On New York vaccine mandate, Gorsuch’s religious liberty maximalism comes up short

But the Supreme Court's free exercise jurisprudence needs fixing.

The majority opinion was delivered by Associate Justice Neil Gorsuch. (AP Photo/J. Scott Applewhite)

(RNS) — On Monday (Dec. 13), as the omicron variant of COVID-19 spread across the country, the Supreme Court refused to block New York state’s vaccination mandate for health care workers, which includes a medical exemption but not a religious one. The mandate is being challenged by two groups of health care workers who believe that being vaccinated against the virus violates their free exercise rights. 

The court’s decision is in line with longstanding precedent allowing governments to enforce mandatory vaccination laws and follows its refusal to block a similar Maine mandate in October. Both cases were decided 6-3, with Neil Gorsuch, Samuel Alito and Clarence Thomas dissenting. The majority provided no written explanation, but what makes the cases worth pondering is the religious liberty maximalism set forth in the dissenting opinions by Gorsuch.

The New York health care workers oppose being vaccinated because the three COVID-19 vaccines available in the U.S. were developed or tested using cells descended from aborted fetal cells obtained half a century ago. As Catholics they acknowledge that many of their bishops, up to and including the pope, say it’s all right to receive the vaccines. But they note that other bishops have taken a contrary position and declare that their decision is, in any event, based on “the primacy of conscience.”

Claiming that they do not oppose vaccination in principle, they nevertheless open the door to anti-vaxxers of all stripes, i.e.:

(T)hey believe as a matter of religious conviction that the ensouled human person, made in the image and likeness of God, is inviolable as a temple of the Holy Ghost and that civil authorities have no right to force anyone to be medicated or vaccinated against his or her will, whether or not the medication or vaccine is abortionconnected.

Gorsuch’s argument boils down to claiming that the mandates are not generally applicable. Under “Employment Division v. Smith” (1990), in order to withstand a free exercise challenge, state laws must be “neutral and generally applicable.” That means, according to the court’s latest interpretation, that such laws can’t treat any comparable secular activity more favorably than religious exercise.”

Gorsuch thus is claiming that a religious objection to a COVID-19 vaccination is comparable to a doctor telling you not to get vaccinated.

That this claim was rejected by most of his colleagues, including conservative newcomers Brett Kavanaugh and Amy Coney Barrett, is not hard to figure. Does the court really want to be saying that exempting those determined to be physically at risk from a vaccine is, to all judicial intents and purposes, equivalent to exempting those who believe they are spiritually at risk?

What’s clear, nevertheless, is that the court’s current criteria for judging free exercise claims leave a lot to be desired.

As we’ve seen in cases involving in-person worship during the pandemic, comparability is not only a standard that’s difficult to apply (is a church more like a a concert hall, a grocery store, a bowling alley, or a casino?), it’s a standard that people who believe religion should trump the secular won’t accept.

On top of that, the only criterion the courts can use to determine the legitimacy of a religious belief is sincerity. What if someone sincerely believes something that is demonstrably untrue?

In her concurrence in “Fulton v. Philadelphia” last June, Amy Coney Barrett suggested the need for a “more nuanced” approach to free exercise cases. I heartily concur.

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