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 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.
The Court has never defined what counts as a compelling interest. Generally, it has relied on common sense: an interest that any reasonable person would understand to be very important. Most litigation turns on whether what the law proposes to do is really all that necessary to the end the state is pursuing – whether, for instance, prison security (obviously a compelling interest) is really jeopardized if Muslim inmates grow half-inch beards. But compelling interest is the indispensable starting point. Unless the state can point to such an interest, it will automatically lose.
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:
I accept that what we said 11 months ago remains true today – that “[s]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 this, 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 logic here has nothing specifically to do with COVID. It necessarily implies that there is at present no compelling interest in refusing religious exemptions for any other vaccine: measles, rubella, tetanus, diphtheria, pertussis and all the other nasty diseases that you got jabs for when you were a child. Right now, those illnesses hardly ever kill anyone. Most Americans don’t remember (but may soon learn) the fear that your child will die of measles or diphtheria or be paralyzed by polio.
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 Kavanaugh and Barrett have been willing to aggressively deploy religious liberty arguments to constrain anti-COVID 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.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.