General Publications December 15, 2020

“Clues Mandatory Vaccines Would Pass Muster at High Court,” Law360, December 15, 2020.

Extracted from Law360

 In 1905, the U.S. Supreme Court upheld the city of Cambridge, Massachusetts' mandated smallpox vaccinations in Jacobson v. Massachusetts,[1] proclaiming:

[T]here are manifold restraints to which every person is necessarily subject for the common good.

Over the 100-plus years since, courts have confirmed and reconfirmed states' authority to require vaccinations in the name of public health — even in the face of First Amendment challenges.[2]

Despite the Supreme Court's recent signaling that the free exercise of religion may trump certain public health measures implemented to combat the COVID-19 pandemic, mandatory vaccinations are unlikely to disappear anytime soon.

Since March 2020, when some states began imposing sweeping measures to slow COVID-19's spread, the Supreme Court has, in three cases, addressed the constitutionality of such measures in the face of challenges premised on religious freedom.[3]

Although the most recent decision invalidated a New York state intervention, a close read of the cases suggests that a mandatory vaccination requirement would likely still survive scrutiny — even under the realigned Supreme Court.[4]

South Bay

In the first case, South Bay United Pentecostal Church v. Newsom,[5] on May 29, a majority of the court, including the four liberal justices along with Chief Justice John Roberts, denied a church's application for injunctive relief against California Gov. Gavin Newsom's executive order limiting attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.

The majority didn't issue an opinion, but the chief justice wrote a separate concurrence explaining that the court should issue injunctions that lower courts had denied only when "the legal rights at issue are indisputably clear," and even then "sparingly and only in the most critical and exigent circumstances."

Although the order undoubtedly placed restrictions on the church, the chief justice found that the order's unconstitutionality was not "indisputably clear," as it placed "[s]imilar or more severe restrictions" on comparable secular gatherings and exempted or treated more leniently "only dissimilar activities," such as operating grocery stores and banks.

In dissent, Justice Brett Kavanaugh, joined by Justices Neil Gorsuch and Clarence Thomas, rejected the chief justice's claim that only comparable secular businesses were subject to the limitation. Justice Kavanaugh's dissent was driven by his concern that the order discriminated against religious organizations.

And although he acknowledged California's "compelling interest in combatting COVID-19 and protecting the health of its citizens," Justice Kavanaugh found that it lacked a compelling interest in distinguishing between religious services and other secular activities not subject to the cap.

Calvary Chapel

Two months later, on July 24, the high court faced another church's application for an injunction against imposition of the Nevada governor's directive limiting permissible attendance at certain venues.

In Calvary Chapel Dayton Valley v. Sisolak,[6] although the limitation at issue was more restrictive — limiting attendance at a church, mosque, or synagogue to 50 people — and exempted secular businesses like casinos and gyms that are arguably more like churches, at least in terms of COVID-19 exposure risks, than the limitation in South Bay, the same majority denied the injunction without comment.

Despite the silent majority, Calvary Chapel inspired three separate dissents. Justice Samuel Alito penned the first dissent, joined by Justices Thomas and Kavanaugh, focusing on the state's discrimination against religious services without showing that they would "pose any greater risk to public health than many other activities that the directive allows."

He explained that although courts may tolerate very blunt public health measures at the outset of an emergency, those measures must become more narrowly tailored to account for constitutional rights over time as "more medical and scientific evidence becomes available."

Justice Alito considered and rejected several of the state's arguments, including that certain other venues were treated less favorably than churches and that the state was better able to police compliance with precautions at casinos than at churches.

He specifically rejected the state's argument that its directive is permissible under Jacobson v. Massachusetts, calling it a:

[C]onsiderable stretch to read [Jacobson] as establishing the test to be applied when statewide measures of indefinite duration are challenged.

Next, Justice Gorsuch wrote a short dissent that similarly focused on discrimination against religious interests in favor of certain secular interests saying:

[T]here is no world ... in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Justice Kavanaugh wrote a third dissent to outline why the state's directive was unconstitutional in his view. According to Justice Kavanaugh, the directive at issue was likely to violate the Constitution because it "favors or exempts some secular organizations as opposed to religious organizations" and the state hadn't "sufficiently justified the basis for the distinction."

"COVID-19," Justice Kavanaugh wrote, "is not a blank check for a State to discriminate against religious people, religious organizations, and religious services."

Roman Catholic Diocese

The court didn't hear the third case, Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York,[7] until four months — and a Supreme Court justice swap — later and reached a different result from the two preceding cases.

On Nov. 25, the per curiam majority, consisting of Justices Alito, Thomas, Gorsuch, and Kavanaugh, along with newly sworn-in Justice Amy Coney Barrett, granted a church and synagogue injunctive relief against an executive order that had limited them to rigid 10- and 25-person occupancy limits — by the time the court issued its opinion, New York's governor had reclassified the petitioners' restriction zones, and they were allowed to operate at 50% capacity.

