Dahlia Lithwick at Slate catches us up on where the Supreme Court will likely come out on this case about vaccine mandates:
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 […]
Gorsuch’s most alarming argument is more fundamental: He openly scorned the notion that the government’s interest in halting the spread of a lethal global virus is always “compelling.” While the justice begrudgingly acknowledged that limiting COVID is a compelling interest today, he added that it “cannot qualify as such forever.” Pointing to the development of vaccines and treatments, he suggested that state efforts to fight COVID will no longer qualify as “compelling” in the very near future because if these treatments work, people won’t get sick and die. “If human nature and history teach anything,” he concluded with a grandiose flourish, “it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
As Northwestern University law professor Andrew Koppelman has explained, this logic is terrifying on its face.* The Supreme Court has increasingly applied the highest standard of judicial review, known as “strict scrutiny,” to any infringement on free exercise rights, forcing the government to prove again and again that it has a “compelling” interest in burdening religion. The government automatically flunks this test any time the court determines that it lacks such an interest. So Gorsuch, along with Thomas and Alito, are preparing to rig the game against COVID restrictions: With every passing day, goes the logic, the government’s interest becomes less compelling. With every life saved, the urgency of saving future lives diminishes.
If all this sounds like the Supreme Court’s decision to gut the Voting Rights Act’s preclearance provision because it successfully suppressed racist voting laws, it’s because the logic is the same. As Justice Ruth Bader Ginsburg pointed out then, scrapping a law because of its success is “like throwing away your umbrella in a rainstorm because you are not getting wet.” Throwing out an umbrella for keeping you dry is bad enough. Now Gorsuch seems to be suggesting that the more effective those umbrellas are, the less government interest there can be in requiring them. As Koppelman notes in his piece, Gorsuch seems to be floating the principle that we can soon achieve some acceptable rate of unnecessary death, such that the state will no longer have a compelling interest in preventing these deaths at all.
And his logic extends far beyond this pandemic. Gorsuch seems to think that unless a disease is actively killing tens of thousands of Americans a month, the state cannot curb its spread in a manner that hampers “religious liberty.” Under this theory, mandatory vaccination laws for all kinds of diseases—polio, smallpox, measles—would be suspect, particularly if those diseases no longer ravage the population. (Never mind that these diseases have been largely eradicated in the United States because of vaccine mandates.) And states like California and New York could no longer refuse religious exemptions to school vaccination rules. In his dissent, Gorsuch felt no compunction about accusing New York Gov. Kathy Hochulof anti-religious hate. Condemning Hochul for declaring that “God wants” everyone to get vaccinated, the justice proclaimed that this comment “exudes suspicion” and “animosity” toward “those who hold unpopular religious beliefs” in violation of the First Amendment.
Lithwick notes that this theory does not have a majority on the Court yet but it’s “blazing its way through the lower courts as a clarion cry on behalf of religious dissenter who believe they are being singled out for hostile treatment by state officials seeking to do nothing more than save lives.” A bunch of Trump judges have already cited this fatuous piece of nonsense in their opinions halting mandates in various states
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.”
Gag me. If I have ever dismissed all those people who have been screaming that these people want to establish a theocracy, I apologize.
Josh Marshall wrote this long twitter thread in response, which I think is correct:
Specifically, it is a new theory, in the Court minority for now, which seems poised to invalidate ALL vaccine mandates on the theory, among others, that the state simply has no compelling interest in preventing the spread of communicable diseases. It’s part of the broader right wing judicial agenda to put much of the power of the state at the mercy of a novel sort of Calhounite minority veto. But there’s a whole other layer of this corruption that gets too little attention. In the overwhelming number of cases the idea that these mandates are violating ANYBODYS religious scruples, let alone liberties, is just bullshit. Here’s an example.
There are many people who believe it is an abuse of the free exercise clause to put civil rights legislation or abortion rights legislation at the mercy of claims of religious liberty. I am definitely one of those people. But there are large communities of belief in this country who believe abortion is deep moral evil and that belief is deeply interwoven with their confessional identity. I don’t think that means they should be able to veto public laws or get carve out or whatever. But I grant that these are at least issues that their religious beliefs directly speak to.
There are close to no religions in this country who have anything like that with vaccinations. Christian science does. A very small very small sects. But VERY few. Overwhelmingly this religious objection is just totally made up. There are basically no mainstream Christian denominations that say anything about vaccination.
Now it is true that we really don’t want to get the state into the business of litigate what your religion says and what you do and don’t believe. But this is why the has always been on the believer to make some good faith effort to demonstrate that something the state is requiring impinges on some actual body of belief, or even some demonstrated personal history.
Otherwise, it’s just an ability to opt out of or actually overthrow any law that doesn’t match with your current preferences or political impulses or beliefs. We’d all like to do that sometimes. But that’s the burden of living in society, living in a democracy. The whole notion of religious liberty has become a mockery of the original conception – which was the liberty to **practice** your own religion, not the ability to use your religious confession as a sort of constitutional force field that allows you to ignore or break laws you don’t happen to like.
But we shouldn’t lose sight of the fact that these vaccine claims are actually already that reductio ad absurdum. Religions these litigants purport to subscribe to have no objection to vaccination. Very few of these individuals even have personal histories of such opposition. Have they ever gotten a tetanus shot? These latest ruling go beyond the rulings of recent years which make religious liberty less a defense against the hand of the state so much as a cudgel to be used against here.
Here, again, the claims of religious scruple are just made up out of whole cloth because the path has already been created for such fabulisms by the corruption of free exercise doctrine. None of this is a surprise to anyone. We know this stuff is made up. It’s bullshit even on its own terms.
Originally tweeted by Josh Marshall (@joshtpm) on December 23, 2021.
I don’t think any of us have full grokked just how much the Federalist Society judiciary is going to change all our lives. It is going to be profound and very, very difficult to reform. I wish I thought the Democrats were up to the task, but if there is one institution that seems to be off limits by the Centrist Consensus it’s that. Let’s hope that changes because if it doesn’t we are in trouble.
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