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Supreme Court Refuses To Halt NY State Healthcare Worker Vaccine Mandate Lacking Religious Exemption

Supreme Court Refuses To Halt NY State Healthcare Worker Vaccine Mandate Lacking Religious Exemption

Gorsuch dissent: “Those who cite medical reasons are exempt. But no comparable exemption exists for individuals whose sincere religious beliefs prevent them from taking one of the currently available vaccines. It seems New York is one of just three States to have a scheme like this.”

It’s getting harder and harder to expect that the Supreme Court will protect religious liberty against relentless attack from Democrats. Today brings another example, with SCOTUS declining to issue a stay of a NY vaccine mandate for healthcare workers that lacks a religious exemption. The exemption was recently removed.

The case is Dr. A. v. Kathy Hochul (who replaced Andrew Cuomo when he resigned). Justices Thomas, Alito, and Gorsuch would have granted the application. That’s it. No Kavanaugh. No Barrett. And of course, No Roberts. Needless to say, the “liberal” block didn’t break ranks, they almost never do.

Here are excerpts from the Dissent authored by Gorsuch and joined by Alito. First, the background on the case:

New York recently issued a regulation requiring healthcare workers to receive a COVID–19 vaccine. Those who cite medical reasons are exempt. But no comparable exemption exists for individuals whose sincere religious beliefs prevent them from taking one of the currently available vaccines. It seems New York is one of just three States to have a scheme like this. And it seems originally even New York was headed in a different direction. When it announced the mandate, the then-Governor promised a religious exemption. Weeks later, the State backtracked. It offered no scientific evidence, or even a written explanation, for the decision. But a new Governor who assumed office around the same time spoke about it. The new Governor announced that the decision to eliminate the exemption was “intentiona[l]” and justified because no “organized religion” sought it and individuals who did were not “listening to God and what God wants.” Now, thousands of New York healthcare workers face the loss of their jobs and eligibility for unemployment benefits. Twenty of them have filed suit arguing that the State’s conduct violates the First Amendment and asking us to enjoin the enforcement of the mandate against them until this Court can decide their petition for certiorari.

Respectfully, I believe they deserve that relief.

The plaintiffs asserted good faith religious belief exemptions:

These applicants are not “‘anti-vaxxers’” who object to all vaccines. Complaint in No. 21–CV–01009 (NDNY), ¶ 37(g). Instead, the applicants explain, they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing. The applicants acknowledge that many other religious believers feel differently about these matters than they do. But no one questions the sincerity of their religious beliefs….

New Gov. Kathy Hochul, who seems like a really terrible person, then intentionally removed the religious exemption. Gorsuch documented numerous statemend by Hochul expressing disbelief that the doctors were really good Catholics in keeping with the Pope’s edicts on vaccines, and then:

Around the same time, Governor Hochul also announced that New York would alter its unemployment insurance scheme. Healthcare workers who failed to comply with the mandate would not only lose their jobs; they would be per se ineligible for unemployment insurance benefits.

District Courts split on the issue, but the Second Circuit rejected the doctors’ application, leading the case into an application to SCOTUS for a stay of the law. Gorsuch wrote:

Accordingly, before us the parties’ fight focuses dominantly on whether the applicants are likely to succeed on the merits of their First Amendment claim.

The answer to that question is clear. 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.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990). 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.” Id., at 877–878. 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. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). To meet its burden under strict scrutiny, the government must demonstrate that its law is narrowly tailored to serve a compelling state interest. Id., at 531–532. Applying these principles to this case, New York’s mandate falters at each step….

New York’s mandate is such an action. The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face. At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate “left off ” a religious exemption “intentionally.” The Governor offered an extraordinary explanation for the change too. She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.” Then the new Governor went on to announce changes to the State’s unemployment scheme designed to single out for special disfavor healthcare workers who failed to comply with the revised mandate. 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. Id., at ___ (slip op., at 17). 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.

