The Delta variant is eight times more contagious – just plain traveling through the air – than its predecessor Alpha variant. There are more mutations to come, although we just do not know whether they will strengthen or weaken the virus. The United States still holds the world record – over 750,000 – for COVID deaths. And even with high vaccination rates, we are not even close to herd immunity. Even as potential treatments are in clinical testing, we seem to be lingering in a world not dissimilar to the HIV epidemic that has been with us for decades. To this date, while we are now able to contain that virus, there still is no cure. But HIV was not transmitted by breathing; it required intimate contact, sharing tainted blood or injection needles or some other deep physical contact. COVID, unfortunately, is an excellent traveler, requiring no physical contact to infect. Will it just linger for years?
Taking reasonable precaution, from social distancing and wearing breathing masks to getting vaccinated, remains a political issue. A red-versus-blue divide where Trump/GOP loyalty is tested by a view that the coronavirus is not deadly, real, highly contagious and economically disruptive; it is instead viewed as a “bad flu” with attempts to contain its transmission by government mandate an unconstitutional infringement of individual rights. For anyone familiar with constitutional precedent (see the 1905 Supreme Court case of Jacobson vs Massachusetts and cases following), we know there is no constitutional right to avoid reasonable government mandates to control a pandemic. Given the massive impact of the disease on interstate commerce, it’s pretty obvious that the federal government is well within its rights to mandate reasonable protective measures. Conspiracy theories to the contrary, lives are at stake.
But governmental and private entities are giving wide discretion to mandate-exemption for so-called “good faith and firmly held” religious (or in some cases, “personal”) beliefs. While there is no major faith that has declared such mandates must not be followed by true believers, lots of individuals are coming up with reasons why their beliefs must exempt them from vaccines or more. A First Amendment protection against government’s infringement on religious beliefs? But since the virus does not discriminate based on religious beliefs, and since a faithful adherent is fully capable of infecting many others, does this religious exemption have validity or not? There are more than a few evangelical pastors, mostly in red states, willing to write a religious exemption letter on behalf of anyone who asks. And exactly how does an employer, business or governmental entity ascertain the “good faith” requirement? There are six states that impose COVID vaccine mandates with no religious exemptions… and a lot of conservatives who believe such a posture is unlawful.
Writing for the October 20th Journal of the American Bar Association, writer Debra Cassens Weiss explores a conflict between two federal cases – John Does 1-3 v. Mills in Maine and Dr. A v. Hochul in New York – dealing with whether there must be a religious exemption for COVID vaccination mandates: “U.S. District Judge Jon Levy of the District of Maine allowed Maine to impose a vaccine mandate without a religious exemption, finding no First Amendment violation in an Oct. 13 opinion. On Oct. 15, the 1st U.S. Circuit Court of Appeals at Boston declined to block the mandate pending appeal…
“U.S. Supreme Court Justice Stephen G. Breyer on Tuesday [10/19] refused to block a COVID-19 vaccine mandate for Maine health care workers that did not include an exemption for religious exemptions… Breyer’s Oct. 19 order said those challenging the vaccine requirement could return to the Supreme Court after a federal appeals court rules on the merits of their appeal or if the appeals court doesn’t issue a decision by Oct. 29, when the requirement will be enforced…
“A different federal judge in New York, however, ruled Oct. 12 that New York can’t impose a vaccine mandate without a religious exemption. U.S. District Judge David Hurd of the Northern District of New York issued a preliminary injunction barring health officials from interfering with religious exemptions, the New York Times reports. The case is Dr. A v. Hochul.
“On Oct. 13, the 2nd Circuit at New York temporarily delayed arguments in a different case challenging the same New York mandate. The court noted Hurd’s injunction, signaling the appeals court ‘may wish to consider appeals in both cases at the same time,’ according to Bloomberg coverage at the time. That case is We the Patriots USA v. Hochul.”
The Supreme Court has already ruled against state mask and distancing requirements specifically targeting church services (NY) or religious gatherings in private homes (California), but that decision has yet to apply outside of targeted religious worship. If we are dealing with across-the-board restrictions, not targeting faith-based gatherings but including them in a broader mandate, the matter has yet to be addressed by the Court. And with the conflicting rulings above on vaccine mandates, there is just one much bigger issue to consider. If the virus could file a supporting amicus brief, there is little doubt which side it would take.
I’m Peter Dekom, and with clear evidence of the efficacy of vaccine mandates in a time of a killer and economically destructive pandemic, it’s time for the Supreme Court to take politics and religion out of this existential threat.
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