Justice Gorsuch in dissent against religious bigotry

By Phil Lawler ( bio - articles - email ) | Dec 14, 2021

Whatever else you read today, don’t miss the opinion by Justice Neil Gorsuch in the Supreme Court case of Dr. A v. Kathy Hochul.

Unfortunately, Justice Gorsuch was writing in dissent. The Court’s majority ruled against health-care workers in New York, who had said that mandatory vaccination violates their religious freedom, since it requires them to violate their consciences (by taking a vaccine developed with the use of fetal tissues) or lose their jobs.

New York’s Governor Hochul had laughed off the religious-freedom claim, announcing that no “sanctioned religious exemption from any religion” would be allowed. Anticipating complaints from pro-life Catholics, she added that “everybody from the Pope on down is encouraging people to get vaccinated.”

Well, not “everybody.” There are Catholic prelates and theologians who argue—persuasively—that the use of vaccines developed using fetal cell lines is ethically unacceptable. As a matter of fact, the Vatican has made that argument, repeatedly. And while it is true that Pope Francis, along with most bishops, now encourages vaccination (arguing that there is a grave need because of the Covid epidemic), the Catechism of the Catholic Church very clearly teaches that if one’s conscience weighs against an action—in this case, perhaps because one does not see a grave need—then one is obligated to obey what conscience dictates, even if Church authorities reach a different conclusion. Finally, the Congregation for the Doctrine of the Faith has emphasized that vaccination must be voluntary.

So clearly there is a religious-freedom argument in this case. Moreover, in her public statements promoting the mandate, Governor Hochul is not shy about invoking her own religious beliefs. She told vaccine proponents, “you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”

That last phrase—“You know who they are”—strikes an ominous note. Is the Governor encouraging the people of New York to look with suspicion on those who wish to claim religious exemptions? Is she setting them up to be rejected as enemies of the people? Is it not enough that, under her mandate, they would lose their jobs—and be ineligible for unemployment benefits? The Hochul mandate looks like a policy designed to punish religious dissenters.

So Justice Gorsuch, in his dissenting opinion, scolds the Court majority: “It is astonishing that the Court tolerates this blatant invasion of religious freedom by a bigoted Governor and her health bureaucrats on the pretext of a never-ending ‘emergency’ that morphs as rapidly as the virus itself.”

Like so many of the policies that have been enacted during the Covid lockdown, the Hochul mandate is not an act of legislation. It is an emergency measure, promulgated by the Governor on her own authority, because—we are told—the “emergency” is so dire that the legislature cannot act quickly enough. Really? Nearly two years into the epidemic, has there not been ample time for legislative research, debate, and action?

The Covid epidemic has supplied all too many excuses for peremptory government actions—actions not taken by the people and/or their elected representatives, but by executives or even unelected bureaucrats. The multiplication of these non-legislative actions—and their increasingly draconian provisions—endanger the democratic understanding on which the American system of government rests: the understanding that “We, the people” establish the rules by which we live.

Justice Gorsuch notes that the New York mandate is particularly burdensome. “It seems that nearly every other States has found that it can satisfy its Covid-19 public health goals without coercing religious objectors to accept a vaccine,” he writes. But something else is going on in New York: something more than a drive to encourage vaccine; something more like a drive to punish religious dissent. Thus Gorsuch rightly observes that “what explanations the Governor has chosen to supply undermine rather than advance the State’s cause.”

Yet the weakness of the Gorsuch opinion, as I pointed out at the outset, is its status; it is a minority opinion. Regrettably, the Supreme Court found the logic of Governor Hochul, with her contempt for religious claims, more compelling than the logic of Justice Gorsuch, with his respect for limitations on government power.