Then, in June, in Fulton v. City of Philadelphia, the Supreme Court held that Philadelphia’s refusal to place children with a Catholic foster care agency that wouldn’t work with same-sex parents was unconstitutional. According to the court, because the city’s foster care contract said that agencies cannot reject foster or adoptive parents based on sexual orientation “unless an exception is granted,” the city allowed for exemptions and therefore had to offer the Catholic agency one for religious purposes.
By holding 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 vaccine resisters: You can challenge the constitutionality of any denial of a request for a religious exemption. In response, vaccine resisters have kept litigation flowing.
With once-settled doctrine upended, lower courts have reached different conclusions about the constitutionality of Covid-19 vaccine mandates. In the Maine case, Jane Does 1-6 v. Mills, the Court of Appeals for the First Circuit emphasized the distinctions between medical and religious exemptions and refused to block Maine’s vaccine mandate for health care workers, which did not offer religious exemptions.
In contrast, in early October, the U.S. Court of Appeals for the Sixth Circuit found that Western Michigan University’s refusal to grant religious exemptions to student athletes was most likely unconstitutional because the mandate allowed for medical exemptions. This was similar to the reasoning that Justice Neil Gorsuch used in his dissent in Mills, which Justices Clarence Thomas and Samuel Alito joined. Troublingly, Justice Gorsuch also questioned how much longer the state’s interest in controlling the pandemic should be considered compelling.
The Supreme Court’s decision in Mills shows it is in no rush to block mandates. Yet, because the majority’s views on the merits remain uncertain, lower courts are likely to continue to go in different directions. The Supreme Court may eventually decide to hear a case using its regular procedures.
If it does, its decision will have significant ramifications for vaccine mandates. Health conditions that warrant medical exemptions are relatively rare. Religious exemptions, by contrast, pose a far greater threat to vaccination efforts. Although very few religions object to the Covid-19 vaccines, policing the sincerity of someone seeking a religious exemption can be difficult and, as the Western Michigan University case shows, denying a requested exemption can now be constitutionally risky.
More worrisome, a decision by the Supreme Court that rejects its own precedent on vaccine mandates and ignores the distinctions between medical exemptions and religious exemptions will reverberate far beyond the Covid-19 pandemic. Whether or not the court intended to unsettle the constitutionality of vaccine mandates, it has done so. A ruling requiring religious exemptions for vaccine mandates will create more uncertainty and encourage people to demand a religious exemption to any health law they do not like.
The choice to invite that future belongs to the justices, but the consequences will be ours.