Does v. Mills ( 2021 )

Cite as: 595 U. S. ____ (2021) 1
BARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
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No. 21A90
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JOHN DOES 1–3, ET AL. v. JANET T. MILLS,
GOVERNOR OF MAINE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[October 29, 2021]
The application for injunctive relief presented to JUSTICE
BREYER and by him referred to the Court is denied.
JUSTICE BARRETT, with whom JUSTICE KAVANAUGH
joins, concurring in the denial of application for injunctive
relief.
When this Court is asked to grant extraordinary relief, it
considers, among other things, whether the applicant “ ‘is
likely to succeed on the merits.’ ” Nken v. Holder, 556 U. S.
418, 434 (2009). I understand this factor to encompass not
only an assessment of the underlying merits but also a dis-
cretionary judgment about whether the Court should grant
review in the case. See, e.g., Hollingsworth v. Perry, 558
U. S. 183, 190 (2010) (per curiam); cf. Supreme Court Rule
10. Were the standard otherwise, applicants could use the
emergency docket to force the Court to give a merits pre-
view in cases that it would be unlikely to take—and to do
so on a short fuse without benefit of full briefing and oral
argument. In my view, this discretionary consideration
counsels against a grant of extraordinary relief in this case,
which is the first to address the questions presented.
Cite as: 595 U. S. ____ (2021) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21A90
_________________
JOHN DOES 1–3, ET AL. v. JANET T. MILLS,
GOVERNOR OF MAINE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[October 29, 2021]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting from the denial of applica-
tion for injunctive relief.
Maine has adopted a new regulation requiring certain
healthcare workers to receive COVID–19 vaccines if they
wish to keep their jobs. Unlike comparable rules in most
other States, Maine’s rule contains no exemption for those
whose sincerely held religious beliefs preclude them from
accepting the vaccination. The applicants before us are a
physician who operates a medical practice and eight other
healthcare workers. No one questions that these individu-
als have served patients on the front line of the COVID–19
pandemic with bravery and grace for 18 months now. App.
to Application for Injunctive Relief, Exh. 6, ¶8 (Complaint).
Yet, with Maine’s new rule coming into effect, one of the
applicants has already lost her job for refusing to betray her
faith; another risks the imminent loss of his medical prac-
tice. The applicants ask us to enjoin further enforcement of
Maine’s new rule as to them, at least until we can decide
whether to accept their petition for certiorari. I would grant
that relief.
Start with the first question confronting any injunction
or stay request—whether the applicants are likely to suc-
ceed on the merits. The First Amendment protects the ex-
ercise of sincerely held religious beliefs. Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
2 DOES 1–3 v. MILLS
GORSUCH, J., dissenting
___, ___–___ (2018) (slip op., at 12–14). Laws that single
out sincerely held religious beliefs or conduct based on them
for sanction are “doubtless . . . unconstitutional.” Employ-
ment Div., Dept. of Human Resources of Ore. v. Smith, 494
U. S. 872, 877 (1990). But what about other laws? Under
this Court’s current jurisprudence, a law may survive First
Amendment scrutiny if it is generally applicable and neu-
tral toward religion. If the law fails either of those tests, it
may yet survive but the State must satisfy strict scrutiny.
To do that, the State must prove its law serves a compelling
interest and employs the least restrictive means available
for doing so. See Church of Lukumi Babalu Aye, Inc. v. Hi-
aleah, 508 U. S. 520, 531–532 (1993); Smith, 494 U. S., at
879.
Maine does not dispute that its rule burdens the exercise
of sincerely held religious beliefs. The applicants explain
that receiving the COVID–19 vaccines violates their faith
because of what they view as an impermissible connection
between the vaccines and the cell lines of aborted fetuses.
More specifically, they allege that the Johnson & Johnson
vaccine required the use of abortion-related materials in its
production, and that Moderna and Pfizer relied on aborted
fetal cell lines to develop their vaccines. Complaint ¶¶61–
68. This much, the applicants say, violates foundational
principles of their religious faith. For purposes of these pro-
ceedings, Maine has contested none of this.
