“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.
Although the Supreme Court majority (including two Trump justices) rejected a shadow docket request to mandate a religious exemption from a Maine vaccination requirement for health workers, dissenting and concurring opinions by Trump justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh signal that they may well decide to impose such a religious exemption in future cases. The October 2021 decision was in John Does 1-3 v. Mills.
Maine has required health care workers who come into direct contact with patients to be immunized against various contagious diseases since 1989. In 2019, before the COVID-19 pandemic started, exemptions on religious or philosophical grounds were removed from the law because of decreased vaccination rates, a move that was approved by 73% of voters in a referendum. In 2021, several health care workers sued concerning the COVID-19 vaccination requirement for healthcare workers mandated by the state because of vaccination rates among such workers “too low to prevent community transmission,” claiming it violated their freedom of religion.
Chief Judge Jon D. Levy of the District of Maine denied a preliminary injunction against the requirement, noting the “serious risk of illness and death” due to COVID-19 and that the workers could stay “true to their professed religious beliefs” by taking job assignments that would not bring them into direct contact with patients. The First Circuit Court of Appeals unanimously affirmed in an opinion including Chief Judge Jeffrey Howard, who was nominated by President George H.W. Bush. Pointing out that Maine was “particularly vulnerable” because it has the “largest share of residents aged 65 and older in the country,” the court ruled that the vaccine requirement was a “generally applicable” and “religiously neutral” law that was clearly justified by a “legitimate governmental interest.” In response to the claim that the medical exemption meant that the law was not truly neutral, the court explained that “no case of the Supreme Court” or the First Circuit “holds that a single objective exemption renders a rule not generally applicable,” and that exempting “only those whose health would be endangered by vaccination” was consistent with the state’s objectives of “protecting the health and safety” of residents and “ensuring that healthcare workers remain healthy and able to provide” needed care. This case was very different from the Supreme Court rulings that required religious exceptions to other pandemic-related rules concerning gatherings of people where there were exceptions for commercial establishments, the court went on, since “carving out an exception” for people whose “health would be endangered” by a vaccine actually “furthers” Maine’s interests, while “carving out an exemption for religious objectors would not” and would in fact have the opposite effect.
The objecting health care workers nevertheless sought an emergency injunction from the Supreme Court against the vaccine requirement, attempting to use the Court’s “shadow docket” for a quick favorable ruling. The Court denied that request in a single sentence by a 6-3 vote. But dissenting and concurring opinions in the case by Trump justices raise serious concerns going forward.
Trump justice Neil Gorsuch dissented from the ruling, joined by Justices Clarence Thomas and Samuel Alito. He claimed that the Maine rule was not “neutral and generally applicable” because it allows an exemption for “preferred” and “nonreligious” medical reasons, and that an injunction should be granted against the rule “at least until we can decide” whether to grant full review to the case. Trump justices Amy Coney Barrett and Brett Kavanaugh did not join this opinion, but neither did they reject it. Instead, in a concurring opinion, they noted that the case was “the first to address the questions presented” to the Court, and that the Court should not “give a merits preview” through the shadow docket “on a short fuse without benefit of full briefing and oral argument.”
It is welcome that Trump justices Barrett and Kavanaugh joined Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan in rejecting the effort to mandate a religious exemption to Maine’s vaccination requirement for healthcare workers through the “shadow docket.” But their concurring opinion clearly suggests that they “could vote differently” and in accord with Gorsuch, Thomas, and Alito if “the case came before the court in a different way” on the merits docket. In other words, a serious threat remains that the Trump justices could mandate religious exemptions to COVID-19 vaccination requirements. Such a result, as religious liberty expert Douglas Laycock has explained, could help produce a “flood of false religion claims” and undermine the “compelling interest” in “preventing significant threats” to health through such vaccination requirements.
Although no such case is currently before the Supreme Court, the issue is before lower courts across the country. The Maine case underlines the importance, as part of our fight for our courts, of confirming fair-minded federal judges who will carefully consider the compelling interest in protecting people’s health and not reflexively defer to religious objections to public health mandates concerning the COVID-19 pandemic.