Skip to content
Search

Latest Stories

Top Stories

Religious freedom matters but so do public health and voting rights

Justice Neil Gorsuch

Justic Neil Gorsuch aimed elevate what conservatives like to call “religious liberty” to an exalted position among the freedoms to which Americans believe they are entitled, writes Goldstone.

Pool/Getty Images

Goldstone’s most recent book is "On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights."

On Dec. 13, 2021, in a 5-4 decision, the Supreme Court denied an application from 20 New York health care workers to be exempted on religious grounds from the state’s Covid-19 vaccine mandate. The challengers, all but one of whom were Catholic, had claimed that because the three available vaccines had all been derived from or tested on cells acquired from aborted fetuses, the mandate “imposes an unconscionable choice on New York healthcare workers: abandon their faith or lose their careers and their best means to provide for their families.”

To these health care workers, that the fetal cells had been obtained from cell lines decades old made no difference, nor did it matter that the vaccines contained no material from aborted fetuses, nor even that the United States Conference of Catholic Bishops as well as other religious leaders, including the pope, had announced that receiving the vaccines did not violate ecclesiastical law. “Our love of neighbor should lead us to avoid giving scandal,” the chairmen of the Committees on Doctrine and on Pro-Life Activities wrote, “but we cannot omit fulfilling serious obligations such as the prevention of deadly infection and the spread of contagion among those who are vulnerable just to avoid the appearance of scandal.”

Sign up for The Fulcrum newsletter


The court’s majority, which in something of a surprise included Brett Kavanaugh and Amy Coney Barrett, did not issue a written opinion. But the likelihood is that the nature and magnitude of the health care crisis weighed on their decision, just as it had weighed on Catholic Church leaders.

Justice Neil Gorsuch, however, did offer a written dissent, in which Samuel Alito joined. (Gorsuch also dissented in the 5-4 decision upholding a national vaccine mandate for health care workers.) Although Gorsuch claimed to base his judgment on what he termed “official expressions of hostility to religion” by New York Gov. Kathy Hochul, his actual intent, which he revealed later his opinion, was to elevate what conservatives like to call “religious liberty” to an exalted position among the freedoms to which Americans believe they are entitled. (Hochul eliminated the religious exemption for health care workers because “no organized religion” sought it and those who did were not “listening to God and what God wants.”)

Ignoring that lack of vaccination would put at risk not only the health care workers themselves, but all those with whom they came in contact, Gorsuch framed the issue strictly in terms of religious persecution. “The Free Exercise Clause [of the First Amendment],” he wrote, “protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in the performance of (or abstention from) physical acts.” It is odd that Gorsuch would characterize Catholicism as an “unpopular religious belief,” since Catholics represent more than one-fifth of the population and two-thirds of the members of the court.

Gorsuch’s logic is convenient. He claims repeatedly that those “unpopular” religious beliefs — he avoids mentioning Catholicism specifically — have been specifically targeted, as if the law had required only those holding such beliefs to be vaccinated. In fact, eliminating a religious exemption is declaring that religion does not prevent someone, regardless of their beliefs, from being treated the same as everyone else. His attempt to equate medical exemptions with religious ones fails as well: Requiring workers to put their lives or health in jeopardy is hardly the same as refusing a course of action on religious grounds when the acknowledged leaders of that very religion, on whose past pronouncements the challengers based their refusal, have declared such behavior irreligious. By that reasoning, anyone could refuse any mandated behavior simply by pointing to a convenient passage in the Bible, the Quran, the Book of Mormon or any obscure religious text that supported their decision.

His argument also fails to address whether, if the health care workers are justified in refusing to take the vaccine themselves, would they not be equally justified in refusing to give it to others? After all, if the vaccines themselves are sinful, how can the many nurses among the 20 plaintiffs possibly be willing to encourage abortion by perpetuating the same sinful act they have denounced?