That takes us to the question whether Maine’s rule qual-
ifies as neutral and generally applicable. Under this
Court’s precedents, a law fails to qualify as generally appli-
cable, and thus triggers strict scrutiny, if it creates a mech-
anism for “individualized exemptions.” Lukumi, 508 U. S.,
at 537; see also Fulton v. Philadelphia, 593 U. S. ___, ___–
___ (2021) (slip op., at 5–6).
That description applies to Maine’s regulation. The
State’s vaccine mandate is not absolute; individualized ex-
Cite as: 595 U. S. ____ (2021) 3
GORSUCH, J., dissenting
emptions are available, but only if they invoke certain pre-
ferred (nonreligious) justifications. Under Maine law, em-
ployees can avoid the vaccine mandate if they produce a
“written statement” from a doctor or other care provider in-
dicating that immunization “may be” medically inadvisa-
ble. Me. Rev. Stat. Ann., Tit. 22, §802(4–B) (2021). Nothing
in Maine’s law requires this note to contain an explanation
why vaccination may be medically inadvisable, nor does the
law limit what may qualify as a valid “medical” reason to
avoid inoculation. So while COVID–19 vaccines have Food
and Drug Administration labels describing certain contra-
indications for their use, individuals in Maine may refuse a
vaccine for other reasons too. From all this, it seems Maine
will respect even mere trepidation over vaccination as suf-
ficient, but only so long as it is phrased in medical and not
religious terms. That kind of double standard is enough to
trigger at least a more searching (strict scrutiny) review.
Strict scrutiny applies to Maine’s vaccine mandate for an-
other related reason. This Court has explained that a law
is not neutral and generally applicable if it treats “any com-
parable secular activity more favorably than religious exer-
cise.” Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per cu-
riam) (slip op., at 1); see also Fulton, 593 U. S., at ___ (slip
op., at 6); Lukumi, 508 U. S., at 542–546. And again, this
description applies to Maine’s rule. The State allows those
invoking medical reasons to avoid the vaccine mandate on
the apparent premise that these individuals can take alter-
native measures (such as the use of protective gear and reg-
ular testing) to safeguard their patients and co-workers.
But the State refuses to allow those invoking religious rea-
sons to do the very same thing.
Unpack this point further. Maine has offered four justi-
fications for its vaccination mandate:
(1) Protecting individual patients from contracting
COVID–19;
4 DOES 1–3 v. MILLS
GORSUCH, J., dissenting
(2) Protecting individual healthcare workers from
contracting COVID–19;
(3) Protecting the State’s healthcare infrastructure,
including the work force, by preventing COVID–caused
absences that could cripple a facility’s ability to provide
care; and
(4) Reducing the likelihood of outbreaks within
healthcare facilities caused by an infected healthcare
worker bringing the virus to work. App. to Brief for
Respondents, Decl. of Nirav Shah, p. 43, ¶56 (Shah
Decl.).
Now consider the first, second, and fourth of these. No
one questions that protecting patients and healthcare
workers from contracting COVID–19 is a laudable objec-
tive. But Maine does not suggest a worker who is unvac-
cinated for medical reasons is less likely to spread or con-
tract the virus than someone who is unvaccinated for
religious reasons. Nor may any government blithely as-
sume those claiming a medical exemption will be more will-
ing to wear protective gear, submit to testing, or take other
precautions than someone seeking a religious exemption. A
State may not assume “the best” of individuals engaged in
their secular lives while assuming “the worst” about the
habits of religious persons. Roberts v. Neace, 958 F. 3d 409,
414 (CA6 2020). In fact, the applicants before us have al-
ready demonstrated a serious commitment to public health
during this pandemic and expressly stated that they, no
less than those seeking a medical exemption, will abide by
rules concerning protective gear, testing, or the like. Com-
plaint ¶76.
