The switch from heroes to villains was abrupt. For much of 2020, every night at 7 p.m., New York’s health-care heroes heard the clapping and cheers of grateful neighbors who appreciated their willingness to help others during Covid, even without a vaccine. Now, many of those same health-care workers have lost their careers because of New York’s extreme and vindictive vaccine mandate.
That may change soon. Yesterday, in a case called Dr. A v. Hochul, 16 of those workers asked the Supreme Court to hear their First Amendment challenge to New York’s mandate. Represented by the Becket Fund for Religious Liberty and the Thomas More Society, the health-care workers asked the Court not only to invalidate New York’s mandate but also to overrule the 1990 case of Employment Division v. Smith.
New York’s mandate is an extreme outlier — the Biden administration’s rules, along with the rules in 47 other states, allow religious health-care workers to keep their jobs even if they remain unvaccinated. New York originally allowed religious exemptions, but then took them away. Worse, New York allows thousands of other unvaccinated health-care workers to keep their jobs — just not the religious objectors. Bizarrely, New York even allows vaccinated workers with active and symptomatic Covid infections to work in hospitals, but not healthy religious objectors who don’t have Covid.
Governor Hochul even took to the pulpit to denounce religious objectors. She said that God “made them come up with a vaccine” and that religious objectors “aren’t listening to God and what God wants.” Calling the attendees “the smart ones” and “the true believers,” she implored them to “be my apostles” to convince the unvaccinated. “You know who they are.” And to add insult to injury, days later Hochul announced that New York will strip the religious objectors of their unemployment benefits.
Such harsh treatment of religious objectors has no place in our constitutional system. And indeed, a district court judge found the mandate to be a “religious gerrymander” that “targets religious opposition to the available COVID-19 vaccines.” But the Second Circuit Court of Appeals concluded that these “meaningful burdens” on religious objectors were just “not of a constitutional dimension” — so it let them get kicked to the curb instead.
The root of the Second Circuit’s decision was its reliance on the much-maligned Smith case. Smith is not rooted in the Constitution’s text — which protects the free exercise of religion — or in its structure, history, or traditions. It is only Smith’s stunted view of religious liberty that could lead a federal court to recognize the “meaningful burdens” on a constitutional right but somehow still conclude that they are “not of a constitutional dimension.” Only in a world warped by Smith would a government think itself free to mistreat a religious minority as New York has.
Three justices have already indicated that they think the Dr. A petitioners should win. It only takes four votes to decide to hear the case on the merits. The Court will decide whether to take the case this spring.