In fact, Gorsuch has it backward. The free exercise clause of the First Amendment is designed to prevent the United States from becoming a theocracy, not to encourage it. (The irony here is that a good deal of the sentiment behind that clause was to prevent religious persecution of Catholics, who were indeed a despised minority in much of the nation.) Free exercise of religion has always been balanced against other requirements of a functioning society, public health among them, and must continue to be for other freedoms, such as the freedom to move about in public without fear, to have meaning.

And Gorsuch is not protecting all religions so much as protecting only certain religions. That he favors Christianity can be easily discerned in that he makes no comment on practices that were once the province of other “unpopular religious beliefs,” such as polygamy, which once was standard among Mormons but is now illegal in all 50 states, a prohibition that was upheld by the Supreme Court.

But even if one ignores all these failings and returns to the question of intent, that “the State’s executive decree clearly interferes with the free exercise of religion — and does so seemingly based on nothing more than fear and anger at those who harbor unpopular religious beliefs,” it is necessary to ask whether Gorsuch will apply the same zeal, the same broad standard, to coming lawsuits involving state legislation targeting voting rights as he has to religious liberty.

Read More

Department of Educaiton
What would it mean if President-elect Trump dismantled the US Department of Education?
Flickr

What would it mean if President-elect Trump dismantled the Department of Education?

In her role as former chief executive of World Wrestling Entertainment, Linda McMahon oversaw an enterprise that popularized the “takedown” for millions of wrestling fans. But as President-elect Donald Trump’s nominee for secretary of education, the Trump loyalist may be tasked with taking down the very department Trump has asked her to lead.

If Trump does dismantle the Department of Education as he has promised to do, he will have succeeded at something that President Ronald Reagan vowed to do in 1980. Just like Trump, Reagan campaigned on abolishing the department, which at the time was only a year old. Since then, the Republican Party platform has repeatedly called for eliminating the Education Department, which oversees a range of programs and initiatives. These include special funding for schools in low-income communities – known as Title I – and safeguarding the rights of students with disabilities.

Keep ReadingShow less
Person i jacket that reads "War Crimes prosecutor"

A war crimes prosecutor examines the consequences of a Russian missile attack in central Odesa, Ukraine, on Nov. 25.

Ukrinform/NurPhoto via Getty Images

The current status and the future of the war in Ukraine

Ukraine is in the crosshairs of politics, domestically and globally. What is the status of this war, and what does the future hold for the Ukrainian people?

On Nov. 18, the Network for Responsible Public Policy hosted a virtual discussion to answer these questions and many more about the current situation on the ground, U.S. political sentiments and challenges, Russia’s threats to the region, its cozy relationship with some American leaders and more.

Keep ReadingShow less
US Capitol
Free Agents Limited/Getty Images

Trump’s agenda will face hurdles in Congress, despite the Republican ‘trifecta’ of winning the House, Senate and White House

Beginning in January 2025, Republicans in Washington will achieve what’s commonly known as a governing “trifecta”: control over the executive branch via the president, combined with majorities for their party in both the House and the Senate.

You might think that a trifecta, which is also referred to as “unified government” by political scientists, is a clear recipe for legislative success. In theory, when political parties have unified control over the House, the Senate and the presidency, there should be less conflict between them. Because these politicians are part of the same political party and have the same broad goals, it seems like they should be able to get their agenda approved, and the opposing minority party can do little to stop them.

But not all trifectas are created equal, and not all are dominant.

Keep ReadingShow less
Israeli and Palestinian flags
Wong Yu Liang/Getty Images

A three-province framework for peace between Israel and Palestinians

A framework for peace between Israel and the Palestinians cannot be just about piecemeal de-escalation. To succeed, it must have a vision for long-term, bicultural relationships and mutual security. That is how we generate the comfort necessary to make the immediate changes to stop the casualties and bring home the hostages. That is the goal of the Balkin Israel-Palestine Project.

Presently, the majority of Israelis would like the Palestinians in the occupied territories to be gone; and a majority of those Palestinians would like the Jews not to have their own state in the Levant. This writing provides an outline for reconfiguring the land and placement of people, by religion and culture. It is not intended to be a strict edict for what must occur for there to be peace. It is instead a vision to begin a negotiation for a ceasefire followed by a more permanent peace.

Keep ReadingShow less