Then in June v Fulton against the city of Philadelphia,, The Supreme Court ruled that Philadelphia’s refusal to place children in a Catholic foster care agency that would not cooperate with same-sex parents was unconstitutional. According to the court, because the place of the foster care contract he said that agencies could not reject foster parents or adoptive parents on the grounds of sexual orientation “unless an exception is granted,” the city allowed exceptions and therefore had to offer one to a Catholic agency for religious purposes.
Arguing that laws that do not mention or target religion may still violate people’s religious rights in certain cases, the Tandon and Fulton decisions sent a message to opponents of vaccines: you can challenge the constitutionality of any rejection of a request for a religious exception. Opponents of the vaccines continued to sue.
As the once-regulated doctrine has changed, lower courts have adopted various decisions on the constitutionality of Covid-19 vaccination mandates. In the case of Maine, Jane Does 1-6 v. Mills,, The District Court of Appeal highlighted the differences between health and religious exceptions and refused to block the mandate of the Maine vaccine for health professionals, which did not offer religious exceptions.
The opposite is true in early October U.S. Court of Appeals for Sixth District found that the refusal of the University of Western Michigan to grant religious exemptions to student-athletes was most likely unconstitutional because the mandate allowed for medical exemptions. This was similar to the reasoning used by Judge Neil Gorsuch in his disagreement in Mills, joined by Judges Clarence Thomas and Samuel Alito. It is worrying that Judge Gorsuch also wondered how much longer should be considered a convincing interest of the state in controlling the pandemic.
Decision of the Supreme Court of Mills shows that he is in no hurry to block mandates. However, as the views of the majority on the content remain uncertain, the lower courts are likely to continue to move in different directions. The Supreme Court may eventually decide to hear the case in its regular proceedings.
If this happens, his decision will have important implications for vaccine mandates. Health conditions that justify medical exceptions are relatively rare. In contrast, religious exceptions pose a much greater threat to vaccination efforts. Although very little religions oppose Covid-19 vaccines, controlling the sincerity of someone seeking a religious exception can be difficult, and, as the example of the University of Western Michigan shows, rejecting a requested exception can now be constitutionally risky.
Even more worrying is that the Supreme Court’s decision to reject its own precedent regarding vaccine mandates and ignore the differences between health and religious exceptions will resonate far beyond the Covid-19 pandemic. Whether or not the court intended to challenge the constitutionality of vaccine mandates, it did. A decision calling for religious exemptions for vaccine mandates will create more uncertainty and encourage people to demand a religious exemption from any health law they don’t like.
The decision to invite this future belongs to the judges, but the consequences will be ours.