On December 13, 2021, the US Supreme Court denied injunctive relief in Dr. A v. Hochul. This post is meant to summarize the dissent, follow up on an earlier post, and track the arguments. (The Court also held oral arguments in two federal mandate cases on January 7, one of which applies to healthcare workers, Biden v. Missouri.) New York’s booster mandate for healthcare workers also does not include a religious exemption.
This is the same graphic used in a previous post:
As noted, I have no skin in the game, but I do sense that the political consequences of requiring vaccines without religious exemptions would be noteworthy and would benefit the most far-right American rights enthusiasts. I am hugely in favor of some reasonable religious exemptions, yet I also like the application and logical reasoning of Employment Division v. Smith because I firmly believe the religious should not be entitled to a pass on the many responsibilities required by membership in society. To clarify, I like the Smith holding that laws that are neutral and generally applicable should not face strict scrutiny, but I see a likelihood that Smith will be narrowed and eventually overruled. I also think accommodating the religious when it makes sense to do so should be a priority and is a foundational concept in US democracy. The pandemic, however, poses special risks to accommodating religious exemptions to public health laws.
What You Say Can Be Used Against You
The quite predictable 14-page Justice Neil Gorsuch dissent highlights the governor’s language concerning the vaccine mandate and encouraging those refusing vaccination for religious reasons to get the vaccine. I cringe a bit when the bioethics community (much like Governor Hochul) suggests that one is not properly following one’s own religious leaders or doctrine. I find that beside the point and an attempt to assign rationality to something not steeped in logic. The constitutional arguments, especially considering so much developing caselaw, do not turn on how logical the religion is or on whether a believer follows a religion in the way in which religious leaders intend.
Gorsuch aptly points out that Governor Hochul was aware that people would likely refuse vaccination for religious reasons, and she sought to reframe their religions as pro-vaccination. As predicted, much of the discussion and messaging in the bioethics and public health community opened the possibility that those challenging the New York healthcare worker vaccination mandate would argue that the law mandating vaccination and excluding a religious exemption was designed partly or wholly to coerce the religious. That is, it seems quite possible to conclude that the unvaccinated might be primarily those whose religious beliefs prohibit vaccination and that lawmakers were aware of that. Whether the law targets the religious purposely would be a question of fact.
Another Round of the Effects Argument
Gorsuch also restated his own position from Does v. Mills: he asserts that the effects of being noncompliant (unvaccinated) would be the same whether one is unvaccinated for a medical or a religious reason. He cites Fulton v. Philadelphia and Does v. Maine. Two older cases that address whether the existence of a medical exemption is a catalyst for requiring a religious exemption concern a requirement to be clean-shaven in prison. One court held that if there is a medical exemption there must also be a religious one (Fraternal Order of Police v. Newark, 170 F. 3d 359 (3d Cir. 1999)) and another court held not so (Hines v. South Carolina Department of Corrections, 148 F. 3d 353 (4th Cir. 1998)). The cases differed only in that in one case the rule’s goal was complete uniformity, a goal undermined in the same way by medical and religious exemptions (FOP v. Newark), and in the other, case, the goal was discipline and safety (Hines) and the law was constitutional as neutral under Smith.
To me, the Gorsuch focus on the effects of the exemption should be rebuked by the argument that a medical exemption has a different purpose and that eliminating it would require asking some people to take a risk that is both larger and of a different type than the general population while the religious would be asked to take the same risk as the general population. The clean-shaven requirements did not pose a different risk profile — those cases do not apply well to vaccination mandates. Even without strict scrutiny, the law without a religious exemption could still be held unconstitutional. Gorsuch did note quite high vaccination rates among New York healthcare facilities (90 to 96 percent) but he did not address the possibility that certain facilities have lower healthcare worker vaccination rates. Nonetheless, a law with a medical exemption that is more specific and lists criteria would be more likely to stand. Individualized exemptions are more vulnerable to the reasoning that a religious exemption must be considered with all other exemptions. (For example, see Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996).)
I find the Gorsuch logic to be akin to saying that people going out unmasked knowing they are COVID-positive is no different from going out unmasked and unknowingly COVID-positive. Both people would pose the same risk to society, yet no one would argue that both instances are the same or equally morally permissible. While that is not a religious circumstance (although it could be adapted to be one) it is a comparable scenario in which the same action is morally different despite having the same effect. Requiring a religious person with no special physical risk to be vaccinated is morally different from mandating that a person at a high medical risk (e.g., severely allergic to the vaccine) be vaccinated. The reason for the exemption is the key difference and should not be disregarded in the analysis.
A “Numbers Game”
Gorsuch addresses the argument that a religious exemption could lead to many more unvaccinated people, saying it is not “a numbers game” and that the adoption or absence of religious exemptions should not turn on numbers. Yet he does suggest that if the court is to consider the numbers at all, they would do so only in a strict scrutiny analysis. I would assume that in the pandemic, numbers are highly relevant. Vaccination usually is a numbers game quite rightly. One of many secondary reasons we do not allow religious exemptions from paying taxes (for example, if someone refuses because they feel the money might support a war) is arguably that people would opt out of something fundamentally important to society and that if all religious people were to do so, the tax base would suffer more.
Gorsuch’s strength is likely that a tight causal connection to an important goal may be difficult to establish and his acknowledgement that religion is not expected to be logical. Religion can seem “strange and bewildering”. Religious exemptions to similar laws in other states exist. To me the biggest weaknesses in the Gorsuch dissent are his continuing to emphasize the sameness of the effect of remaining unvaccinated while dismissing the relevant practical and ethical distinctions. His attempt to make the numbers irrelevant is also a stretch. He even suggests that if the numbers of those seeking exemptions were large that denying some medical and some religious exemptions would be appropriate. It most certainly would not!
For additional background please see Zimmerman, A. “Religious Exemptions: Application of Employment Division V. Smith to COVID-19 Vaccination Mandates”. 2021. Voices in Bioethics, vol. 7, Nov. 2021, doi:10.52214/vib.v7i.8814.
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