They say, “the opera ain’t over until the fat lady sings.” Undoubtedly “they” are not regular opera attendees, but they make a fair point about finality that I am about to violate. The “opera” here is the COVID vaccination mandate.
It is the most widespread religious liberty problem I have seen in a long time. By that I mean more Americans are directly impacted by it, and making faith-based objections to it, than any other issue I can recall in recent years.
I started understanding the magnitude of the problem when friends from high school contacted me about it. Then people who claimed to know my high school friends contacted me about it. Church members contacted me about it. Former clients contacted me. Former law students of mine contacted me as they were about to file federal court lawsuits over it. Every recent seminar I have given on a religious liberty topic, regardless of the specific issue, resulted in questions about the COVID mandate. My wife and I were eating dinner in an outdoor restaurant when someone stopped by to ask me about the mandate. Somehow, I missed that it was on the menu.
All that contact made me conclude that either the public interest and consternation over the mandate is huge, or someone is inserting subliminal messages with my name on it in those annoying Medicare open enrollment ads.
At the precise moment that I’m writing this, several federal courts have issued rulings on the mandate. Some are understood as pro-mandate and some are anti-mandate. The more recent decisions are anti-mandate. What the public does not realize is that all these decisions are preliminary. They involve an injunction of some sort, the point of which is to maintain the status quo until the court can rule on the merits. The fat lady has, at best, merely started warming up her voice.
Acting contrary to fat lady advice, I’m going to explain here why I believe government mandated vaccinations will not be upheld by the Supreme Court for employees who have religious objections to taking the vaccine. The reason why I focus on the Supreme Court is that it is the ultimate fat lady when it comes to religious liberty.
Recently, the Supreme Court entertained a request for emergency injunctive relief in John Does 1-3 v. Mills, No. 21A90 (October 29, 2021). The case involved the State of Maine’s COVID vaccination mandate which contained no exceptions for religious reasons. Justice Gorsuch, joined by Justices Thomas, and Alito, wrote that they thought the mandate was unconstitutional. Justices Barrett and Kavanaugh wrote that they did not want important issues like this coming up through emergency injunctive requests – thus they said nothing about the merits. If Justices Barrett and Kavanaugh had agreed on the merits, that would reach the magic number for a majority and would likely sink any vaccination mandate that did not contain an exception for faith.
The fat lady question thus becomes, “Can we reasonably predict how those two (Barrett and Kavanaugh) will rule?” The answer, which I think is “yes,” is found in another recent COVID mandate injunction decision in a case named Tandon v. Newsome, No. 20A151 (April 9, 2021).
Tandon is the latest Supreme Court rebuff to the State of California in its continuing effort to use the COVID problem to limit religious liberty – specifically the freedom to assemble for worship. Tandon ruled in favor of religious liberty in a per curium opinion, which means that no specific Supreme Court Justice took credit for writing it. Chief Justice Roberts noted that he would deny the injunction and thus not protect religious freedom in the interim. The other three dissenters, Justices Breyer, Kagan, and Sotomayor signed a dissenting opinion explaining their views on why an injunction should not be issued. A little fast math and deductive reasoning reveals that both Justices Barrett and Kavanaugh must have supported the per curium decision or it would not have been issued by a majority of the Court.
The Tandon decision contains two points that are especially relevant. First, it holds that any time the state makes an exception for secular reasons, but fails to make an exception for religious reasons, the law is subject to the highest level of scrutiny (strict scrutiny) by the Supreme Court. Strict scrutiny is much like when you got in trouble as a kid and your parents gave you the “stink eye.” Technically, this means that the statute must be supported by a compelling state interest, and that interest must be applied in a way that least interferes with constitutional rights. This “least interferes” requirement is often referred to as “narrow tailoring.” Not too many statutes survive when the Court applies the strict scrutiny stink eye.
In several recent Supreme Court victories for religious liberty, the view that if you make exceptions for secular reasons you must also make them for religious reasons, has resulted in a win for religious liberty.
The per curium decision in Tandon contained this discussion:
Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too. Roman Catholic Diocese, 592 U. S., at ___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 3).
Notice that the per curium decision cites Justice Gorsuch as an author of the quoted legal ideas. Recall that Justice Gorsuch was the author of the dissent in the State of Maine case. This shows that Justices Barrett and Kavanaugh, in a slightly different context, agree with Justice Gorsuch that any COVID mandate that makes any exception for secular reasons must also make at least an equal exception for religious reasons.
Sharp-eyed readers will protest, “Wait, these are both injunction decisions and you said that the fat lady is merely warming up her voice in preliminary decisions.” If an injunction is granted, as it was in those two decisions, a majority of the Court must find that there is a probability of success on the merits. In those cases that meant that those challenging the mandate were likely to win. Justice Gorsuch provided the key legal concepts for the win for religious liberty.j
The Gorsuch dissenting opinion in the State of Maine case pointed out that the law made exceptions for medical reasons. It is hard to imagine that any future vaccination mandate would not contain an exception for medical reasons. After all, the presumed reason for the mandate is to promote public health. From this I conclude that when a challenge to a vaccination mandate makes it to the Supreme Court, and it contains an exception of any sort – including a medical exception – the fat lady will sing out that failing to make an exception for employees of faith is unconstitutional. And that will be final.
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Fellow Seventh-day Adventist Bruce N. Cameron is the Reed Larson Professor of Labor Law at Regent University School of Law. He is on staff with the National Right to Work Legal Defense Foundation. The Foundation’s legal staff was recently ranked second, out of all law firms in the United States, for First Amendment litigation before the U.S. Supreme Court. Professor Cameron has been litigating constitutional and religious liberty cases for 46 years.