Supreme Court’s Baffling Maine Decision

COMMENTARY: Given the court’s previous track record in defending religious freedom, we can at least hope that its Oct. 29 ruling isn’t the end of the story.

An anti-vaccine mandate rally is held in New York City Oct. 12 in support of teachers requesting a religious exemption from the city’s COVID-19 vaccine mandate.
An anti-vaccine mandate rally is held in New York City Oct. 12 in support of teachers requesting a religious exemption from the city’s COVID-19 vaccine mandate. (photo: Steve Sanchez / Shutterstock)

The U.S. Supreme Court — normally sympathetic to people of faith — has uncharacteristically fallen short of its obligation to protect religious freedom. On Friday evening, a surprising six-justice majority declined a request to block a Maine rule that requires certain health-care employees to be fully vaccinated against COVID-19 without any provision for religious exemptions.  

This past summer, Maine’s Democrat governor, Janet Mills, announced that the state would require certain health-care workers to be vaccinated against the virus by Oct. 1. Her spokesmen are quick to note that the state “has long required the immunization of employees” at health-care facilities in an effort to prevent the spread of “dangerous or easily transmissible contagions.” In September 2019, the Maine Legislature eliminated religious exemptions to vaccination requirements for health-care workers and mandated “the removal of religious exemptions from all Department vaccination requirements.” Interestingly, medical exceptions to the COVID-vaccine requirement are allowed. Mills’ office announced that it would begin enforcing the order on Oct. 29. 

A large group who opposed the mandate on religious grounds — numbering some 2,000 health-care workers — collectively filed a lawsuit. They believe that receiving the vaccines violates their faith because of what they think is an impermissible connection to cell lines from aborted children. 

These objecting workers argued that the mandate “completely removes any protections for Plaintiffs’ sincerely held religious beliefs” and “subjects them to especially harsh treatment” in violation of the First Amendment and Title VII, the federal employment law prohibiting discrimination based on, among other things, religion. 

In early October, a federal judge in Maine ruled against the workers. The court’s decision was affirmed by the 1st Circuit Court of Appeals. 

Supreme Court Justice Stephen Breyer, who handles emergency requests from cases originating from Maine, denied the workers’ initial emergency request on Oct. 19 “without prejudice.” Breyer referred their second application to the entire court for consideration. 

That’s not too surprising: The Clinton-appointed Breyer is generally regarded as a liberal. What is surprising is that joining the court’s liberal bloc of Justices Breyer, Sonia Sotomayor and Elena Kagan were Justices Brett Kavanaugh and Amy Coney Barrett. 

In a one-paragraph statement, Barrett wrote that she decided against the request for “extraordinary relief” in part because of a “discretionary consideration [which] counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.” 

Really? It’s not like this is the court’s first time reviewing pandemic-related restrictions on religious liberties. Over the past year and a half, the Supreme Court has reviewed multiple challenges. None had the benefit of full briefing and oral argument. 

Of course, the court hasn’t found it easy to cope with the ever-shifting legal challenges produced by COVID. 

At the beginning of the pandemic, it was reluctant to hear emergency challenges to state and local restrictions on religious worship. A 5-4 majority, for example, declined to order emergency relief in a challenge to California’s restrictions in May 2020. Two months later, the court again refused to halt Nevada’s restrictions on houses of worship. In both cases, the court’s originalists — Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh — would have granted injunctive relief. 

By the fall of last year, however, the court had changed course — and, not coincidentally, its composition, with the addition of Barrett. 

On the eve of last Thanksgiving, the court  enjoined  New York’s then-governor, Andrew Cuomo, from enforcing an executive order that imposed very severe restrictions on attendance at religious services in critical areas of the state affected by the coronavirus. California’s and Nevada’s restrictions were struck down soon thereafter. And this past April the court granted relief from California’s pandemic-related regulations governing public gatherings. 

Given the Supreme Court’s recent record in reviewing emergency requests for relief from COVID restrictions that impinge on religious freedom, what are we to make of Friday’s order? Andrew McCarthy, writing in National Review, scathingly called it a discretionary decision to “duck a case.” 

Thomas, Alito and Gorsuch would have stopped enforcement of Maine’s vaccine mandate while the appeals process plays out. Gorsuch’s thoughtful dissenting opinion recognized the workers’ compelling reasons for immediate relief. For starters, he pointed out that the mandate is not without exemptions. 

“It seems Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms,” he wrote. The mandate, therefore, is subject to “strict scrutiny” — a most exacting standard of judicial review. Gorsuch agreed: “The state must prove its law serves a compelling interest and employs the least restrictive means available for doing so.” 

For purposes of resolving the workers’ request, Gorsuch and company accept that “stemming the spread of COVID-19 qualifies as a compelling interest.” He is quick to interject that “this interest cannot qualify as such forever.” More critical is the fact that “Maine does not explain how denying exemptions to religious objectors is essential.” In fact, Gorsuch contends, this ”borders on the irrational.” 

Although unable to convince his colleagues to grant emergency relief to objecting Mainers, Gorsuch’s analysis offers an important blueprint for reviewing the Maine case — and others — on the merits. 

Gov. Mills’ decision to press forward with her vaccine mandate tells us something very alarming about the importance of religious freedom for certain bureaucratic regimes — that is, that they don’t regard it as remotely important. 

Fortunately, as Becket law group explained in its amicus brief to the court, Maine is a bit of an outlier. An overwhelming majority of states with similar mandates provide religious exemption. Still, Mills is not alone. 

Former New York Gov. Cuomo put in place a health-care worker vaccine mandate that also does not allow for religious exemptions. Friday night the 2nd Circuit Court of Appeals lifted injunctions halting enforcement of the Cuomo mandate. Lawyers representing the objecting New Yorkers have vowed to take the case to the Supreme Court. 

Health-care workers with religious objections to existing vaccines should never have to face the untenable choice of either submitting to be vaccinated against their sincerely held religious beliefs or losing their jobs. That this Supreme Court has allowed a draconian vaccine mandate to take effect is a baffling development. Since this was not a ruling on the merits, the court did not tie its hands. Given the high court’s previous track record in defending religious freedom, we can at least hope that Friday’s ruling isn’t the end of the story.