That leaves Maine’s third asserted interest: protecting
the State’s healthcare infrastructure. According to Maine,
“[a]n outbreak among healthcare workers requiring them
to quarantine, or to be absent . . . as a result of illness
caused by COVID–19, could cripple the facility’s ability to
Cite as: 595 U. S. ____ (2021) 5
GORSUCH, J., dissenting
provide care.” Shah Decl. 44, ¶56. But as we have already
seen, Maine does not dispute that unvaccinated religious
objectors and unvaccinated medical objectors are equally at
risk for contracting COVID–19 or spreading it to their col-
leagues. Nor is it any answer to say that, if the State re-
quired vaccination for medical objectors, they might suffer
side effects resulting in fewer medical staff available to
treat patients. If the State refuses religious exemptions,
religious workers will be fired for refusing to violate their
faith, which will also mean fewer healthcare workers avail-
able to care for patients. Slice it how you will, medical ex-
emptions and religious exemptions are on comparable foot-
ing when it comes to the State’s asserted interests.
The Court of Appeals found Maine’s rule neutral and gen-
erally applicable due to an error this Court has long warned
against—restating the State’s interests on its behalf, and
doing so at an artificially high level of generality. According
to the court below, Maine’s regulation sought to “protec[t]
the health and safety of all Mainers, patients, and
healthcare workers alike.” Does 1–6 v. Mills, ___ F. 4th ___,
___, 2021 WL 4860328, *6 (CA1, Oct. 19, 2021). But when
judging whether a law treats a religious exercise the same
as comparable secular activity, this Court has made plain
that only the government’s actually asserted interests as
applied to the parties before it count—not post-hoc reimag-
inings of those interests expanded to some society-wide
level of generality. Fulton, 593 U. S., at ___ (slip op., at 6);
Tandon, 593 U. S., at ___ (slip op., at 2); Lukumi, 508 U. S.,
at 544–545. “At some great height, after all, almost any
state action might be said to touch on ‘. . . public health and
safety’ . . . and measuring a highly particularized and indi-
vidual interest” in the exercise of a civil right “ ‘directly
against . . . these rarified values inevitably makes the indi-
vidual interest appear the less significant.’ ” Yellowbear v.
Lampert, 741 F. 3d 48, 57 (CA10 2014) (quoting J. Clark,
Guidelines for the Free Exercise Clause, 83 Harv. L. Rev.
6 DOES 1–3 v. MILLS
GORSUCH, J., dissenting
327, 330–331 (1969)). This Court’s precedents “do not sup-
port such a lopsided inquiry.” 741 F. 3d, at 57.
That takes us to the application of strict scrutiny. Strict
scrutiny requires the State to show that its challenged law
serves a compelling interest and represents the least re-
strictive means for doing so. Lukumi, 508 U. S., at 546. For
purposes of resolving this application, I accept that what we
said 11 months ago remains true today—that “[s]temming
the spread of COVID–19” qualifies as “a compelling inter-
est.” Roman Catholic Diocese of Brooklyn v. Cuomo, 592
U. S. ___, ___ (2020) (per curiam) (slip op., at 4). At the
same time, I would acknowledge that this interest cannot
qualify as such forever. Back when we decided Roman
Catholic Diocese, there were no widely distributed vac-
cines.1 Today there are three.2 At that time, the country
had comparably few treatments for those suffering with the
disease. Today we have additional treatments and more
appear near.3 If human nature and history teach anything,
——————
1 Our opinion in Roman Catholic Diocese was published on November
25, 2020. COVID–19 vaccines outside of clinical trials weren’t available
to the public until the following month. See P. Loftus & M. West, First
Covid-19 Vaccine Given to U. S. Public, Wall Street J., Dec. 14, 2020,
https: // www.wsj.com /articles/covid-19-vaccinations-in-the-u-s-slated-to-
begin-monday-11607941806.
2 Over 200 million Americans, nearly seven in ten, have received at
least one dose of these vaccines. Nearly six in ten Americans have been
fully vaccinated, including about 85% of those older than 65. See CDC,
COVID–19 Vaccinations in the United States, COVID Data Tracker (Oct.
28, 2021), http://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-
total-admin-rate-total. Among States, Maine has particularly high vac-
cination rates: About 70% of its population has been fully vaccinated,
good for fourth-best in the Nation. See Maine Coronavirus Vaccination
Progress, USA Facts (Oct. 26, 2021), https://usafacts.org/visualizations/
covid-vaccine-tracker-states/state/maine.
