Article By: Katherine Revello.
Originally published November 2hd, 2021 on The Maine Wire, Reproduced here with permission.
The U.S. Supreme Court denied an appeal for injunctive relief on October 29 in a lawsuit seeking to overturn Maine’s COVID-19 vaccine requirement for healthcare workers.
The lawsuit was brought against Gov. Janet Mills and the Maine Centers for Disease Control and Prevention (CDC) by Liberty Counsel on behalf of roughly 2,000 anonymous defendants whom it claims are healthcare workers in Maine. Liberty Counsel claims the lack of religious exemption in the mandate violates the First Amendment rights of healthcare workers who have sincere religious objections to the vaccine.
The lawsuit also argues that the lack of religious exemption in the vaccine mandate violates Title VII of the Civil Rights Act, which prohibits discrimination on the basis of religion.
The petition for injunctive relief was based on the October 29 enforcement date for the vaccination requirement. The plaintiffs argue that injunctive relief, which would have stopped enforcement of the mandate while the case was reviewed by the court, was necessary because unvaccinated healthcare workers were likely to lose their jobs once enforcement began.
The application for injunctive relief was presented to Justice Stephen Breyer, who referred the matter to the court for review.
The application was denied, with Justices Amy Coney Barrett and Brett Kavanaugh concurring in the decision to deny injunctive relief.
In the opinion, Barrett argues that granting relief would require the court to consider whether the broader lawsuit is likely to succeed on the case’s merits. That decision, Barrett writes, includes discretionary judgment about whether the court should grant review of the case.
“Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take–and to do so on a short fuse without benefit of full briefing and oral argument.”
Barrett further argues that those discretionary considerations counsel against granting relief.
Justices Neil Gorsuch, Clarence Thomas and Samuel Alito disagreed with this reasoning and filed a dissenting opinion.
“The applicants ask us to enjoin further enforcement of Maine’s new rule as to them, at least until we can decide whether to accept their petition for certiorari. I would grant that relief,” Gorsuch wrote in his dissenting opinion.
Gorsuch considers whether Liberty Counsel’s case is likely to succeed on the merits.
“Under this Court’s current jurisprudence, a law may survive First Amendment scrutiny if it is generally applicable and neutral towards religion. If the law fails either of those tests, it may yet survive but the State must satisfy strict scrutiny. To do that, the State must prove its law serves a compelling interest and employs the least restrictive means available for doing so,” Gorsuch wrote.
Gorsuch further notes that Maine’s government does not dispute that the vaccine requirement burdens the exercise of religious beliefs and that it may not be “generally applicable” because individualized exemptions are possible to obtain, but “only if they invoke certain preferred (nonreligious) exemptions.”
For these reasons, and because the court has in the past ruled that laws are not neutral and generally applicable when they treat any comparable secular activity more favorable than the exercise of religion, Gorsuch argues strict scrutiny applies to Maine’s vaccine requirement and should trigger review from the court.
Gorsuch also states he disagrees with the Court of Appeals’ finding that the vaccination requirement is neutral and generally applicable. He argues the Court of Appeals restated Maine’s interest on the state’s behalf and did so at an “artificially high level of generality.” This, Gorsuch writes, is something the Supreme Court has long warned against.
“Assuming for present purposes that its interest is a compelling one, Maine has not shown that its rule represents the least restrictive means available to achieve it,” he wrote.
Gorsuch takes issue with the state’s claim that it needs 90% of employees at covered healthcare facilities to be vaccinated in order to protect patients and healthcare workers against COVID-19. The state, Gorsuch notes, does not provide evidence to explain why it has selected this figure. He also notes that many healthcare facilities in the state have already achieved 90% vaccination rates, are close to those rates or have a rate of vaccination higher than 90%.
Gorsuch further notes that other states have been able to achieve comparable rates of vaccination while allowing for a religious exemption to vaccine requirements.
“This case presents an important constitutional question, a serious error, and an irreparable injury,” Gorsuch concludes in his dissent.
The Supreme Court’s rejection of appeal for injunctive relief does not necessarily mean an end to Liberty Counsel’s lawsuit. The court may still decide to grant review to Liberty Counsel’s petition for certiorari and hear the case in oral arguments.
This piece is reproduced with permission and first appeared in The Maine Wire.
Click here to read the original article.
Author Bio: Katherine Revello is a reporter for The Maine Wire. She has degrees in journalism and political science from the University of Maine. Her writing has appeared in Reason, The Washington Examiner, and various other publications. Got news tips? Contact Katherine at krevello@mainepolicy.org.