The U.S. Supreme Court last week declined to stop a state vax mandate for healthcare workers invoking religious objections. It declined to halt New York Governor Kathy Hochul’s denial of the First Amendment religious rights of healthcare workers. Only three justices stepped forward to intervene: Neil Gorsuch, Samuel Alito, and Clarence Thomas. Gorsuch was clearly disappointed with his colleagues, no doubt Amy Coney Barrett and Brett Kavanaugh chief among them.
“No one seriously disputes that, absent relief, the applicants will suffer an irreparable injury,” stated Gorsuch, denouncing New York’s intention to fire workers and strip their unemployment benefits. This undermining of First Amendment freedoms “alone is sufficient to render the mandate unconstitutional.”
Gorsuch added in his 14-page dissent: “The Free Exercise Clause 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.’” He concluded: “Today, we do not just fail the applicants. We fail ourselves.”
Among those failed, Gorsuch pointed to two New York Catholic physicians who object to the vaccines’ incorporation of aborted fetal cell lines:
These applicants are not “anti-vaxxers” who object to all vaccines. Instead, the applicants explain, they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing. The applicants acknowledge that many other religious believers feel differently about these matters than they do. But no one questions the sincerity of their religious beliefs.
An added injustice is that these healthcare workers were the front-line first-responders when New York was first under siege from COVID (many acquired natural immunity from that exposure). They feel an ingratitude from their governor. That governor, ironically, has not hesitated to insist that God is on her side on this matter. Gorsuch quoted Hochul:
The day before the mandate went into effect, Governor Hochul again expressed her view that religious objections to COVID–19 vaccines are theologically flawed: “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”… The Governor offered an extraordinary explanation for the change too. She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.”
Governor Kathy Hochul invoked her religious beliefs to vaccinate New Yorkers against their will, while simultaneously saying those New Yorkers could not invoke their First Amendment religious rights to protect themselves. The Supreme Court effectively shielded her, not them. Gorsuch’s objection received literal silence from the six other justices: Barrett, Kavanaugh, John Roberts, and the three liberals—Sonia Sotomayor, Stephen Breyer, and Elena Kagan.
Particularly notable was the silence from Barrett, Kavanaugh, and Roberts. New York’s healthcare workers likely expected scant protection from the court’s liberals, but the lack of backing from justices known for defending religious liberty was a major letdown. It points to a larger and growing problem throughout the pandemic.
Sadly, not only are religious rights not being respected, but they are being widely suspected. Increasingly as the pandemic has worn on, supporters of forced vaccination are insisting that many Americans seeking religious exemptions aren’t actually religious. They’re faking it, hiding behind phony faith claims. What really is “religious?” the New York Times asks.
To be sure, one would hope that most people making religious appeals are genuinely religious. Surely some are not. On its face, this seems a legitimate criticism. But think again. Dig deeper into the history of American religious-conscientious objection.
Note the crucial second word there: conscientious.
From the start of the religious-appeal process against COVID mandates, I’ve been concerned that these appeals are more often labeled by employers as “religious exemptions.” They ought to be called religious/conscientious exemptions—that is, appeals based not merely on one’s religious faith but on conscience. This is a critical distinction.
Conscientious objection, of course, has a long and noble history in America. (We held a conference on the topic in 2019). There are few more honored rights in our history and Judeo-Christian tradition. One of our most revered founders, James Madison, father of the Bill of Rights, insisted that an individual’s conscience was a possession “more sacred than his castle.” Just as one has the right to property, one has the right to conscience, which the state should not infringe upon. Your conscience is yours, and it’s sacred. In fact, it’s part of an eternal nature that transcends the mere physical.
Madison said that “all men are entitled to the full and free exercise of religion, according to the dictates of conscience.” He argued for inclusion of freedom of conscience in the Bill of Rights. He made that argument in Philadelphia, where William Penn, a century earlier, had implemented a historic Act for Freedom of Conscience.
This freedom has served America so admirably for centuries, from conscientious objectors in World Wars I and II to the Vietnam War, from the appeals of citizens as diverse as the Quakers, Mennonites, Sergeant Alvin York, Desmond Doss, Muhammad Ali, the Berrigan brothers, and Martin Luther King Jr. Today, it is appealed to by the likes of Hobby Lobby, the Little Sisters of the Poor, Kim Davis, and court cases such as Arlene’s Flowers v. the State of Washington, Zubik v. Burwell, and Planned Parenthood v. Casey.
Liberals are aggressive supporters of conscience when it comes to, say, refusal to fight in an unpopular war. It’s a great irony that liberals who once championed conscientious objection for the Vietnam draft-dodger spurn it for the Baptist florist or Christian cake-baker who beg to decline serving a same-sex wedding, or now for millions of Americans claiming rights of conscience against mandatory vaxxing.
Our onetime precious consensus on conscience is being ignored unlike ever before and redefined unlike ever before.
James Madison lost his effort to get the word “conscience” in the First Amendment, and it’s too bad he did. Nonetheless, courts have long honored appeals to one’s conscience as well as appeals to one’s religion.
Indulge me as I take this to a deeper theological-philosophical level, one that justices like Amy Coney Barrett and Brett Kavanaugh, both products of Catholic education and likely admirers of Pope John Paul II, ought to be able to appreciate.
The late pope for decades was one of the world’s leading voices on conscience. He stressed the dignity of the human person and the sanctity of the free will that the Creator bestowed on all human beings. In his August 1993 Veritatis Splendor (The Splendor of Truth), he wrote: “The relationship between man’s freedom and God’s law is most deeply lived out in the ‘heart’ of the person, in his moral conscience.” Citing the Second Vatican Council, he noted that in the depths of our conscience, we detect a law which we do not impose on ourselves, but which nonetheless holds us to obedience. This is a law written into the heart of all men and women by God, telling us “do this, shun that.” To obey it is the very dignity of man; according to it he will be judged (Romans 2:14-16).
The pope brought that message directly to our shores, telling Americans in Miami in September 1987: “The only true freedom, the only freedom that can truly satisfy, is the freedom to do what we ought as human beings created by God according to his plan.”
As noted by political scientist Thomas Rourke, “Possessed with reason and free will, the person seeks vertical transcendence when he seeks to know the truth and act in accord with it.” To arbitrarily interfere with this search for the truth, or to prevent a person from acting according to the demands of conscience—as oppressive governments do—is to deny people their right to responsible personhood.
How a person chooses to act defines the person. Our moral choices matter and, in a sense, make us. This is the very essence of John Paul II’s published work (as Karol Wojtyla), The Acting Person. God wants us to choose rightly. It is truly about how the person acts in accord with the conscience that God gave us.
John Paul II’s conception of the human person speaks not only to the dignity of the person but also as the person living within community. That includes a community like the America of the founders that created a system that honors the dignity of that person and his or her conscience.
For our modern state to act as an obstacle to an individual moral relationship with God is an affront. It is an outrage. Not only would popes be outraged but so would our founding fathers.
Again, James Madison: “The Religion then of every man must be left to the conviction and conscience of every man: and it is the right of every man to exercise it as these may dictate.”
In short, modern Americans stand on firm ground whether they appeal to their religion or conscience. Vax mandates should be no exception. It’s already terribly troubling that COVID survivors with natural immunity rarely receive medical waivers even with letters from their physicians arguing that vaccination could be counterproductive and unhealthy. Religious and conscience appeals, however, ought to be literally sacrosanct.
This should be a matter of not only religion but conscience. It’s incumbent upon critics and HR departments and governments to realize and honor this. In this nation, your conscience must remain sacred.