NY’s justification was BS (my term) Gorsuch found:

Maybe the most telling evidence that New York’s policy isn’t narrowly tailored lies in how unique it is. It seems that nearly every other State has found that it can satisfy its COVID–19 public health goals without coercing religious objectors to accept a vaccine. See Addendum to Application for Injunctive Relief. Nor has New York “offer[ed] persuasive reasons” why it, almost uniquely, cannot do the same. Holt, 574 U. S., at 369. To the contrary, as we have seen, what explanations the Governor has chosen to supply undermine rather than advance the State’s case. Though this alone is sufficient to show that New York’s law is not narrowly tailored, still more proof exists. In a similar case, Maine recently argued that it needed a 90% vaccination rate among workers in each of its healthcare facilities to protect against an undue number of COVID–19 breakout cases. Mills, 595 U. S., at ___ (opinion of GORSUCH, J.) (slip op., at 7). By contrast, in the case before us, New York has not even attempted to identify what percentage of vaccinated workers it thinks is necessary to protect public health.

In conclusion, Gorsuch conclude his (conservative) colleagues were wimps (my paraphrase and words):

Still, it seems the old lessons are hard ones. Six weeks ago, this Court refused relief in a case involving Maine’s healthcare workers. Mills, 595 U. S. ___. Today, the Court repeats the mistake by turning away New York’s doctors and nurses. We do all this even though the State’s executive decree clearly interferes with the free exercise of religion—and does so seemingly based on nothing more than fear and anger at those who harbor unpopular religious beliefs. We allow the State to insist on the dismissal of thousands of medical workers—the very same individuals New York has depended on and praised for their service on the pandemic’s front lines over the last 21 months. To add insult to injury, we allow the State to deny these individuals unemployment benefits too. One can only hope today’s ruling will not be the final chapter in this grim story. Cases like this one may serve as cautionary tales for those who follow. But how many more reminders do we need that “the Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis . . . may suggest”? Downes v. Bidwell, 182 U. S. 244, 384 (1901) (Harlan, J., dissenting).

How expectedly disappointing. Doesn’t bode well for a host of other cases.


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It is a sign of how conservatives’ horizons have become so shrunken that we actually celebrated Brett Kavanaugh and Amy Coney Barrett being elevated to the Supreme Court.

I was suspicious of how the Franz von Papen Republicans in the Senate – who delighted in obstructing President Trump and who colluded with the Communists to steal last year’s election – were suddenly and mysteriously so eager to have ACB and Kavanaugh on the Court. Having a lefty kook like Lindsey Graham on your side is a warning that something is seriously wrong.

    Once again, to discuss this in terms of Dem vs Rep, lib vs con, or any other phony construct is a THE KEY REASON why we keep losing. It’s beyond the Uniparty too. This is GLOBAL. The entire global power structure has fallen in line with globalism and language, borders, constitutions just don’t matter. We are being fed crap in the way that WE insist on receiving it – in terms of our own own choice.

    Free people are now faced with the stark choice of good vs evil. We deserve to be where we are because of the brain-dead practice of going with the lesser of two evils. We are mice forever trapped in a maze and because we decide based on the path of least resistance, we are incapable of even recognizing that we are in a maze.

    We got into this maze because we keep compromising away our freedoms and now we aren’t even willing to fight for them because we apparently become too cowardly to call out evil for what it is— EVIL!

    If you think this is the hard part of where are journey is going to end and all of this will just eventually blow over, you will die in the maze. Try something else! We don’t need the Republican nor Democrat parties. We don’t need the pope or any of the other “spiritual” leaders (I am not an atheist). We need to simplify by returning to our most basic values rooted in the traditional God, family, community and ???country??? paradigm and reject all of these complexities that make no sense whatsoever but bog us down trying to explain that we aren’t bigots or whatever. The endless pedantry is killing us.

      Don’t you think good, Constitutionally attuned leadership is needed? Are you and your next door neighbors going to make policy on your own?

        You missed my central point completely. Start knocking walls down. The biggest wall confronting us right now is the GOP that keeps the Democrat socialism in place. Start by knocking down THAT wall instead of using it as the path of least resistance. They keep kicking us in the face and we keep giving them one more change because that is the path of least resistance.

        YOU get out of YOUR maze! There is nothing to talk about until we ALL agree that is OUR main problem and fight our way out of our personal maze. See you on the other side. Until then, there is nothing we can do.

