I am afraid of a paragraph that Supreme Court Justice Neil Gorsuch wrote a few weeks ago. You should be as well. He and two other justices think that the Constitution forbids states from requiring vaccinations on religious dissenters. Those diseases may come back if these judges have their way.
There is a bit of background. 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 tailored to serve a compelling interest. The most demanding test known to constitutional law is the compelling-interest test. It means that a right has been violated, the party challenging the law will probably win, and the government has a heavy burden of proof.
The Court never defined what constitutes a compelling interest. It has relied on common sense, which states that an interest that a reasonable person would understand to be very important is what it has relied on. If Muslim inmates grow half-inch beards, prison security may be jeopardized because the law proposes to do all that is necessary to end the state's pursuit. Compelling interest is the starting point. Unless the state can point to an interest, it will lose.
The paragraph is here. In October, the Court declined to block Maine's requirement that health care workers be vaccine free. The dissent was written by Gorsuch, along with Thomas and Alito.
I accept that what we said 11 months ago is still true. I would acknowledge that this interest can't be forever. There were no vaccines widely distributed when we decided to go to the Roman Catholic Diocese. There are three today. The country had few treatments for those with the disease. There are more treatments that appear near. Civil liberties are at risk when governments proclaim states of emergency.
It's hard to know what the future holds. COVID-19 was killing 1,000 Americans every day when he wrote this. The wonderful new interventions he cites have been less successful than everyone had hoped, in large part because of vaccine resistance.
One hopes that Gorsuch isn't too naive to think that the disease is going to be eradicated. If that is correct, he can only say that the level of death will decline to a point that is acceptable to him, and 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. Are you scared yet?
There is nothing specific about the logic here. There is no compelling interest in refusing religious exemptions for any other vaccine that you got when you were a child. Right now, those illnesses don't kill anyone. Most Americans don't remember the fear that your child will die of a disease or be paralyzed by a disease.
His final sentence is beyond question, and its relevance is questionable. Is it possible for the state to require health care workers who are in daily contact with vulnerable people to be vaccined against deadly plagues before an emergency exists? Children should be required to be vaccine free before they start school.
There are not enough votes for the mandatory-accommodation regime that Alito and Thomas want. In the Maine case, the Justices used religious liberty arguments to limit anti-COVID measures.
The Maine regulation grants medical but not religious exemptions. Whenever a law has non religious exemptions, the Court's conservative majority has been aggressive in distinguishing discrimination.
There are good public health reasons for Maine's policy. It won't matter if anyone else is excused if he reads the Free Exercise Clause correctly. The right to religious exemption is a constitutional right. We can expect a lot of people to exercise that right, sincerely or otherwise, as the anti-vaccination ideology takes over the Republican Party.
The idea of religious liberty is that the exercise of one person's religion doesn't hurt anyone else. It does me no harm for my neighbour to say there are no gods. It doesn't break my leg or pick my pocket. The pickpockets and leg-breakers are in charge.
The author of "Burning Down the House: How Libertarian Philosophy was Corrupted by Delusion and Greed" is Andrew Koppelman. Follow him on social media.
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