3 C. Johnson, Merck’s Experimental Pill To Treat COVID–19 Cuts Risk
of Hospitalization and Death in Half, the Pharmaceutical Company Re-
ports, Washington Post, Oct. 1, 2021, https://www.washingtonpost.
com/health/2021/10/01/pill-to-treat-covid/ (noting that as of October 1,
2021, “[t]he United States moved a major step closer . . . to having an
Cite as: 595 U. S. ____ (2021) 7
GORSUCH, J., dissenting
it is that civil liberties face grave risks when governments
proclaim indefinite states of emergency.
Assuming for present purposes that its interest is a com-
pelling one, Maine has not shown that its rule represents
the least restrictive means available to achieve it. The
State says that, to meet its four stated goals above, 90% of
employees at covered health facilities must be vaccinated.
Shah Decl. 43, ¶54; State Respondents’ Brief in Opposition
9. The State doesn’t offer evidence explaining the selection
of its 90% figure. But even taking it as given, Maine does
not explain how denying exemptions to religious objectors
is essential to its achieving that threshold statewide, let
alone in the applicants’ actual workplaces. Had the State
consulted its own website recently, it would have discovered
that, as of last month, hospitals were already reporting a
vaccination rate of more than 91%, ambulatory surgical
centers 92%, and all other entities roughly 85% or greater.4
Current numbers may be even higher. What’s more,
healthcare providers that employ four of the nine appli-
cants in this case already told the media more than a week
ago that they have reached 95% and 94% vaccination rates
among their employees.5 Many other States have made do
with a religious exemption in comparable vaccine man-
dates. See Brief for Becket Fund for Religious Liberty as
Amicus Curiae 13 (observing that the overwhelming major-
——————
easy-to-take pill to treat covid-19 available in the nation’s medicine cab-
inet”).
4 Maine Center for Disease Control and Prevention, Maine Health Care
Worker COVID–19 Vaccination Dashboard (Oct. 27, 2021), https://www.
maine.gov/dhhs/mecdc/infectious-disease/immunization/publications/health-
care-worker-covid-vaccination-rates.shtml.
5 J. Lawlor, Maine Sees Jump in Vaccinations Among Health Care
Workers as Deadline Nears, Lewiston Sun J., Oct. 14, 2021, https://www.
sunjournal.com/ 2021/10/13/maine-reports-893-cases-of-covid-19-over-a-4-
day-period (Northern Light Health reporting 95.5% vaccination rate,
MaineHealth reporting a 94% rate).
8 DOES 1–3 v. MILLS
GORSUCH, J., dissenting
ity of States with similar mandates provide a religious ex-
emption). Maine’s decision to deny a religious exemption in
these circumstances doesn’t just fail the least restrictive
means test, it borders on the irrational.
Looking to the other traditional factors also suggests re-
lief is warranted. Before granting a stay or injunctive relief,
we ask not only whether a litigant is likely to prevail on the
merits but also whether denying relief would lead to irrep-
arable injury and whether granting relief would harm the
public interest. Roman Catholic Diocese, 592 U. S., at ___–
___ (slip op., at 5–7); see also 28 U. S. C. §1651(a). The an-
swer to both questions is clear. This Court has long held
that “ [t]he loss of First Amendment freedoms, for even min-
imal periods of time, unquestionably constitutes irrepara-
ble injury. ” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plu-
rality opinion). And as we have seen, Maine has so far
failed to present any evidence that granting religious ex-
emptions to the applicants would threaten its stated public
health interests any more than its medical exemption al-
ready does.
This case presents an important constitutional question,
a serious error, and an irreparable injury. Where many
other States have adopted religious exemptions, Maine has
charted a different course. There, healthcare workers who
have served on the front line of a pandemic for the last 18
months are now being fired and their practices shuttered.
All for adhering to their constitutionally protected religious
beliefs. Their plight is worthy of our attention. I would
grant relief.