        The only way you’re going to get “good, Constitutionally attuned leadership” is by changing the minds and hearts of the electorate. Which only happens if you get out and evangelize your neighbors (for one).

          Yep, we have to get our own houses in order and THEN find others who have also. Just voting Republican is NOT going to get it done. Here is a guy who gets it:

          He is fighting EVIL and says so. And he is describing a path that WILL break down the walls and starting with the GOPe.

          We MUST get out of the “lesser of two evils” maze and step one is to recognize that we are in one. We do have more than two options but the non-evil option needs clarity of mind and resolve. We don’t have that. For too many here, the attitude is “we can’t win”. Well we can’t win if we can’t even muster up the courage to ditch the masks and keep listening to squishes who have stabbed us in the back many times already. How did Rubio suddenly become such a guy? He’s one of McConnell’s reliable “Gang of Nineteen” who ALWAYS snatch defeat from the jaws of victory. He is EVIL!

          I’ve been saying it for decades now but we will never defeat the evil without defeating the Democrats but we first must destroy their protectors: the Republican Party. Yet all we every talk about is “those Demonrats”. It is just too easy to kee[ us mice forever scrambling frantically through our mazes and refighting the same fights over and over again and going nowhere. We are heading into a Red Wave year while most of us have lost our focus. A Red Wave that merely results in expanding McConnell’s Gang of Nineteen power is a fatal step in the wrong direction. We need to get our heads right and right now, we are the epitome of The Stupid Party. “We have met the enemy and it is us.”

I was misled by the GOP.

As always, thanks, Mitch and The Federalist Society! That 6-3 conservative court is going swimmingly. I feel totally confident in the 2A cases coming up. 🙄

The left sure jumped quickly from “Conservatives are lying about death panels” to “Inject this or we’ll leave you to die in the hospital”

On the positive side: This could help Florida with its doctor shortage.

I’m amazed that nobody on the court commented on Kathy Hochul’s ungodly predilection to interpret what religious leaders are telling their flocks, or even to enumerate which religious leaders’ doctrines were governmentally approved and which were not. Because it sounds suspiciously like an “establishment of religion” by the state.


This is a disappointing and a bad decision because it unduly restricted free exercise of religion

A mandate, a prescription, a behavioral protocol, a mortal god (or goddess) decrees that thou shalt take a knee. There will be no religious exemptions to their religion, not for safety, efficacy, or conditional risk.

    GWB in reply to n.n. | December 14, 2021 at 9:18 am

    There will be no religious exemptions to their religion
    Now you’re getting it (emphasis added). Progressivism is a religion, counter to Christianity (and a heresy of it) and doing a good job of displacing it – without and within the Christian churches. It’s been a 150+ year long project to build their tower to heaven, and it’s succeeding.

    You will not be allowed to opt out of their religion.

goddessoftheclassroom | December 14, 2021 at 6:09 am

I received the J&J vaccine in March because I honestly thought it was the way forward. Naively, I NEVER dreamed that fetal stem cells were involved; as a matter of fact, when I first heard of that, I thought it was propaganda.
I will not receive a booster. The fact that the vaccine is ineffective and potentially dangerous is beside the issue.

The new Governor announced that the decision to eliminate the exemption was “intentiona[l]” and justified because no “organized religion” sought it and individuals who did were not “listening to God and what God wants.”

How does she know what God is saying or thinking? That is a head scratcher for sure, and it is terrifying.

Bucky Barkingham | December 14, 2021 at 7:42 am

So much for the “Conservative SCOTUS majority” that the Left complains about. Barrett and Kavanaugh are closer to Roberts than to the three Conservative Associate Justices.

Just so little courage . You knew we were in trouble when Feinstein was gushing all
Over “Amy”
She has been the worst after Roberts

    I want to allow that a summary judgment on Barrett may be premature but very tempting. And, note what several pediatricians have shared over the decades: “With every additional child the woman loses ‘gray matter’.”

The new Governor announced that … individuals who did were not “listening to God and what God wants.”
WHOAH!!! So, she’s telling me what my god says?! And who made her my pastor or bishop or pope – on top of being governor?!
That statement, in and of itself, should have the entire mandate thrown out and allow for lawsuits against her under the First Amendment for “establishment”!

