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Mandatory vaccination and constitutional interpretation

The religious Right (or apparently a substantial number of them) were reportedly aggrieved because of a recent ruling by the US Supreme Court. The case was John Does 1-3 vs. Mills, which saw Justices Brett Kavanaugh and Amy Coney-Barrett joining Justice Stephen Breyer to vote against an application for injunctive relief. The main matter at issue was a Maine law requiring the vaccination of healthcare workers.

As explained by Justice Coney-Barrett: “When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant ‘is likely to succeed on the merits.’… I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case. … Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merit’s preview in cases that it would be unlikely to take — and to do so on a short fuse without benefit of full briefing and oral argument. In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.”

Justice Neil Gorsuch (along with Justices Clarence Thomas and Samuel Alito) disagreed: “With Maine’s new rule coming into effect, one of the applicants has already lost her job for refusing to betray her faith; another risks the imminent loss of his medical practice. Maine does not dispute that its rule burdens the exercise of sincerely held religious beliefs. The applicants explain that receiving the COVID-19 vaccines violates their faith because of what they view as an impermissible connection between the vaccines and the cell lines of aborted fetuses. More specifically, they allege that the Johnson & Johnson vaccine required the use of abortion-related materials in its production, and that Moderna and Pfizer relied on aborted fetal cell lines to develop their vaccines. This much, the applicants say, violates foundational principles of their religious faith. For purposes of these proceedings, Maine has contested none of this.”

Now the reason why the religious Right felt betrayed was because they previously vociferously supported Kavanaugh’s and Coney-Barrett’s nominations in the belief that they were conservatives that would rule automatically in favor of religion. Which was all, unfortunately, a huge misunderstanding of the two justices’ legal and judicial philosophy.

The ruling, to clarify, did not involve the actual merits of the case but referred to the US Supreme Court’s “shadow docket,” an emergency relief, which do not involve oral arguments or extensive briefs. Such remedies always present the possibility of consequences that in no way could be justified by the overall facts of the case. Thus Coney-Barrett and Kavanaugh’s call for restraint, with the further implication that their vote on the merits phase of the case could be far different depending on the full arguments presented.

Also, whether Coney-Barrett and Kavanaugh are conservatives or not, good religious individuals or not, are beside the point. They were nominated and appointed as justices of the US Supreme Court, whose job is to apply the US Constitution. That the two are avowed “originalists” or “textualists” precisely serves this point: they are there not to uphold an agenda, religion, or ideology (as “living constitutionalists” are wont to do) but rather to uphold their Constitution as written. This is the democratic and rule of law-oriented way of resolving legal issues.

Of course, what complicates this understanding about constitutional interpretation is that the three justices that dissented are also avowed originalists or textualists (and good Catholics to boot). For his part, Gorsuch emphasized that the “case presents an important constitutional question, a serious error, and an irreparable injury. Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the frontline of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention. I would grant relief.”

Put another way, the “question confronting any injunction or stay request [is] whether the applicants are likely to succeed on the merits.” Yet, as Gorsuch posits, the “first Amendment protects the exercise of sincerely held religious beliefs. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, … [and that] laws that single out sincerely held religious beliefs or conduct based on them for sanction are “doubtless… unconstitutional.”

In any event, despite the (current) differences in approach between Gorsuch/Thomas/Alito and Coney-Barrett/Kavanaugh, what is important is that the majority of the present US Supreme Court sees as starting point the actual words and meaning of the US Constitution, rather than as taught in many Philippine law schools that the words and meaning of the Philippine Constitution change with the times and can be reinvented by lawyers or judges to suit their own personal beliefs and ideologies.

Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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