On Friday it was widely reported that the Supreme Court decided not to take up an emergency application for a stay of Maine’s vaccine mandate for healthcare workers, which mandate had a medical but not a religious exemption/accommodation. But, there was actually more going on at the Supremes than the headline indicated, and it is very welcome news for those who believe there is a constitutional right to a religious exemption to a vaccine mandate. The result of course was that the Supremes are not going to hear the case.

This decision came on the court’s shadow docket, meaning hearing a case before there is a final adjudication by the district court and an appeal on the merits by the federal court of appeals. The shadow docket is how the Supremes overturned the New York and then California’s restrictions on church services. (And the shadow docket was how prior to Justice Barrett joining the court, the Supremes upheld a similar restriction brought by the very same California Church.)

Anyway, back to the Supremes decision not to accept the Maine case to quickly review the mandate. The three liberals plus Justice Roberts wrote nothing substantive, as is usually the case when the Supremes decide not to take a case up in an emergency application. But Justice Barrett wrote a concurring opinion to which Justice Kavanaugh joined. They agreed with the four in not taking the case now, but they wanted to make clear that their reasons were technical and procedural, not substantive, i.e. that they necessarily think the First Circuit was correct in denying relief. Justice Barrett thought that since this was the first time the court was dealing with this important issue, a full record was needed. Meaning, they didn’t think the shadow docket was the right or a good enough procedural vehicle to deal with this issue.

Certainly, the record in the Maine case (as it is in the Second Circuit’s cases involving the New York mandate) is not well developed compared to after a full trial. However, that didn’t stop the Supremes from first upholding the restrictions on religious gatherings in the South Pentecostal case, and then reversing course in the Cuomo and second South Pentecostal case.

I suppose you could say those restrictions on the percent capacity at a church service versus different restrictions on say a hardware store is a simpler issue. But still…

Judge Barrett is a very practicing Catholic and you would think that might sway her to hear the case now. But it didn’t. I would speculate that since the Catholic church has no opposition to this or any other vaccine, she might want a more developed record on the sincerity of the plaintiff’s beliefs since such beliefs could be challenged as convenient and recently discovered, if not pretextual. I think all there is so far in all these cases is just written declarations from the plaintiffs making unchallenged statements about their religious beliefs. Of course, the argument could be made that it’s not the government’s role to even question religious beliefs, but I think the courts will allow some inquiry when these cases are tried.

But the real news from the decision is that the three arch-conservative anti-institutional justices dissented and would have heard the case now.

And the real heartening news for those in support of a robust religious exemption is that Justice Gorsuch, (who for my money is by far the best wordsmith on the Court) basically bought everything that the proponents were selling.

He talked about the brave applicant healthcare workers who put their lives at risk on the front lines during the pandemic.

More importantly and huge is that he saw the religious exemption as the same as a medical exemption. Hence he bought into the notion that the Maine mandate was not neutral on its face. That triggered a strict scrutiny analysis, meaning a compelling state interest and the least restrictive means.

But the most heartening thing was what followed. First, that the analysis had to focus not so much on the public health at large but these plaintiff applicants, which diminished the compelling state interest (I didn’t quite follow his argument about that point honestly).

Second, and something that should apply in all such cases, the fact that other states have preserved the religious exemption in their vaccine mandates was enough for him (and the other two ultra-conservatives) to conclude as a matter of law that Maine did not use the least restrictive means possible. So, although his actual conclusion was that the court should have accepted the case, it is clear what he (and the other two) think the case should be decided. And that’s very good news for the advocates of the religious mandate.

Here are the concurring and dissenting opinions in the case: wo possible points to argue:concuringanddissentingopinions

Still, that’s only three of nine justices who wanted to hear the case now on the existing, admittedly thin record. FYI: Two of the three Second Circuit judges at the oral argument last week voiced concerns about the inadequacy of the record in the two New York preliminary injunction cases. But those judges concluded that since the burden lies on those seeking an injunction, the paucity of the record weighed against granting preliminary relief.

Will the Supremes act any differently in the emergency application to stay the New York Healthcare worker mandate?

I don’t think so. I think the similarities in the two orders outweigh and are more important than the differences. Basically, in both cases, there were pleadings and declarations from the parties and that’s it. No real discovery and no cross-examination.

I would also point out that the Supreme Court’s decision in Jacobson was decided after a trial and full appeal. That is typically the way appellate courts prefer to proceed unless their hands are forced or unless there is a clear majority that feels there is an important constitutional point to be made irrespective of the resolution of factual issues. That was the case with the restrictions of the religious service, but in the end, a vaccine mandate case is probably just too complicated to adjudicate on a preliminary injunction record, at least for the Supremes. And that is basically the simple of what Justice Barrett’s dispositive opinion said. We should have the answer to this in the next 10 days.

So, in the short term, vaccine employer mandates are not going to be stopped. I suspect whatever relief employees can obtain will come from mass protests, walkouts, and slowdowns by the affected employees, and not by the judiciary.

Rick Jaffe, Esq.