SCOTUS doesn’t need to be packed, it needs to be cleansed.

(And, of course, no religious exemption has to be endorsed by a “major religion” or an official church body – that’s well-established law. Heck, it doesn’t even have to be proven to anyone’s satisfaction except the petitioner’s own conscience.)

You can blow a gasket all day but the fact remains it was the dumbest female ever to serve a member of the court that rejected this, not the entire SCOTUS.

She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.”

She is apparently unaware that Protestants do not recognize the authority of the Pope, nor that the Pope as head of Catholicism reflects a mere 1/3 of Christians in the US: that 2/3 of Christians in the US reject the authority of the Pope. (HINT: that’s why we’re Protestants.

If only there were an actual legal definition of “religion” in the US Code, tested by “case law”, … The People could refer to that definition, cite the “government” as having been found in “laws (statute, case, regulatory, administrative, executive, military, etc.) respecting an establishment of religion”, and be certain of their actions to summarily abolish that “established religion” including banishing its clergy, functionaries and laity.

What “religion” you ask: the convergence of “utilitarianism”, “eugenics”, “hedonism”, the “occult”.

Moral: The Supremes won’t be rescuing us from government overeach except in rare cases. One reason is that the best nominees can’t get confirmed anymore, so we settle for barely adequate or less. Normally, voters could fix this Congress problem, but voting and tabulation abuses don’t excite the Supremes much. Thus, the corrupted system stays in place. All its players do very well; us not so much.

    TargaGTS in reply to RAM500. | December 14, 2021 at 4:40 pm

    I strongly suspect Janice Rogers Brown would voted with Gorsuch et al. on this particular case. She has a robust record of opposing government overreach. I don’t know enough about Miguel Estrada to have an opinion on his individual liberty bona fides. But, it’s hard to imagine he would have been worse than Roberts and his two new minions.

I’m not even a tiny bit religious, but I believe very strongly in religious belief (or personal ethics) exemptions. I”m vaccinated and believe that everyone should be encouraged to get vaccinated too.

Even as a non-believer, I find it patently offensive that government officials are even joking about knowing “what God wants”. The New York Governor’s actions are an explicit violation of the Establishment Clause.

OK then its settled. Muslims are not allowed to wear Burkas In Public to hide their face. Lets see if that rolls

I see this as a much broader problem than religious objections. Government was never intended to be a medical tyranny, and I see no legitimate constitutional foundation for any level or branch of government to force anyone to submit to any medical treatment they don’t want (or to coerce them into accepting it, or punish them if they don’t, etc.) — or to prohibit any treatment they think might be helpful.

Government should simply not be involved in anything more than an advisory capacity, except for its power of quarantine in the case of highly contagious and deadly disease (which the present virus is not).

    TargaGTS in reply to Bisley. | December 14, 2021 at 4:45 pm

    I agree. I might have a slightly different opinion if this were a virus with a 50% or better infection fatality rate AND the ‘vaccines’ actually worked in the way vaccines have always traditionally been thought to work; by preventing infection.

    But, this is a virus where at least 99% of the people survive and the vaccines do a poor job of preventing both infection and spread. The seminal study on COVID transmission for vaccinated vs. vaccinated demonstrated that the difference in transmission between the two cohorts is very modest.

    I don’t think we should be violating First Principles over a virus that is only negligibly more dangerous to the average person than the seasonal flu is and for a vaccine that has questionable efficacy.

      Bisley in reply to TargaGTS. | December 14, 2021 at 9:37 pm

      Right. And even if the disease was killing half the people infected and the vaccine prevented infection, there still is no justification for forced vaccination. In those circumstances there would be no need of threats, bribes, or government orders for the great majority to seek a vaccine that would protect them, and anyone who chose not to would be within their rights and risking only their own lives. If the vaccine is good,the vaccinated are protected, and the unvaccinated have voluntarily assumed a risk that doesn’t involve others.

      Arminius in reply to TargaGTS. | December 14, 2021 at 10:03 pm

      I am a Christian. How on earth that became “anti-science” I’ll never know. When you look at the history of science, studying the natural world was a form of worship. Is a form of worship. God created the universe. We are created in the image of God. When we study the universe we are looking into the face of God.