The Supreme Court finally decides the religious right asked for too much

The Supreme Court handed down a brief order Friday evening — it is literally just one sentence long — denying relief to a group of Maine health care workers who object to the Covid-19 vaccine on religious grounds. This means that nearly all workers in health care facilities licensed by the state must be vaccinated in order to keep their jobs.

Yet, while this order, which is also accompanied by a one-paragraph concurring opinion by Justice Amy Coney Barrett and a longer dissent by Justice Neil Gorsuch, is quite brief, it is significant because it suggests that there may be some limit to the conservative majority’s solicitude for religious conservatives.

Earlier in the pandemic, the Court handed down a pair of decisions that revolutionized its approach to religious liberty cases and granted churches and other houses of worship broad exemptions from public health orders intended to control the spread of Covid-19. The Court’s Friday evening decision in Does v. Mills, by contrast, appears to have been decided on the narrowest possible grounds. Though it is a loss for the religious right, it is not an especially significant one.

Maine requires nearly all health care workers to be vaccinated against Covid-19. It argues that this requirement is necessary because those workers are unusually likely to interact with patients who are vulnerable to the disease, and because the state’s health care system could potentially be disabled if too many health care workers are infected. The state does exempt a very narrow slice of health care workers, however: those who risk adverse health consequences if they are vaccinated, such as people with serious allergies to the vaccine.

The plaintiffs argued that religious objectors must be exempted from this requirement because the state also provided an exemption to people who could suffer health consequences if they are vaccinated — an argument that is, at least, plausible under the Court’s recent religion decisions. They were supported in an amicus brief by the Becket Fund for Religious Liberty, arguably the nation’s most sophisticated law firm representing religious right causes.

In a dissent joined by Justices Clarence Thomas and Samuel Alito, Gorsuch essentially agrees with the plaintiffs, making the case for granting a religious exemption to the state’s vaccine mandate. Quoting Tandon v. Newsom (2021), one of the Court’s two recent decisions granting places of worship an exemption from certain public health rules, Gorsuch claims that a law is constitutionally suspect “if it treats ‘any comparable secular activity more favorably than religious exercise.’”

Thus, under Gorsuch’s approach, the state must exempt religious objectors because it has a single exemption — again, for people who could suffer serious health consequences if they receive the vaccine.

Had Gorsuch’s approach prevailed, it’s likely that religious objectors would be exempted from nearly any law. Speed limits, for example, typically exempt police, ambulances, and other emergency vehicles responding to an emergency. Even laws banning homicide typically contain exemptions for self-defense. (Although, in fairness, Gorsuch concedes that a religious exemption is inappropriate when the “challenged law serves a compelling interest and represents the least restrictive means for doing so.” So Gorsuch probably would not allow religiously motivated murder.)

In any event, Gorsuch’s view did not prevail — though it is far from clear that it will not receive five votes in a future case. Though Justice Barrett joined a majority of the Court in allowing Maine’s vaccine mandate to take effect, her opinion (which is joined by Justice Brett Kavanaugh) clarifies that she did so on exceedingly narrow grounds.

Essentially, Barrett argues that the Supreme Court has discretion to decide which cases it wants to hear. And her opinion suggests that she would exercise her discretion to not hear this particular case.

That’s consistent with an approach she laid out in a 2017 essay, where she argued that Supreme Court justices who encounter an argument that they think is legally valid but that would lead to disastrous results should exercise their discretion not to hear a case raising that argument.

For now, at least, the bottom line is that Maine’s vaccine mandate is in effect. Public-facing health care workers will need to receive the Covid-19 vaccine unless they have a medical excuse.

Again, it’s not a huge loss for the religious right. But the decision in Does suggests that there is, at least, some limit to the Court’s willingness to carve out legal exemptions for religious conservatives.