Readers of SCOTUS Today, especially employers, might appreciate seeing an article that I co-wrote concerning the Supreme Court's rejection of a petition to enjoin New York State's vaccine mandate applicable to health care workers: “Supreme Court Lets New York’s Vaccine Mandate for Health Care Workers Stand.”
This action is consequential on its face because while future litigation by health care workers and others is certain, no fewer than six Justices have indicated support for a major mandate that allows for very limited exemptions. This marks the second time that the Court has rejected such a petition.
How this will affect pending multi-district litigation with respect to a much broader mandate, or with respect to employer-mandated updates (though these increasingly have been upheld) is to be seen.
But the New York case might also have broader implications.
Three Justices, led by Justice Gorsuch, along with Justices Alito and Thomas, would have enjoined the New York law because they saw its absence of a categorical religious exemption as violative of the First Amendment's guarantee of the free exercise of religion.
In that no known religion expresses a specific anti-vaccine doctrine, the proponents of religious exemptions have an involved circumstantial rationale. Given that the conservative majority of the Court has shown great sympathy toward religious organizations that can demonstrate discrimination with respect to non-religious activities where secular entities receive public financial support but they are denied them, the fact that only three Justices dissented as to the application for a stay of the Second Circuit's broad approval of the New York vaccine mandate might be telling.
While the conservatives indeed might be united in the decision of a pending case relating to the support of educational institutions in Maine, it would appear that there is much less support for claims that individuals are being subject to religious discrimination when the order at issue applies to everyone equally.
As to vaccine mandates, which are certainly going to get greater attention as we are being affected by the highly-communicative Omicron Variant of the COVID virus, there is increasing evidence that vaccine mandates, especially those issued by private employers, will find support in the courts. That is for future blogs.
- Member of the Firm