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

U.S. President Donald Trump holds up a signed executive order as (L-R) U.S. Treasury Secretary Scott Bessent, Secretary of Commerce Howard Lutnick and Interior Secretary Doug Burgum look on in the Oval Office of the White House on April 09, 2025 in Washington, DC.

U.S. President Donald Trump holds up a signed executive order as (L-R) U.S. Treasury Secretary Scott Bessent, Secretary of Commerce Howard Lutnick and Interior Secretary Doug Burgum look on in the Oval Office of the White House on April 09, 2025 in Washington, DC.

Getty Images, Anna Moneymaker

President Trump Invokes Emergency Powers for New Tariffs

In his April 2 executive order on tariffs and previous orders announcing tariffs on Chinese, Canadian, and Mexican imports, President Trump used the National Emergencies Act of 1976 (NEA) and the International Emergency Economic Powers Act (IEEPA) of 1977.

This raises two important questions: Do the National Emergencies Act and IEEPA allow the President to set tariffs, and is the current economic state actually an emergency? (We also covered some tariff history on our full post here, and here on the projected impact, Trump's rationale, and Congress's response.)

Keep ReadingShow less
Innovative Local Solutions Can Ease America’s Housing Crisis
aerial photography of rural
Photo by Breno Assis on Unsplash

Innovative Local Solutions Can Ease America’s Housing Crisis

Across the country, families are prevented from accessing safe, stable, affordable housing—not by accident, but by design. Decades of exclusionary zoning, racial discrimination, and disinvestment have created a housing system that works well for the wealthy but leaves others behind. Even as federal cuts to public housing programs continue nationwide, powerful, community-rooted efforts are pushing back and offering real, equity-driven solutions led by local voices.

Historically, states like New Jersey show what’s possible when legal advocacy and grassroots organizing come together. In 1975, the New Jersey Supreme Court’s Mount Laurel ruling established that every municipality in the state has a constitutional obligation to provide its fair share of affordable housing. This landmark legal ruling reshaped housing policy and set a national precedent. Today, organizations like Fair Share Housing Center continue to defend and expand this right, ensuring that local governments are prohibited from using zoning laws to exclude working-class families or people of color.

Keep ReadingShow less
Trump Welcomes Salvadoran President, Continuing To Collaborate With Far-Right World Leaders

WASHINGTON, DC - APRIL 14: U.S. President Donald Trump meets with President Nayib Bukele of El Salvador in the Oval Office of the White House April 14, 2025 in Washington, DC.

(Photo by Win McNamee/Getty Images)

Trump Welcomes Salvadoran President, Continuing To Collaborate With Far-Right World Leaders

WASHINGTON D.C. - President Donald Trump on Monday said that he would try to deport “as many as possible” immigrants or criminals to El Salvador. Salvadoran President Nayib Bukele met with Trump at the White House to discuss the ongoing deportations of MS-13 and Tren de Aragua gang members to El Salvador’s notorious Center for Terrorism Confinement (CETOC).

Trump has now deported 238 individuals to El Salvador under the 1879 Alien Enemies Act without notice or due process of law. President Bukele has agreed to help Trump with his deportation goals and received $6 million from the White House to continue these efforts.

Keep ReadingShow less
Quiet Death of Dissent
woman in black hijab holding white and black printed board
Photo by Justin Essah on Unsplash

Quiet Death of Dissent

There is something particularly American about the way we're dismantling our democracy these days – we are doing it with paperwork. While the world watches our grand political theater, immigration agents are quietly canceling visas, filling out deportation orders, and reshaping the boundaries of acceptable speech without firing a single shot.

I think about Mahmoud Khalil, a Palestinian activist and Columbia graduate who committed no crime beyond speaking his mind. I think about Rumeysa Ozturk, a doctoral student at Tufts whose academic career hangs by a thread. I think about the estimated 300 international students whose visas are under review or already revoked for daring to participate in First Amendment exercises on campus across the United States. These stories are not just about immigration status but about who is American enough to participate in its democracy and under what conditions.

Keep ReadingShow less