Barrett and Kavanaugh Supply Another Majority to Deny Religious-Liberty Exemption

F or the second time in less than two months, Justices Amy Coney Barrett and Brett Kavanaugh joined with Chief Justice John Roberts and the Supreme Court’s three progressives (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) to uphold a state vaccine mandate over a religious-liberty challenge by medical professionals.

This time, it was New York’s vaccine mandate, which initially included an exemption for religious objectors. These objectors included some Catholics and other Christians who oppose abortion. The vaccines are derived in part from abortion — specifically, from fetal-cell lines used in vaccine production and testing. Nevertheless, when Kathy Hochul replaced Andrew Cuomo as governor, she stripped the religious exemption from the mandate, making the astonishing acknowledgment that she had done so “intentionally” because those who resisted vaccination “aren’t listening to God and what God wants.”

The state’s mandate provides an exemption for those who claim to object on medical grounds. Consequently, the mandate blatantly discriminates against religion — and, as Hochul has made clear, quite purposefully so. In addition to depriving religious objectors of their jobs, Hochul’s revised mandate also makes them ineligible for unemployment-insurance benefits.

The six-justice majority nevertheless turned a deaf ear to the religious objectors, who had previously been praised by state-government officials for the heroic medical service they selflessly provided to patients throughout the pandemic, particularly in the early stages.

It is the second time in recent weeks that Justices Barrett and Kavanaugh provided Chief Justice Roberts and the progressives the votes needed to defeat freedom of conscience. In late October, the two Trump appointees were the decisive votes in Does v. Mills, which upheld a Maine mandate denying a religious exemption to vaccine objectors, though permitting a remarkably lax one for claimed medical objectors.

In a brief concurring opinion joined by Kavanaugh, Barrett avoided addressing the merits in Mills, rationalizing instead that the Court should exercise discretion not to review the claim because it arose in the context of a petition for an injunction. Barrett lamented that such cases, on the Court’s so-called emergency docket, rush the Court into proceeding “on a short fuse without benefit of full briefing and oral argument.”

I contended at the time that this was a very unpersuasive reason for ducking the issue — and, of course, Barrett and Kavanaugh didn’t really duck it; their votes upheld an abusive decree by state officials who offered no sound reasons for discriminating against religious objectors, thus encouraging more such decrees.

This time around, in Dr. A v. Hochul, there was no concurring opinion. The six-justice majority just curtly stated that the application for injunctive relief had been denied. Once again, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, with Gorsuch again filing a substantial dissent joined by Alito.

Gorsuch related that New York’s hostility to religious objectors was unabashed. Governor Hochul, in conclusory ignorance, simply denied that the objectors had a religious basis for their vaccine resistance because there had been no “sanctioned religious exemption from any organized religion”; to the contrary, “everybody from the Pope on down is encouraging people to get vaccinated.” On another occasion, Hochul — whose grasp of religious doctrine is rivaled only by her mastery of constitutional law — asked an audience at a Baptist church in Harlem, “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.”

Justice Gorsuch’s response to this asininity is worth quoting at length. In denying relief, he observed,

We do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that, if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of religion. In this country, religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit protection. Nor is the free exercise of religion limited to beliefs which are shared by all of the members of a religious sect. Millions have fled to this country to escape persecution for their unpopular or unorthodox religious beliefs, attracted by America’s promise that “every citizen here is in his own country. To the protestant it is a protestant country; to the catholic, a catholic country; and the jew, if he pleases, may establish in it his New Jerusalem.” People v. Phillips (Gen. Sess., N. Y. 1813), reported in W. Sampson, The Catholic Question in America (1813). [Other citations and internal quotations omitted.]

Based principally on Hochul’s meanderings in, um, explaining her mandate, Gorsuch concluded:

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. 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.

Gorsuch explained why the mandate’s lack of neutrality toward religion — indeed, its animus — meant that the state needed to satisfy the Court’s demanding “strict scrutiny” test for state action that denies fundamental rights. Under that test, the state must establish that its law serves a compelling interest and employs the least restrictive means of doing so.

As he had in Mills, Gorsuch assumed for argument’s sake that the state’s interest was compelling. On this score, he referred without elaborating to the dissenters’ previously expressed skepticism about “indefinite states of emergencies” in which states continue to imperil civil liberties even when circumstances change for the better.

There was no need to tarry on this point, the justice opined, because the state patently failed to show, or even try to show, that it had adopted the least restrictive alternative. Nearly every other state, including those that impose some form of mandate, “has found it can satisfy its COVID-19 public health goals without coercing religious objectors to accept a vaccine.” Moreover, while Maine, in Mills, at least attempted to quantify a vaccination rate that it believed it needed to achieve among health-care workers to protect against an undue number of breakout cases, New York did not even suggest “that accommodating the religious objectors before us would make a meaningful difference to the protection of public health.”

I will close by reiterating my already expressed concerns that the putative constitutional-conservative Supreme Court majority increasingly appears overly concerned with proving that it is not partisan or ideological . . . even if that means avoiding correct rulings that would prompt the media-Democrat complex to say mean things about them. During our TMR podcast a couple of weeks ago, I acknowledged to Rich that, here at NR, I am the house pessimist on Dobbs. No matter how much I’d like to, I find myself unable to share my colleagues’ sense that Roe and Casey are finally going to be scrapped because they are indefensible as constitutional law. If you wonder why, this is why.