They did it again. Two of former President Donald Trump’s allegedly constitutional conservative Supreme Court justices sided this week with left-wing Obama-appointee Justice Sonia Sotomayor in allowing New York State’s nullification of religious exemptions to its onerous vaccine mandate for all health care workers.
The first time Justices Amy Coney Barrett and Brett Kavanaugh were presented with substantially similar facts, they failed to protect religious liberty because they claimed it was a novel issue to the court presented on an emergency appeal. This time around, religious liberty went down without so much as a comment.
Their silence signaled to every drunk-with-power mayor and governor that a range of onerous COVID-19 restrictions could continue virtually unabated.
Justice Neil Gorsuch’s eloquent and biting dissent should have been the majority’s opinion in a conservative majority court. In it, he reaffirmed the Court’s precedent that “government actions burdening religious practice should be ‘set aside’ if there is even ‘slight suspicion’ that those actions ‘stem from animosity to religion or distrust of its practices.’”
“Rather than burden a religious exercise incidentally or unintentionally, by [New York Gov. Kathy Hochul’s] own admission the State ‘intentionally’ targeted for disfavor those whose religious beliefs fail to accord with the teachings of’ ‘any organized religion’ and ‘everybody from the Pope on down,’” Gorsuch wrote.
Ms. Hochul’s now-infamous speech at a church where she asked people to be “apostles” of her vaccine mandate and questioned the intelligence of the unvaccinated is animus on its face. She has also repeatedly stated that there are no legitimate religious exemptions for this vaccine as if she alone is the arbiter of the validity of others’ religious beliefs.
Do Justices Barrett and Kavanaugh agree she has that power? Ms. Hochul stated to one audience, “I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”
Of course, the U.S. Conference of Catholic Bishops is partly to blame for allowing officials to equate the conference’s support for COVID-19 vaccination with the ridiculous contention that no religious exemptions are valid. The bishops have also repeatedly ignored the most authoritative statement from the Vatican on COVID-19 vaccines, which says, “practical reason makes evident that vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.”
This isn’t December 2020. We now know from the CDC’s data and The Lancet study that the vaccines do not prevent infection, nor do they stop transmission, nor were they developed to handle what are now the dominant strains of the virus. We know now that Big Pharma’s self-reported 90%-plus efficacy rate for the vaccines is waning, perhaps significantly.
Reasonable public health regulations that have demonstrable societal benefit is and has been a rationale for at times limiting certain freedoms. However, the data here is plain that the mandate is not only sweeping in its scope, but its broader implications on the health care community negate any scientifically ascertainable societal benefit.
So many health care professionals who worked through the pandemic caring for patients have now been fired because of New York’s blanket mandate that hospitals are limiting services, closing facilities and supplementing staffs with the National Guard. The damage done by New York’s regulation also lost on both Justices Barrett and Kavanaugh, is not only to the plaintiffs but the larger patient population put at risk over a mandate that neither prevents transmission nor virus acquisition.
The entire point of Constitutionally protected religious freedom is that it is meant to prevent the government from making decisions about the validity of anyone’s religious beliefs. Justices Kavanaugh and Barrett apparently believe New York State can strip away protections at will for a subset of society, vilify those individuals publicly, do it without legislation, and let the science be damned.
Time and again, we have seen governments play a fuzzy science guessing game during the pandemic, use misleading statements and politicize their responses to this crisis. How Justices Kavanaugh and Barrett would be content to allow that to continue for even a moment is beyond comprehension.
The court has again failed America’s first freedom, leaving it to continue to be eroded by leftist politicians and unelected medical bureaucrats divining the will of the divine.
As Justice Gorsuch stated, “Today, we do not just fail the applicants. We fail ourselves.” He’s right, and Americans should be fearful of the consequences.
• Tom Basile is an author, a former Bush Administration official and the host of “America Right Now” and “Wake Up America Weekend” on Newsmax Television.