Conservative Review | by Daniel Horowitz | December 15, 2021
The federal government can’t control our bodies, but state governments and businesses can violate our bodily integrity and religious liberty or engage in senseless unscientific discrimination. That is the upshot of the principle emanating from the courts after a torrent of vaccine mandate litigation, thanks to Justices Kavanaugh and Barrett joining the other liberals. In reality, under no other circumstance have the courts allowed states to violate bodily autonomy, even when they have legitimate state interests. Likewise, it comes at a time when the courts are forcing anti-discrimination laws on private businesses, even when it violates the owners’ religious conscience.
After a long winning streak in the courts against Biden’s sundry federal vaccine mandates, the pro-liberty side lost a pair of cases in the federal courts that have bearings on either state mandates or private business mandates. At SCOTUS, six justices denied emergency injunctive relief to New York health care workers who are being deprived of a religious liberty exemption to the state’s vaccine mandate. Thomas, Gorsuch, and Alito would have granted the relief because of the irreparable harm incurred pending the litigation. Separately, the Fifth Circuit court of appeals declined to enjoin United Airlines from imposing a mandate on its employees.
Coupled with decisions the Supreme Court has already made this year, it’s quite evident that the mandates are here to stay in blue states, and many businesses will continue forcing them even in red states until more legislatures take action.
State powers flipped upside down
The fact that Barrett and Kavanaugh believe that a state can stop you from earning a living and impose senseless discrimination for a vaccine that does not stop spread (and might even facilitate it) – even against religious objections – is even more shocking when you examine recent court rulings on state powers, religious liberty, and asserted health care “rights.”
In June, Justices Barrett and Kavanaugh declined to join the three conservatives in ruling that it’s categorically unconstitutional for cities to bar adoption agencies from only delivering adopted children to families with a mother and father. So, they now believe states have a license to discriminate on behalf of the right causes.
Now consider the fact that they (along with Gorsuch) also refused to join Thomas and Alito in overturning a radical Fourth Circuit opinion forcing school districts to allow boys in girls’ bathrooms. Accordingly, a state is so powerful that it has the right to force you to get an experimental injection that doesn’t work against transmission, but at the same time it does not have a legitimate vital interest in keeping boys out of girls’ bathrooms. Put another way, a person has a legitimate “right” to access the opposite sex’s bathroom, but that same person doesn’t have the right to be secure in his body against government coercion. If this is what a conservative court looks like, I’d hate to see what a liberal one is.
In May 2020, before Barrett was on the court, only Thomas and Alito wanted to hear a case to overrule a Ninth Circuit ruling declaring it cruel and unusual punishment not to provide a sex offender in prison with access to castration and transgender hormone therapy. So as it stands now in the nation’s highest court, you have the right to force a state to provide you with a castration operation at taxpayer expense and be placed in a female prison, yet you don’t have the right to have your body left alone.
When considering the backward view of the scope of state powers, let’s not forget that in 2019, the Supreme Court refused to overturn a Ninth Circuit opinion preventing the city of Boise from cleaning up homeless encampments. So while a state evidently has the power to rule over your body for a shot that does not affect anyone else’s health, it has no power to clean up its streets from crime, drugs, vagrancy, and chaos ruining city neighborhoods – a basic police power of a city and state to wield.
Businesses crushed by zealous anti-discrimination laws, except when it actually matters
Now let’s turn to the so-called private business mandates. “Well, a private business can discriminate against anyone for health concerns, right?” Dream on. This is the same court that denied an appeal from Barronelle Stutzman, owner of Arlene’s Flowers, to assert the private property, free speech, and religious liberty right to decline to service a same-sex ceremony with floral arrangements. Only Alito, Thomas, and Gorsuch would have taken the appeal.
So once again, at a time when we are told private businesses can demand that patrons or employees cover their breathing orifices or accept an experimental injection, we are also told a private business must actively service an anathema to the proprietor’s religion. A mom-and-pop shop can’t merely decline to service an event that violates the tenets of every major religion, but every major corporation in an entire industry can collaborate with government to essentially implement apartheid and box out people from all employment if they don’t get an experimental shot.
Also, unlike in Arlene’s Flowers, where the owner was asserting a religious grievance, there is no scientifically proven grievance for a business owner to force employees to get a shot. Nobody disagrees that the shots do not stop transmission or lower viral load; it’s all a question of how much personal protection they provide. If anything, the latest data seems to indicate that the vaccinated get and spread Omicron more than the unvaccinated.