The new majority focused again on religious discrimination, finding that the executive order treated religious organizations less favorably than certain secular businesses.

The court then found that, although "stemming the spread of COVID-19 is unquestionably a compelling interest," New York's challenged regulations were not narrowly tailored because there were "many other less restrictive rules that could be adopted to minimize the risk to those attending religious services."

Justice Gorsuch wrote a separate concurrence doubling down on claims of religious discrimination, but he didn't stop there. Justice Gorsuch specifically criticized Justice Roberts' reliance on Jacobson v. Massachusetts in his South Bay concurrence.

He distinguished Jacobson v. Massachusetts on several grounds, including that it predated the court's modern tiers of scrutiny and that the claim of a right to "bodily integrity" at issue in Jacobson was seemingly inferior to the "textually explicit right to religious exercise." Justice Gorsuch disparaged courts' reliance on Jacobson as "slacken[ing] their enforcement of constitutional liberties while COVID lingers."

In his own separate concurrence, Justice Kavanaugh turned the focus back to religious discrimination, pointing out that New York's attendance caps were "much more severe than most other States' restrictions."

As he did in Calvary Chapel, he found that the state had not sufficiently justified why certain secular interests were favored over religious interests.

Justice Kavanaugh warned that:

[J]udicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.

However, he also specifically underscored the "extraordinarily serious and deadly" nature of the COVID-19 pandemic and that federal courts must "afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic."

Chief Justice Roberts dissented, seemingly because the applicants were no longer under the strict 10- and 25-person attendance caps they complained about. But by acknowledging that the caps seemed "unduly restrictive" and that "it may well be that such restrictions violate the Free Exercise Clause," he signaled that he may have supported an injunction if the caps had remained in place.

Next, Justice Stephen Breyer wrote a dissent joined by Justices Sonia Sotomayor and Elena Kagan. Justice Breyer agreed with the chief justice that there was no need to issue an injunction at that point because the applicants were no longer subject to the strict attendance caps.

And even if they were, he questioned the use of the extraordinary remedy of injunction when it was "far from clear" that the applicants had shown that the order violated their rights under the present circumstances.

Justice Breyer placed a greater emphasis on medical and scientific experts' opinions that there is a higher risk of virus transmission in environments similar to those present at churches — where people are "in close contact with one another for prolonged periods of time" indoors.

According to Justice Breyer, public officials must have broad discretion to "act in areas fraught with medical and scientific uncertainties" so that they can "marshal scientific expertise and craft specific policies in response to 'changing facts on the ground.'"

Finally, Justice Sotomayor wrote a dissent joined by Justice Kagan, explaining that South Bay and Calvary Church put forth a clear rule for states to follow for imposing COVID-19 attendance limitations: "They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict."

Justice Sotomayor found New York's order permissible because it treated more leniently than religious services "only dissimilar activities" that did not involve people congregating in large groups or remaining in close proximity for extended periods. "Justices of this Court," she warned, "play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily."


Despite the divergent views that the justices expressed throughout these cases, there is substantial agreement on certain core propositions, notably that COVID-19 poses a serious and deadly threat to Americans, vaccines will be an important tool in combating it, governments across the U.S. have a compelling interest in combating it, and public health officials require a certain level of deference in determining the appropriate ways to do so.

The disagreements are mostly about the degree to which the states' interventions disparately treat religious interests versus secular ones and whether the disparate treatment is justified.

But even though the contours of any mandatory COVID-19 vaccination measures are still on the horizon, they are unlikely to require the type of gerrymandering of secular and religious interests that animated the concerns that several justices had with the restrictions in South Bay, Calvary Chapel and Roman Catholic Diocese.

Unlike many state-imposed attempts to combat COVID-19, mandatory vaccinations will be nothing new. Whether any particular requirement passes constitutional muster will depend on numerous factors, including which type of government — federal, state or local — imposes it, which types of exemptions (if any) are available, the prescribed enforcement mechanisms, and — of course — the precise language establishing the requirement.

But the court's recent opinions in South Bay, Calvary Chapel and Roman Catholic Diocese should help to assuage, rather than stoke, public health experts' concerns about impending judicial eradication of mandatory vaccination measures that governmental authorities might deem essential in the fight against COVID-19.

[1] Jacobson v. Massachusetts , 197 U.S. 11 (1905).

[2] See Hoernlein, Michael & Gauthier, Rebecca, "Measles Vaccine Mandates Have Strong Legal Footing," Law360 (April 23, 2019).

[3] The court also has remanded another case, Harvest Rock Church v. Newsom, 592 U.S. __ (2020), in light of these three cases.

[4] In addition to the religion-based challenges discussed in this article, vaccine mandates can also face other types of constitutional, statutory, or state-law challenges.

[5] S. Bay United Pentecostal Church v. Newsom , 140 S. Ct. 1613 (2020).

[6] Calvary Chapel Dayton Valley v. Sisolak , 140 S. Ct. 2603 (2020).

[7] Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York , 592 U.S. __ (2020).

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