DR. A., ET AL. v. KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL.
No. 21–1143
SUPREME COURT OF THE UNITED STATES
June 30, 2022
597 U. S. ____ (2022)
THOMAS, J., dissenting
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE ALITO and JUSTICE GORSUCH join, dissenting from the denial of certiorari.
In August 2021, New York mandated that all healthcare workers receive a COVID–19 vaccine. See
Petitioners are 16 healthcare workers who served New York communities throughout the COVID–19 pandemic. They object on religious grounds to all available COVID–19 vaccines because they were developed using cell lines derived from aborted children. Pet. for Cert. 8. Ordered to choose between their jobs and their faith, petitioners sued in the U. S. District Court for the Northern District of New York, claiming that the State‘s vaccine mandate violated the Free Exercise Clause. The District Court agreed and issued a preliminary injunction. ___ F. Supp. 3d ___, ___, 2021 WL 4734404, *8 (Oct. 12, 2021). The Court of Appeals reversed. We the Patriots USA, Inc. v. Hochul, 17 F. 4th 266 (CA2 2021) (per curiam); We the Patriots USA, Inc. v. Hochul, 17 F. 4th 368 (CA2 2021) (per curiam). This Court then denied petitioners’ emergency application to reinstate the injunction, which three of us would have granted. See Dr. A., 595 U. S., at ___ (slip op., at 1). Since then, “every Petitioner except one has been fired, forced to resign, lost admitting privileges, or been coerced into a vaccination.” Pet. for Cert. 13–14, and n. 10.
Petitioners now ask us to review the Court of Appeals’ decision vacating the District Court‘s preliminary injunction. I would grant the petition. We have held that a “law . . . lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government‘s asserted interests in a similar way.” Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (slip op., at 6). Yet there remains considerable confusion over whether a mandate, like New York‘s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves. Three Courts of Appeals and one State Supreme Court agree that such requirements are not neutral or generally applicable and therefore trigger strict scrutiny.1 Meanwhile, the Second Circuit has joined three other Courts of Appeals refusing to apply strict scrutiny.2 This split is widespread, entrenched, and worth addressing.
Moreover, I would not miss the chance to answer this recurring question in the normal course on our merits docket. Over the last few years, the Federal Government and the States have enacted a host of emergency measures to address the COVID–19 pandemic. Many were not neutral toward religious exercise or generally applicable. See, e.g., Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 4) (listing four other cases from the Ninth Circuit alone); Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020). Circumstances forced us to confront challenges to those measures in an emergency posture, a practice that Members of this Court have criticized. See, e.g., Merrill v. Milligan, 595 U. S. ___, ___ (2022) (KAGAN, J., dissenting from grant of application for stay) (slip op., at 11) (lamenting use of the so-called “shadow docket to signal or make changes in the law, without anything approaching full briefing and argument“). Here, the Court could grant a petition that squarely presents the disputed question and consider it after full briefing, argument, and deliberation.
Unfortunately, the Court declines to take this prudent course. Because I would address this issue now in the ordinary course, before the next crisis forces us again to decide complex legal issues in an emergency posture, I respectfully dissent.