The notion that 60 years into anti-discrimination laws in the workplace, all businesses can bar people for not taking an action against their bodies is absurd. Can employers force employees to take certain actions to ensure they are not more likely, in their view, to get HIV? Good luck with that. Just take the recent Bostock opinion, in which Gorsuch himself wrote that private businesses are compelled by Title VII of the Civil Rights Act not to fire any worker for coming in as a cross-dresser. Even though this can be much more harmful and potentially disruptive to a work environment than someone not getting a shot, which, by definition, cannot affect those who supposedly have the protection, it is now “the law of the land” that you cannot discriminate based on that behavior. Allowing businesses to force you to get a dangerous, ineffective, and possibly transmission-inducing shot is actually even worse because it’s the equivalent of a business forcing you to cross-dress as condition of employment.
As Judge James Ho wrote in his dissent in the Fifth Circuit case involving United Airlines, “Title VII was ‘intended to protect the same rights in private employment as the Constitution protects.’ Riley v. Bendix Corp., 464 F.2d 1113, 1116 (5th Cir. 1972) (quotations omitted). And ‘[a]t the risk of belaboring the obvious, Title VII aimed to ensure that employees would not have to sacrifice their jobs to observe their religious practices.’ Adeyeye v. Heartland Sweeteners, 721 F.3d 444, 456 (7th Cir. 2013).”
Unlike transgenderism, religious conscience is directly covered by Title VII, which prohibits employers from discriminating on the basis of religion and requires employers to make reasonable accommodations for “all aspects of” an employee’s religious beliefs, absent “undue hardship on the conduct of the employer’s business.” Forcing an employee to ruin his God-given immune system for a shot that absolutely will not protect the employee is the ultimate undue hardship.
The point is that decades into a very strict and increasingly intensifying anti-discrimination regime on states and the private sector – especially in the realms of health care, bodily choice, religious liberty, and privacy – it is simply appalling to greenlight the most destructive, senseless, and dangerous form of discrimination of all time. The slate on regulation of private employment and state powers is not clean – not by a long shot.
Take HIV, for example. Contracting HIV is certainly much more the fault of the infected person in 99% of cases than it is with coronavirus, which has proven unavoidable unless you stay under a rock forever. Yet a federal judge in Puerto Rico ruled in 1990 that the zoning department, under pressure from concerned citizens, could not block a permit for construction of a hospice for AIDS patients simply because people had public health concerns.
José Antonio Fusté, former chief judge of the United States District Court for the District of Puerto Rico, ruled at the time that although there is “great cause for concern” about the AIDS epidemic, “when legitimate concern is fanned by a profound misunderstanding of the causes of AIDS, the rush to panic can easily result in illegal and unjustifiable discrimination against not only the disease’s victims but also against the laudable efforts of individuals working to contain the flames.” He concluded that the Puerto Rican authority, “by misguidedly succumbing to community pressure, has itself become a party to such discrimination.”
The point is that the people in the community had no greater risk of getting AIDS from the presence of the hospice people there than without them in the area. Likewise, the science is clear that no person, group of people, or business runs a greater risk of contracting the virus based on another person’s vaccination status. In fact, the argument is even stronger here precisely because, unlike with HIV, there is a vaccine that is supposedly so amazingly effective in stopping severe illness. Which makes the concern about “the other guy’s” vaccination status all the more shrill and illogical. Either it works or it doesn’t.
Also, in this case, we are talking about healthy people who test negative and have no apparent symptoms, or who often already had the virus and have greater immunity than the vaccinated without prior infection. Even though in the Puerto Rico case, the people themselves irrevocably and permanently were infected with the disease, the 1990 order called the actions taken by the people in the community “irrational” and unfounded.” “Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion,” wrote Judge Fusté in the 1990 opinion.
How come none of this applies today?
It’s self-evident that red states need to interpose themselves between the federal tyranny and the people. There is nothing free-market about businesses suddenly requiring ineffective shots and bizarre face diapers. It was all induced by the government in the first place. As we now know from private emails between Anthony Fauci and Facebook’s Mark Zuckerberg, they collaborated at every stage of this fascism to censor, marginalize, and discriminate against anyone who disagreed with the government.
When a private business can deny service to a gay wedding or employment to someone for having HIV or cross-dressing, then we can discuss a private businesses’ right to enforce federal tyranny with a product endorsed, funded, and exempted from liability by the government. Until then, we expect every red state to ban these mandates and subject businesses to workplace injury liability. Equal protection under the law has to mean something, even if the judges believe some people are more equal than others.