Neil Gorsuch's terrifying paragraph
I am terrified by a paragraph that Supreme Court Justice
Neil Gorsuch wrote a few weeks ago. You should be, too. He and two other justices think the Constitution forbids states from imposing, on religious dissenters, the kind of vaccination requirements that freed the United States from diphtheria, measles and polio. If these judges have their way, those diseases may come back.
A bit of background. In June, Justice
Samuel Alito, joined by Gorsuch and Justice
Clarence Thomas,
declared that the Free Exercise Clause of the First Amendment should be understood to hold “that a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest.” The compelling-interest test is, the court has
said, “the most demanding test known to constitutional law.” It means that a right has been infringed, the party challenging the law will probably win and government has a heavy burden of proof.
Now here is the paragraph. In October, the court
declined to block Maine’s requirement that health care workers be
vaccinated against the coronavirus notwithstanding their religious objections. Gorsuch, dissenting (joined by Thomas and Alito), wrote the following:
"I accept that what we said 11 months ago remains true today — that 'temming the spread of COVID–19' qualifies as 'a compelling interest.' At the same time, I would acknowledge that this interest cannot qualify as such forever. Back when we decided Roman Catholic Diocese, there were no widely distributed vaccines. Today there are three. At that time, the country had comparably few treatments for those suffering with the disease. Today we have additional treatments and more appear near. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency."
It is hard to know what future Gorsuch imagines. When he wrote that, COVID-19 was killing 1,000 Americans
every day. The wonderful new interventions he cites so triumphantly have been less successful than everyone had hoped, in large part because of the very vaccine resistance he is trying to abet.
Gorsuch is, one hopes, not fool enough to think that the disease is about to be eradicated. If that is right, then he can only mean that the level of death will decline to a point that is acceptable to him — so acceptable that the state will no longer have a compelling interest in preventing those deaths, and he will vote to order religious exemptions even if the state proves that people will die as a result. (Are you terrified yet?)
The accuracy of his final sentence is beyond question; its relevance is doubtful. Must an indefinite state of emergency exist before the state can require health care workers, who are in daily contact with very vulnerable people, to be vaccinated against deadly plagues that they might transmit to those people? How about requiring children to be vaccinated before they attend school?
Right now, there are not five votes for the mandatory-accommodation regime that Gorsuch, Alito and Thomas want. But Justices
Brett Kavanaugh and
Amy Coney Barrett have been willing to
aggressively deploy religious liberty arguments to constrain anti-COVID-19 measures, and in the Maine case they said nothing to distance themselves from Gorsuch’s argument.
Gorsuch argued that the Maine regulation discriminates against religion because it grants medical but not religious exemptions. The court’s conservative majority has been aggressive in discerning such discrimination whenever a law has any nonreligious exemptions.
There are good public health reasons for Maine’s policy, to which Gorsuch seemed
oblivious. But if his reading of the Free Exercise Clause prevails, it won’t matter whether anyone else is excused. Religious exemption will be a constitutional right. As the crazy anti-vaccination ideology
increasingly takes over the Republican Party, we can expect many to exercise that right, sincerely or
otherwise.
One of the principal attractions of the idea of religious liberty has always been that the exercise of one person's religion doesn't hurt anyone else. In Thomas Jefferson's classic formulation, "It does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." Now, however,
the pickpockets and leg-breakers are in charge.
One of the principal attractions of the idea of religious liberty has always been that the exercise of one person’s religion doesn’t hurt anyone else.
thehill.com