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I am terrified by a paragraph that Supreme Court Justice Neil GorsuchNeil GorsuchWhat's that you smell in the Supreme Court? The Memo: Trump's justices look set to restrict abortion Five revealing quotes from Supreme Court abortion case MORE wrote a few weeks ago. You should be, too. He and two other justices think the Constitution forbids states from imposing, on religious dissenters, the kind of vaccination requirements that freed the United States from diphtheria, measles and polio. If these judges have their way, those diseases may come back.
A bit of background. In June, Justice Samuel AlitoSamuel AlitoFive revealing quotes from Supreme Court abortion case The Supreme Court's criminal justice blind spot How religious liberty was distorted in the age of COVID-19 MORE, joined by Gorsuch and Clarence ThomasClarence ThomasRoberts and Roe: The Supreme Court considers a narrow question on abortion Five revealing quotes from Supreme Court abortion case How religious liberty was distorted in the age of COVID-19 MORE, declared that the Free Exercise Clause of the First Amendment should be understood to hold “that a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest.” The compelling-interest test is, the Court has said, “the most demanding test known to constitutional law.” It means that a right has been infringed, the party challenging the law will probably win and government has a heavy burden of proof.
The Court has never defined what counts as a compelling interest. Generally, it has relied on common sense: an interest that any reasonable person would understand to be very important. Most litigation turns on whether what the law proposes to do is really all that necessary to the end the state is pursuing — whether, for instance, prison security (obviously a compelling interest) is really jeopardized if Muslim inmates grow half-inch beards. But compelling interest is the indispensable starting point. Unless the state can point to such an interest, it will automatically lose.
Now here is the paragraph. In October, the Court declined to block Maine’s requirement that health care workers be vaccinated against the coronavirus notwithstanding their religious objections. Gorsuch, dissenting (joined by Thomas and Alito), wrote:
I accept that what we said 11 months ago remains true today — that “[s]temming the spread of COVID–19” qualifies as “a compelling interest.” At the same time, I would acknowledge that this interest cannot qualify as such forever. Back when we decided Roman Catholic Diocese, there were no widely distributed vaccines. Today there are three. At that time, the country had comparably few treatments for those suffering with the disease. Today we have additional treatments and more appear near. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.
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