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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