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The Supreme Court docket handed down a short order Friday night — it’s actually only one sentence lengthy — denying aid to a gaggle of Maine well being care employees who object to the Covid-19 vaccine on non secular grounds. Because of this practically all employees in well being care services licensed by the state have to be vaccinated with the intention to preserve their jobs.
But, whereas this order, which can also be accompanied by a one-paragraph concurring opinion by Justice Amy Coney Barrett and an extended dissent by Justice Neil Gorsuch, is sort of temporary, it’s vital as a result of it means that there could also be some restrict to the conservative majority’s solicitude for non secular conservatives.
Earlier within the pandemic, the Court docket handed down a pair of selections that revolutionized its method to spiritual liberty instances and granted church buildings and different homes of worship broad exemptions from public well being orders supposed to manage the unfold of Covid-19. The Court docket’s Friday night determination in Does v. Mills, against this, seems to have been selected the narrowest attainable grounds. Although it’s a loss for the non secular proper, it isn’t an particularly vital one.
Maine requires practically all well being care employees to be vaccinated towards Covid-19. It argues that this requirement is critical as a result of these employees are unusually prone to work together with sufferers who’re weak to the illness, and since the state’s well being care system might probably be disabled if too many well being care employees are contaminated. The state does exempt a really slender slice of well being care employees, nonetheless: those that danger adversarial well being penalties if they’re vaccinated, corresponding to individuals with severe allergic reactions to the vaccine.
The plaintiffs argued that non secular objectors have to be exempted from this requirement as a result of the state additionally supplied an exemption to individuals who might endure well being penalties if they’re vaccinated — an argument that’s, at the least, believable underneath the Court docket’s current faith choices. They had been supported in an amicus temporary by the Becket Fund for Spiritual Liberty, arguably the nation’s most subtle regulation agency representing non secular proper causes.
In a dissent joined by Justices Clarence Thomas and Samuel Alito, Gorsuch basically agrees with the plaintiffs, making the case for granting a non secular exemption to the state’s vaccine mandate. Quoting Tandon v. Newsom (2021), one of many Court docket’s two current choices granting locations of worship an exemption from sure public well being guidelines, Gorsuch claims {that a} regulation is constitutionally suspect “if it treats ‘any comparable secular exercise extra favorably than non secular train.’”
Thus, underneath Gorsuch’s method, the state should exempt non secular objectors as a result of it has a single exemption — once more, for individuals who might endure severe well being penalties in the event that they obtain the vaccine.
Had Gorsuch’s method prevailed, it’s probably that non secular objectors could be exempted from practically any regulation. Velocity limits, for instance, usually exempt police, ambulances, and different emergency automobiles responding to an emergency. Even legal guidelines banning murder usually comprise exemptions for self-defense. (Though, in equity, Gorsuch concedes {that a} non secular exemption is inappropriate when the “challenged regulation serves a compelling curiosity and represents the least restrictive means for doing so.” So Gorsuch in all probability wouldn’t enable religiously motivated homicide.)
In any occasion, Gorsuch’s view didn’t prevail — although it’s removed from clear that it’ll not obtain 5 votes in a future case. Although Justice Barrett joined a majority of the Court docket in permitting Maine’s vaccine mandate to take impact, her opinion (which is joined by Justice Brett Kavanaugh) clarifies that she did so on exceedingly slender grounds.
Primarily, Barrett argues that the Supreme Court docket has discretion to resolve which instances it desires to listen to. And her opinion means that she would train her discretion to not hear this explicit case.
That’s in line with an method she specified by a 2017 essay, the place she argued that Supreme Court docket justices who encounter an argument that they suppose is legally legitimate however that may result in disastrous outcomes ought to train their discretion to not hear a case elevating that argument.
For now, at the least, the underside line is that Maine’s vaccine mandate is in impact. Public-facing well being care employees might want to obtain the Covid-19 vaccine except they’ve a medical excuse.
Once more, it’s not an enormous loss for the non secular proper. However the determination in Does suggests that there’s, at the least, some restrict to the Court docket’s willingness to carve out authorized exemptions for non secular conservatives.
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