First, the good news: It does not appear that a majority of the Supreme Court is prepared to find that religious liberty claims require an exemption to COVID vaccine mandates everywhere and anywhere. This is profoundly good news given that COVID rates appear to be spiking yet again as we prepare to enter the holiday season. Twice now, in six weeks, a six-justice majority has flicked away claims from religious health care workers who assert a First Amendment right to refuse vaccination against the coronavirus. Two of these justices, Brett Kavanaugh and Amy Coney Barrett, have certainly left the door open to changing their minds. For the time being, though, these two junior justices appear to be unwilling to exacerbate the pandemic in the name of religious liberty.
Now the bad news: Three justices, led by Neil Gorsuch, say there is a First Amendment right to refuse the vaccine on religious grounds. Worse, they are defending this position with dangerously broad and overheated rhetoric that undermines the constitutional foundation of all vaccine mandates. Gorsuch, along with Justices Clarence Thomas and Sam Alito, has rejected the principle that preventing the spread of communicable diseases qualifies as an inherently compelling state interest. And he is fighting to transform litigation over religious exemptions into an elaborate game of chutes and ladders the government will always lose. These radical and polarizing arguments may have alienated Kavanaugh and Barrett for now. But they are swiftly gaining purchase among extremist lower court judges, who are seizing on Gorsuch’s dissents to swat down mandates—all while toppling a pillar of public health in the process.
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Gorsuch’s theory may not have won over a majority of the Supreme Court just yet. But it is already blazing its way through the lower courts as a clarion cry on behalf of religious dissenters who believe they are being singled out for hostile treatment by state officials seeking to do nothing more than save lives. Three different judges appointed by Donald Trump have already approvingly cited this passage in decisions halting federal vaccines mandates. Their opinions are also bristling with hostility toward government efforts to slow down the spread of a disease that has now claimed 800,000 American lives, as well as unscientific skepticism toward the very efficacy of vaccines. (“One could query how an ‘emergency’ could prompt such a ‘deliberate’ response,” wrote one Trump judge; “if boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?” asked another.)
One lower court judge has taken Gorsuch’s ideas a step further. Dissenting this week from a decision allowing United Airlines’ COVID-19 vaccine mandate for employees to remain in place, Judge James Ho of the 5th U.S. Circuit Court of Appeals made Gorsuch sound almost reasonable. In a six-page dissent, Ho, a Trump appointee, described United’s vaccine mandate as proof of a “calloused approach to” and “apparent disdain for” people of faith. Ho’s dissent was full of his usual Newsmax flourishes: “To hypothesize that the earthly reward of monetary damages could compensate for these profound challenges of faith is to misunderstand the entire nature of religious conviction at its most foundational level.” He noted that “as if all this weren’t enough, to top it all off, United is forcing this crisis of conscience on the eve of Christmas—one of the holiest times of the year, the season when Christians cherish devoting their hearts and souls to both faith and family alike, not to choosing between the two.”
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