The anti-vaccine movement was, just a few years ago, a fringe bunch of crackpots who even Donald trumpDonald Trump Trump Tells Former Aide Navarro to ‘Protect Executive Privilege’ in House of Representatives’ COVID-19 Investigation Jan.6, Panel May See Influence from Bannon Impeachment Texas Democratic Rep. Eddie Bernice Johnson announces his retirement at the end of term MORE I had to walk back his support once he was president. Now he seems to have among his allies at least three of the nine magistrates of the Supreme Court, who claim to defend the free exercise of religion. One from america prominent advocates of religious freedom believes that the Supreme Court is endangering that freedom under the pretext of protecting it.
Supreme Court attorney Douglas Laycock helped craft the current First Amendment law. However, in COVID-19 cases, the conservative majority of the Court runs the risk of turning the free exercise of religion into something Laycock never imagined: the right to kill people.
Laycock, a professor at the University of Virginia School of Law, was the victorious attorney in Church of Lukumi Babalu Aye v. Hialeah (1993), persuading the Supreme Court to invalidate the ban on the slaughter of animals. To understand where the law is now, one must understand that decision and how the Court has abused it.
The Court had previously held that there was no right to religious exemptions from neutral laws. But Laycock showed that this law was not neutral. He targeted an unpopular religion of Caribbean immigrants. The laws, the Court concluded (adopting Laycock’s arguments), were “carefully worded to prohibit few killings other than those caused by the slaughter of animals.”
The state said it had a legitimate interest in preventing cruelty to animals. The court responded that the city “devalues religious reasons for killing by judging them of less importance than non-religious ones.” In Hialeah, animals could die, sometimes painfully, for all sorts of non-religious reasons. Live rabbits were used to train greyhounds. City laws, the Court said, “do not prohibit non-religious conduct that endangers these interests to a similar or greater degree than Santeria sacrifice.”
That ruling became the basis for recent court interventions against state efforts to contain COVID. He overruled restrictions on church attendance because states allowed more people to gather at grocery stores and other businesses. On Tandon v. Newsom, In an April 5-4 decision against California’s order prohibiting more than three households from meeting in homes, an order that makes no mention of religion at all, the Court ruled that the laws cannot apply to religious groups that they want to hold services in homes as long as the state “treats some comparable secular activities more favorably.” The rule, he said, now is that “government regulations are not neutral and generally applicable. . . provided that they treat any comparable secular activity more favorably than religious exercise. ”
Laycock agrees with that general proposition of the law, but believes the Court misapplied it in cases involving religious services. “They made an analogy between churches and activities where people don’t meet for a long time.” The test, applied correctly, requires discernment about what endangers the interest of the state to the same extent that a religious exception is allowed. That approach, he has written, should easily allow immunization requirements in case of emergency, and let carefully crafted restrictions on church attendance.
For more than a century, the courts had universally rejected vaccine exemption applications on religious grounds. In October a significant part of the Supreme Court embraced them. Judges Neil gorsuchNeil Gorsuch Federal Judge in Texas Finds in Favor of Religious Businesses on LGBTQ Discrimination Claims Will the Supreme Court Allow Constitutional Oversight to Be Bypassed by Texas Abortion Law? Has the Supreme Court been infected with Trump syndrome for a long time? PLUS, Clarence thomasClarence Thomas Supreme Court Struggles With Limits On Digital Ads And Free Speech Winsome Sears: The Latest Black Conservative To Make Liberals Nervous Will The Supreme Court Allow Constitutional Oversight To Be Bypassed By Texas Abortion Law ? PLUS and Samuel AlitoSamuel Alito Supreme Court Weighs Religious Accommodations During Executions Supreme Court Appears To Distrust New York Gun Limits Will Supreme Court Allow Constitutional Oversight To Be Bypassed By Texas Abortion Law? PLUS dissented from the decision not to block Maine’s requirement that health care workers vaccinated against the coronavirus despite their religious objections. Because medical exemptions are allowed, they reasoned, religious exemptions must, too, although medical exemptions have never been vectors of disease, while religious exemptions have already been responsible for measles outbreaks in some states.
In fact, there was plenty of evidence that religious exemptions are far more dangerous than medical exemptions, in part because they are so easy to claim strategically.
Laycock told me that the Court’s COVID opinions “come close to saying, if there is any secular exemption, there has to be a religious one.” If in fact religious exemptions from vaccines are required whenever there are medical ones, then the consequences go beyond COVID.
The Centers for Disease Control and Prevention reports that “Almost 1 to 3 out of every 1000 children who become infected with measles will die from respiratory and neurological complications.” But very few people are medically disqualified from the measles vaccine. Does that mean that religious resistance to vaccines is now a constitutional right? Human sacrifice was once the reductio ad absurdum of religious freedom, but the Court seems to be prepared to protect it as long as the deaths are statistical and the victims are not identified in advance.
Having spent her career fighting for religious freedom, Laycock worries that judges who are so eager to defend her are in fact putting her in danger. “There is a lot of hostility towards the idea of religious freedom in practice, and these claims, especially if they prevail, will make it much worse,” he said. interfere with other people’s sex lives. Now they will be blamed, much more precisely, for killing large numbers of Americans. “
The Court right, he thinks, is in the grip of a narrative in which secularist militants in government are trying to persecute religious conservatives. The narrative is sometimes true. But they extend it too far, to situations where none of that is actually happening. (It may also be evidence of Long Trump syndrome, the tendency of his skepticism toward public health to continue to upset the Republican Party.)
The Court is now a great threat to public health. It’s hard to think of a more effective way to discredit the idea of religious freedom.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning the House: How Libertarian Philosophy Was Corrupted by Deception and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.