinated with no religious exceptions. It was decided in 1905 and is still good law.

[John F. Carr]

And if the rule were "you may not work at (facility) unless vaccinated per CDC recommendations" the law would be straightforward. Governments are getting called out when they start making exceptions.

[not guilty]

If Jacobson v. Massachusetts is to be modified, the proper way to do that is plenary review, not a truncated preliminary injunction record without full briefing.

[AtR]

I agree about the proper way to review Jacobson.

However, on a separate matter, what makes something "good law". Is Buck v. Bell good law? It hasn't been explicitly rescinded. Korematsu v. US was good law ... until it wasn't. Law is a reflection of modern-day ethics, not the other way around.

[not guilty]

Buck v. Bell has never been overruled, but I would argue that its reasoning has been superseded by subsequent decisions. Skinner v. Oklahoma ex rel. Williamson recognized procreation as a fundamental constitutional right, and Griswold v. Connecticut and Eisenstadt v. Baird acknowledged an individual's constitutional right of privacy in deciding whether to bear or beget a child.

[QuantumBoxCat]

In addressing the issue of irreparable harm, the Court of Appeals for the Second Circuit concluded that:

"Plaintiffs fail to meet the irreparable harm element simply by alleging an impairment of their Free Exercise right" (p. 42). And, "[b]ecause Plaintiffs' economic harms under Title VII could be remedied with money damages, and reinstatement is a possible remedy as well, we conclude that Plaintiffs have failed to demonstrate that they will suffer irreparable harm absent injunctive relief" (p. 43).

New York's reply brief in the Supreme Court includes a section titled: "The Absence of Irreparable Injury and the Balance of the Equities Weigh Heavily Against an Injunction." The section opens with, "The extraordinary relief of an emergency stay is also unwarranted here for the additional reason that these plaintiffs have failed to establish either irreparable injury or a balance of the equities in their favor" (p. 39).

Justice Gorsuch, in his dissent from the the Court's denial of petitioner's application, writes:

"In this case, no one seriously disputes that, absent relief, the applicants will suffer an irreparable injury" (p. 6).

WTF?! The three judge panel of the Court of Appeals and the Respondent in the case "seriously dispute" the applicants claim regarding irreparable injury. And yet, with a single sentence, Gorsuch makes this disagreement disappear. Dude is a freaking wizard.

[Dilan Esper]

Good catch

[Toranth]

I'm too lazy to actually read the references, but did New York or the original Court actually do anything to show that it wasn't an irreparable injury, or did they just handwave it away?

If they just hand-waved, then his "wizardry" is no worse than theirs was.

[JJJSSS]

It’s not an irreparable injury because you can ultimately be compensated for losing your job.

[Toranth]

That's a debatable assertion, but it doesn't answer my question: Did they actually say that? If they did, did they provide any evidence, or just state it?

[JJJSSS]

The court wouldn't provide evidence- that's on the parties (and of course when seeking an injunction the burden is on the plaintiffs to demonstrate irreparable harm); the court would provide analysis. And they did. This from the Court of Appeals-

"Plaintiffs also contend that they face imminent irreparable harm from loss of employment and professional standing if they refuse the COVID-19 vaccine on religious grounds. We acknowledge that Plaintiffs may possibly suffer significant employment consequences if they refuse on religious grounds to be vaccinated. It is well settled, however, that adverse employment consequences are not the type of harm that usually warrants injunctive relief because economic harm resulting from employment actions is typically compensable with money damages. See Sampson v. Murray, 415 U.S. 61, 91-92 (1974) ("[L]oss of income and . . . the claim that her reputation would be damaged . . . falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction[.]"); Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) ("Since reinstatement and money damages could make appellees whole for any loss suffered during this period, their injury is plainly reparable and appellees have not demonstrated the type of harm entitling them to injunctive relief."). Because Plaintiffs' economic harms under Title VII could be remedied with money damages, and reinstatement is a possible remedy as well, we conclude that Plaintiffs have failed to demonstrate that they will suffer irreparable harm absent injunctive relief."

[Toranth]

Thank you for the quote.

Yes, they cited previous cases where that was the ruling. So even if they are not inclined to take the claim seriously themselves, it is at least in line with precedent.

This does look like Gorsuch either just ignoring that, or he has strong disagreements with the original cases cited (which I assume he's stated elsewhere, or this become doubly hand-wavey).