With all the U.S. Supreme Court’s other controversial decisions in its 2021–2022 term, it’s understandable that its decision not to intervene in the politics of vaccine mandates passed largely unnoticed. Over the dissent of Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas, the Court declined to review a challenge to a New York regulation mandating that health-care workers be vaccinated against COVID-19. The petitioners had objected to the regulation on religious-liberty grounds. Justices Alito, Gorsuch, and Thomas had also dissented from another 2021 decision not to issue an injunction against a similar regulation in Maine.
Even though his view did not prevail, notice should be paid to Justice Gorsuch’s argument that such regulations violate the First Amendment. In both the New York case, Dr. A. v. Hochul, and the Maine case, Does v. Mills, Gorsuch cites the 1981 decision Thomas v. Review Board of the Indiana Employment Security Division, which has become the Court’s go-to precedent for cases in which people object either to having to contribute to an action they believe to be wrong (e.g. baking a cake for a same-sex wedding) or to having to make use of an action they believe to have been wrong (e.g. taking vaccines that were tested or developed using a cell line derived from an abortion). The first kind of case involves what ethicists call “cooperation”; the second involves “appropriation.” The problem is that the decision in Thomas v. Review Board of the Indiana Employment Security Division is fundamentally confused. And that is also a problem for the important cause of religious liberty.
Eddie Thomas was a Jehovah’s Witness. He worked at a roll foundry making sheet steel, which is used in all sorts of things. The roll foundry closed, however, and Thomas’s employer gave him a new job making tank turrets. For religious reasons, Thomas sought to be reassigned to work that did not directly serve the military, only to learn that all his employer’s remaining operations were in arms production. So he asked to be laid off. After his employer denied his request, he quit and applied for unemployment benefits in Indiana, his state of residence. His application was denied, despite the recognition that he had acted on his religious beliefs as a Jehovah’s Witness. Eventually, the case came before the Supreme Court.
In an 8-1 decision, the Court observed that Thomas “drew a line” between working in the roll foundry, which he found “sufficiently insulated from producing weapons of war,” and working on tank turrets, which he believed made him complicit in war-making. The Court went on to state that “it is not for us to say that the line he drew was an unreasonable one.” For “religious beliefs need not be acceptable, logical, consistent, or comprehensible in order to merit First Amendment protection.” Instead, the Court decided that the case turned on the question of whether Thomas “terminated his work because of an honest conviction that such work was forbidden by his religion.”