The Vaccines and Government Religious Bigotry

01-02-2022Weekly Reflection

Catholic journalist Philip Lawler has written an essay called Justice Gorsuch in dissent against religious bigotry. You can read it here: 

Some bullet points from the essay:

  • Governor Hochul has laughed off the religious-freedom claim, announcing that no “sanctioned religious exemption from any religion” would be allowed. -There are Catholic prelates and theologians who argue—persuasively—that the use of vaccines developed using fetal cell lines is ethically unacceptable.
  • The Congregation for the Doctrine of the Faith has emphasized that vaccination must be voluntary.
  • Mr. Lawler didn’t mention this but the Fifth commandment requires that a person use ordinary care to preserve their lives and this includes what treatments or medicines to take or not take based on medical advice and the risks involved. Neither Hochul or the federal government has been up front about the risks involved associated with the various vaccines.
  • The Governor has said: “You know theres people out there who aren’t listening to God and what God wants. You know who they are.” She’s making an argument based on religious values although she cannot by any stretch of the imagination know what people aren’t listening to God or what God wants.

Journalist Philip Lawler notes: That last phrase—“You know who they are”—strikes an ominous note. Is the Governor encouraging the people of New York to look with suspicion on those who wish to claim religious exemptions? Is she setting them up to be rejected as enemies of the people? Is it not enough that, under her mandate, they would lose their jobs—and be ineligible for unemployment benefits? The Hochul mandate looks like a policy designed to punish religious dissenters. He urges that people read Judge Gorsuch’s dissent in a case called: DR. A, ET AL., APPLICANTS v. KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL. ON APPLICATION FOR INJUNCTIVE RELIEF

Some highlights from the Gorsuch-dissent:

The doctors and nurses who filed this suit and a companion case have gone to great lengths to serve their patients during the COVID–19 pandemic. Dr. J. is an OB/GYN who works in a New York hospital. She is also a devout Catholic. During the pandemic, she has consistently treated patients infected with COVID–19 in spite of the risks to herself. Sometimes, in emergencies, she has had to rush into a delivery room without knowing whether a delivering mother is infected with the disease. Dr. J. has done all this even while pregnant herself. These applicants are not “‘anti-vaxxers’” who object to all vaccines.

The Free Exercise (of religion) 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.

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.

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 undermine rather than advance the State’s case.

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. The evidence before us shows that employee vaccination rates in the State’s healthcare facilities already stand at between roughly 90% and 96%.

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)