The U.S. Supreme Court Monday afternoon rejected a request for a religious exemption for health care workers refusing to comply with New York State’s vaccine mandate. The state is requiring all health care workers to be vaccinated against the deadly coronavirus. Justice Sonia Sotomayor denied the request, but three conservative jurists, Clarence Thomas, Samuel Alito, and Neil Gorsuch, would have granted it.
The latter, Justice Gorsuch, cited an extremely narrow ruling in the Supreme Court case of an anti-gay Colorado baker, the Masterpiece Cakeshop case, in his dissent. The baker “won” his case because the court ruled local officials had displayed animus against the baker’s religion. Justice Gorsuch appeared to suggest New York’s requirement for all health care workers to be vaccinated was equally problematic.
“The legal challenge was filed by a group of 20 doctors and nurses who argued that the state’s vaccine mandate violates the First Amendment to the Constitution because it fails to include a religious exemption,” CNBC reports.
In what some may seem as a dangerous opinion and foreshadowing of similar ones to come, Justice Gorsuch says that those requesting the emergency exemption will suffer “irreparable injury” over their refusal to be vaccinated against the deadly coronavirus that to date has killed more than 800,000 people in the U.S. He made no mention of irreparable injury to the health care workers, to their families, co-workers, friends, or of course their patients should they contract and/or transmit the virus.
Justice Gorsuch writes: “no one seriously disputes that, absent relief, the applicants will suffer an irreparable injury. Not only does New York threaten to have them fired and strip them of unemployment benefits. This Court has held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'”
Here’s where Gorsuch appears to be paving the road for more faith-based decisions:
“The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in ‘the performance of (or abstention from) physical acts,'” he writes, citing case law.
“Under this Court’s precedents, laws targeting acts for disfavor only when they are religious in nature or because of their religious character are ‘doubtless . . . unconstitutional.'”
“As a result, where ‘official expressions of hostility to religion’ accompany laws or policies burdening free exercise, we have simply ‘set aside’ such policies without further inquiry. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18).”
“But even where such overt animus is lacking, laws that impose burdens on religious exercises must still be both neutral toward religion and generally applicable or survive strict scrutiny. … To meet its burden under strict scrutiny, the government must demonstrate that its law is narrowly tailored to serve a compelling state interest. Applying these principles to this case, New York’s mandate falters at each step.”
Gorsuch is stating that protecting the population from a quickly mutating and highly deadly virus in a two-year long pandemic is not “a compelling state interest.”
Harvard Law assistant professor Ben Eidelson weighs in on Gorsuch’s tactics: