A year ago COVID spread seemed uncontrollable and Governor Cuomo, under emergency powers granted by the state legislature placed in-person occupancy limits on attendance at religious services. We knew the virus was highly contagious and his order seemed reasonable. The order was challenged alleging the order violated the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” [The Fourteenth Amendment included states in the First Amendment guarantees, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”]. The lower courts sustained the governor’s actions and in an unprecedented action the Supreme Court, without any oral argument, overturned the actions of the governor.
The conservative Court majority wrote,
Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.
Justice Sotomayor dissented,
Epidemiologists and physicians generally agree that religious services are among the riskiest activities. Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.
The Court, in an extraordinarily speedy hearing and decision framed the limitations on attendance at religious services as a violation of the First Amendment.
As COVID and Delta continued to ravage the nation the courts appear to have changed direction. Indiana University announced in July that all students must be vaccinated and the case was fast tracked to the US Court of Appeals, the court rejected the appeal in no uncertain terms. (Read decision here)
I wrote in detail about the question of the power of the court, and, the impact of public opinion on the courts – take few minutes and read here.
As the school year approached school districts began to require employees to be vaccinated and the New York City requirement would place unvaccinated employees on unpaid leaves. A group of teachers appealed and the court rapidly denied their appeals.
NYS Governor Hochul ordered all hospital employees vaccinated with no religious exemption. Once again a group of employees challenged the order, a federal judge in Utica issued a temporary restraining order (TRO) and Tuesday made the TRO permanent pending a full hearing before the court.
Plaintiffs have established that [Hochul’s order] conflicts with longstanding federal protections for religious beliefs and that they and others will suffer irreparable harm in the absence of injunctive relief. Plaintiffs have also satisfied the remaining elements necessary to obtain preliminary relief. To reiterate, these conclusions have nothing to do with how an individual employer should handle an individual employee’s religious objection to a workplace vaccination requirement. But they have everything to do with the proper division of federal and state power. In granting a preliminary injunction, the Court recognizes that it may not have the final word. “Congress permits, as an exception to the general rule, an immediate appeal from an interlocutory order that either grants or denies a preliminary injunction.” Because the issues in dispute are of exceptional importance to the health and the religious freedoms of our citizens, an appeal may very well be appropriate.
Governor Hochul announced the state will appeal the decision.
In a landmark 1990 case, Employment Division, Department of Human Resources of Oregon v. Smith, the court ruled that states do not have to provide a religious exemption from a generally applicable law that is neutral on its face with respect to religion. Courts have consistently found that vaccine mandates do not require a religious exemption, and several states — California, Connecticut, Maine, New York, West Virginia and Mississippi — do not offer one.
The Conway Regional Health System in Arkansas, for example, requires that people who claim to oppose vaccines because of their use of cell lines from decades-old abortions must also attest that they do not use other products that were tested on cell lines, a long list that includes Tylenol, aspirin and Benadryl. (Read discussiion here)
Dr. Joseph R. Sellers, president of the Medical Society of the State of New York, said in a statement that the nonprofit organization for physicians, residents and medical students was “greatly dismayed by today’s decision.”
“We believe this step will result in a flurry of attempts to circumvent the well-reasoned vaccination requirement that was an important step towards reversing the recent surge attributable to the more easily spread Delta variant, … No major religious denomination opposes vaccinations, and the Supreme Court has for over 100 years upheld vaccination requirements as a means to protect the public health.”
Litigants cited violations of the U.S. Constitution, along with the New York State Human Rights Law and New York City Human Rights Law, claims the vaccination violates the law because the state Department of Health regulation requiring workers to get the vaccine provided no exemption for “sincere religious beliefs that compel the refusal of such vaccination.”
The appeal, submitted by the Thomas More Society, a conservative think tank court papers said all of the available vaccines employ aborted fetus cell lines in their testing, development or production. But religious leaders have disagreed over the issue and the Vatican issued a statement last year saying the vaccines were “morally acceptable.”(Read discussion here )
The Equal Employment Opportunity Commission in its interpretation of Title VII, defining “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The EEOC also stipulated that “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief.” In other words, that Pope Francis sees vaccination as morally permissible for Roman Catholics even though vaccines were tested or developed using cell lines derived from aborted fetuses has no bearing on whether a Catholic may have a protected religious belief against vaccination because of the vaccines’ remote connection to abortion.(Read extended discussion here)
The question is whether someone’s personal religious belief can extinguish a law or regulation has been the subject of litigation for many years.
Why aren’t the protections afforded to individuals under the free exercise of religion absolute?
Does the rule of law, public safety and general welfare trump any claim of religious exemption?
As far back as the late 19th century, the Supreme Court has acknowledged it would be absurd to allow people to opt out of many generally applicable laws by simply claiming their religious beliefs compelled contrary action. In 1879, the court correctly posited, “Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?”
Does claiming a religious exemption makes laws optional; each person would be in charge of which laws s/he wanted to comply with and when.
The “protection of society” would surely seem to include obtaining a vaccine to protect oneself and others from a deadly virus.
We know the government can sometimes impose regulations, even if those regulations burden actions taken in furtherance of religious beliefs.
The Supreme Court concluded in 1940, “Conduct remains subject to regulation for the protection of society.”
The “protection of society” would seem to include obtaining a vaccine to protect oneself and others from a deadly virus. This is perhaps the quintessential example of the government having a compelling interest to enact a law, even if it arguably burdens the freedom of religion in some narrow cases.
(Read detailed discussion here)
The docket of the Supreme Court is determined by the members of the court, 7-8,000 cases are appealed to the court, about 80 are scheduled for argument, and, recently the court has created a “shadow docket,” without oral argument or briefing cases that the court believes will result in “ irreparable harm” are decided, frequently in unsigned decisions.
Once a court renders a decision it rarely revisits the issue, called “stare decisis,” unless, of course, it decides to revisit the question, and, the current court has made it clear, it has no compunction about revisiting prior decisions .
On November 3rd the Supreme Court will probably expand the 2008 5-4 Heller decision, reinterpreting the founders meaning of the 2nd Amendment to allow open weapon carry in New York State.
On December 1st the Supreme Court will revisit Roe v Wade and expectations are the six member conservative faction will overturn or seriously limit.
Has the Supreme Court exceeded the authority envisioned by the Constitution? Is the time approaching that the powers of the Court should be curtailed? A NY Times guest editorial warns,
… the Reagan revolution in the law … was motivated by resistance to judicial meddling, primarily by the Warren court of the 1950s and ’60s, and it rested on the idea that judges are stewards of an existing body of law and not innovators charged with radically remaking it.
Failing to remember that will squander the public trust that is so essential to the court’s historically unquestioned authority to say what the law is. Already this year, Americans’ approval of the court has plummeted.
It will also strengthen the calls for structural changes. Some proposals to overhaul the Supreme Court — like the institution of term limits and a modest expansion of the bench — would arguably be salutary.