Every time I begin to feel optimistic about the fate of Roe, I recall that this Supreme Court can’t seem to grasp the basic freedom of religious expression. This court took three tries before finally ordering lower courts to toss out COVID-19 operating restrictions that imposed more restrictions on houses of worship than on houses of merchants. Yesterday, the same justices refused to block Kathy Hochul’s vaccine mandate in New York despite its lack of religious exemption — and Hochul’s explicit hostility to religious expression in support of the mandate.
Only three justices dissented from the refusal to order an injunction:
The U.S. Supreme Court has denied a request to block New York’s vaccination mandate for health care workers because it doesn’t have a religious exemption.
The court announced its ruling Monday afternoon in a brief, unsigned order. Three of the court’s six conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — dissented, saying they would grant relief. …
More than a dozen medical professionals and We the Patriots USA, Inc. sued the Hochul administration over the mandate, which covers patient-facing staff in hospitals, nursing homes and other medical facilities. They asked the court last month to block the state from requiring those who were previously granted religious exemptions to get vaccinated or show proof of a medical exemption.
Hochul was delighted:
Our greatest responsibility is to protect our most vulnerable. Ensuring that the health care workers who care for our loved ones are vaccinated is critical to keeping New Yorkers safe. https://t.co/1J6aqrjUKD
— Kathy Hochul (@GovKathyHochul) December 13, 2021
Neil Gorsuch was not delighted, as he explained at length. In the first place, a religious exemption would not have unduly burdened the state of New York, while a lack of such exemption clearly violates the constitutional rights of the objectors. (The plaintiffs cited the use of aborted babies in the development process of the vaccines.) Furthermore, Hochul’s execrable predecessor Andrew Cuomo had announced that the mandate would include a religious exemption, but Hochul deliberately stripped it out:
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.
New York’s regulation fares no better if the question is the law’s neutrality and general applicability. Begin with neutrality. Even absent proof of animus, a law will not qualify as neutral if a religious exercise is the “object” of a law and not just “incidental[ly]” or unintentionally affected by it. Smith, 494 U. S., at 878. At “minimum,” that means a law must not “discriminate on its face.” Lukumi, 508 U. S., at 533. Apart from that, it also means that a law will not qualify as neutral if it is “specifically directed at . . . religious practice.” Smith, 494 U. S., at 878; see also Lukumi, 508 U. S., at 535. For reasons we have already seen, New York’s mandate fails this test too. Rather than burden a religious exercise incidentally or unintentionally, by the Governor’s own admission the State “intentionally” targeted for disfavor those whose religious beliefs fail to accord with the teachings of “any organized religion” and “everybody from the Pope on down.” Even if one were to read the State’s actions as something other than signs of animus, they leave little doubt that the revised mandate was specifically directed at the applicants’ unorthodox religious beliefs and practices.
Failing both of these tests, the state of New York has to pass a strict-scrutiny test, Gorsuch explains later, to determine whether they have applied the most narrowly tailored policy possible to satisfy a legitimate state interest. Other states have issued mandates with exemptions, which makes New York’s failure on this test obvious on its face:
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. And even assuming New York could prove it needed to achieve a similar vaccination rate, the evidence before us shows that employee vaccination rates in the State’s healthcare facilities already stand at between roughly 90% and 96%. Brief in Opposition to Application for Injunctive Relief 14. Putting a finer point on it: New York has presented nothing to suggest that accommodating the religious objectors before us would make a meaningful difference to the protection of public health. The State has not even tried.
Most pointedly, Gorsuch blasts Hochul for her arrogance in telling objectors to obey those religious leaders friendly to her position:
Today, we do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that, “[i]f 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.” West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943).
And finally, Gorsuch turns his rebuke onto his own colleagues, citing the very failures I mentioned at the top:
We have already lived through the Gobitis-Barnette cycle once in this pandemic. At first, this Court permitted States to shutter houses of worship while allowing casinos, movie theaters, and other favored businesses to remain open. Falling prey once more to the “judicial impulse to stay out of the way in times of crisis,” the Court allowed States to do all this even when religious institutions agreed to follow the same occupancy limits and protective measures considered safe enough for comparable gatherings in secular spaces. Roman Catholic Diocese, 592 U. S., at ___ (GORSUCH, J., concurring) (slip op., at 5). But as days gave way to weeks and weeks to months, this Court came to recognize that the Constitution is not to be put away in challenging times, and we stopped tolerating discrimination against religious exercises. Tandon, 593 U. S., at ___ (slip op., at 1). Finally, churches and synagogues and mosques reopened on equal footing with secular institutions.
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).
The irony here is that hospitals and health clinics around the country have begun to roll back their own vaccine mandates in the face of other court losses. They are tossing in the towel because these mandates are unworkable and strip them of their ability to provide health care, as well as tie up their resources in court rather than use them to help patients:
Hospital operators including HCA Healthcare Inc. HCA 0.42% and Tenet Healthcare Corp. THC 0.70% as well as nonprofits AdventHealth and the Cleveland Clinic are dropping the mandates. Labor costs in the industry have soared, and hospitals struggled to retain enough nurses, technicians and even janitors to handle higher hospitalizations in recent months as the Delta variant raged. Vaccine mandates have been a factor constraining the supply of healthcare workers, according to hospital executives, public-health authorities and nursing groups.
Many hospitals already struggled to find workers, including nurses, before the pandemic. The shortages were compounded by burnout among many medical workers and the lure of high pay rates offered to nurses who travel to hot spots on short-term contracts.
More recently, thousands of nurses have left the industry or lost their jobs rather than get vaccinated. As of September, 30% of workers at more than 2,000 hospitals across the country surveyed by the Centers for Disease Control and Prevention were unvaccinated.
“It’s been a mass exodus, and a lot of people in the healthcare industry are willing to go and shop around,” said Wade Symons, an employee-benefits lawyer and head of consulting firm Mercer’s U.S. regulatory practice. “If you get certain healthcare facilities that don’t require it, those could be a magnet for those people who don’t want the vaccine. They’ll probably have an easier time attracting labor.”
The Supreme Court just made this problem even worse in New York. At some point, we will have to figure out how to live with COVID-19 and all its variants without locking people out of employment or violating their constitutional rights. Unfortunately, the Supreme Court still needs to learn that latter lesson.
So who’s still optimistic about Dobbs?
Update: I tip my hat to my pal Hugh Hewitt for his optimism:
I am very optimistic about Dobbs, and follow the religious liberty cases very, very closely. There are many reasons not to extrapolate from this dissent from review to despair about overturning Smith and to a return to the old pre-Smith test of burdens on religious liberty. Many. https://t.co/LHMqURMW3I
— Hugh Hewitt (@hughhewitt) December 14, 2021
He’s correct about those differences, but perhaps I didn’t make my entire argument clear. The court in this ruling errs on more than just religious grounds; as it did in the cases Gorsuch cites, it treats executive authority and popular hysteria preferably to individual constitutional rights. If this court can’t stand up against the Hochuls and Newsoms for religious liberty in such obvious applications, do they have the guts to overturn Roe? Color me skeptical.