Maine has a regulation requiring large numbers of health care workers to get the COVID-19 vaccines or be barred from working.  The regulations allow exemptions for medical reasons but refuse them for religious reasons.  Eight people who object to the vaccines' connection to abortion sought an emergency injunction so that they wouldn't be forced to choose between a vaccine that offends their religious principles or losing their right to practice medicine.  Justices Barrett and Kavanaugh joined with the leftists to deny this injunction.  In truly insulting fashion, Barrett wrote a short concurrence that is pure legal gibberish.

To understand how nonsensical Barrett's one-paragraph statement is, it's worth first reading Justice Gorsuch's dissent, in which Justices Thomas and Alito joined.  After stating the facts, Gorsuch makes some simple, clear points:

A baseline for an injunction is the likelihood of success on the merits.  Gorsuch holds out the promise that the petitioners are likely to succeed on the merits because the Maine regulation is deliberately discriminatory against religion, something that manifestly violates the First Amendment.

States can engage in actions that discriminate against religion if the state's acts are generally applicable and manifestly neutral.  Even if the state's acts don't comport with one or another of those tests, they may still squeak by a strict scrutiny analysis if the state can be shown to have a compelling state interest and to have used the least restrictive means possible to achieve that interest.

In his brief analysis, Gorsuch points out that Maine did not deny that it was discriminating against religious people, so the question became one of compelling state interest.  In the case of the regulation, Maine contends that the regulation is to protect (1) patients, (2) health care workers, and (3) the entire health care infrastructure because of too many sick employees, as well as (4) limiting the risk of outbreaks within health care centers.  This all ignores the fact that vaccinated people are COVID-catchers and COVID-carriers.  However, for purposes of the opinion, Gorsuch accepted these claims as true.

Gorsuch agreed that the state has an interest in protecting patients and health care workers, but he pointed out that Maine cannot claim that people unvaccinated for health reasons are safer to be around than people unvaccinated for religious reasons.  The same logic applies to the possibility of too many employees getting sick, breaking the system: there's no evidence that unvaccinated religious people are more likely to break the system than those unvaccinated for health reasons.

Gorsuch also attacked the appellate court for engaging in "an error this Court has long warned against," which was giving way too much credence to Maine's position.  That error led to a ruling against the petitioners, necessitating the request for an injunction.

There's more, but here's the gist: the applicable, longstanding law shows that Maine discriminates against religion without any good reason for doing so, meaning that the petitioners are likely to win.  Gorsuch's short dissent is a thoughtful, powerful statement about the controlling facts and the applicable law, not to mention the irreparable harm to people forced to decide between a vaccination against their faith and the destruction of their careers while waiting months or years for the Supreme Court to act.

And then there's Barrett's nonsensical concurrence with the leftists' denial of injunctive relief.  She states correctly that injunctive relief requires a preliminary determination that the petitioner is likely to succeed when the full case comes before the Court.  While she understands that this means looking at the facts and law, she also says the Court ultimately has the discretion to say no.  If it does say no, it doesn't have to bother making a preliminary analysis about the facts and law.  Because this is a case of first impression, she implies, the Court shouldn't be rushed.

That, my friends, is garbage.  As Gorsuch ably showed, the case is actually a very simple one, almost excessively so.  Maine has discriminated against religion and has done so without any compelling reason.  A first-year law student could figure this one out.  You've got irreparable harm and a likelihood of success, but Barrett says it's just too hard to be rushed, so people's lives should be destroyed in the meantime.  She doesn't care that people facing imminent destruction of their livelihoods or their core values is the reason injunctive relief exists.

What Barrett wrote was lazy and stupid.  I thought better of her.  The best I can do is assume that writing this type of garbage is the Supreme Court justice equivalent of blinking T-O-R-T-U-R-E with her eyes, as Jeremiah Denton did when the Viet Cong forced him to do a propaganda film.

For people who stood up to the torture of their Senate confirmation hearings, Barrett and Kavanaugh have proven to be weak-minded squishes.  Like Chief Justice Roberts, they'll be conservative about things of limited interest and always side with the leftists on the big things.

Image: United States Supreme Court justices; dunce cap added by Andrea Widburg.  Public domain.

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