You know who wouldn’t think much of Montana’s anti-vaxx laws? Antonin Scalia.

October 28, 2021 5:50 am

U.S. Supreme Court Associate Justice Antonin Scalia pauses as he addresses a Northern Virginia Technology Council breakfast December 13, 2006 in McLean, Virginia. Scalia spoke to executives from technology companies in the region about constitutional interpretation. (Photo by Alex Wong/Getty Images)

It’s always dangerous getting the dead to speak to current issues.

But, with Halloween and all, ‘tis the season.

I mean: It’s dangerous to hazard a guess at what, say, Abraham Lincoln may think of critical race theory. And it’s just as dangerous to wonder what Jesus would do in every contemporary life situation because so much despicable has been done in the name of God that it’s probably best to set those questions aside until we’ve mastered all the nuances of what Jesus did in Gospel before setting about what Christ may do with something contemporary, like Facebook.

Still, it’s impossible not to hear the voices of conservatives echoing clearly today, seemingly speaking with contemporary freshness.

And you know who wouldn’t think much of Montana Gov. Greg Gianforte’s take on vaccines, mandates and our Legislature’s knee-capping of public officials who are just trying to keep people alive?

The late U.S. Supreme Court Justice Antonin Scalia, who is so often revered and lionized by conservatives.

Ironic that those same conservatives may not appreciate that Scalia may have been the first to topple Montana’s House Bill 702 ,which has garnered national attention because it doesn’t just outlaw (literally) COVID-19 vaccine mandates, it outlaws all vaccine mandates for nearly every person in the state. Meanwhile, while the rest of the nation is currently seeing a decline in COVID cases, Montana’s slow death march continues unimpeded by those who have the most power to stop this pandemic.

But one of Scalia’s most famous decisions, Employment Division vs. Smith (1990), discusses the intersection of personal belief and the government’s right to enact laws that may run contrary to those personal beliefs in the name of public good.

As Montana politicians try to rally support for thwarting science in the name of conscience or religious liberty, Scalia speaks clearly and unequivocally in the decision. He gives many other examples of the government requiring certain things of citizens, even though it may offend or run contrary to their beliefs. For example, paying taxes or paying into programs like Social Security, may run contrary to personal or religious beliefs, but that doesn’t relieve a person from the responsibility. Nor does registering for the draft, even if you’re an avowed pacifist.

Scalia reasoned – and the Supreme Court still holds – that, in the cases of taxation for instance, “If prohibiting the exercise of religion is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”

In other words, if vaccines and public health mandates are not proposed by the government as a means of burdening or antagonizing religious beliefs, but have the unfortunate and unintended result of conflicting with a personally held belief, then the government, according to this former conservative pillar of the Supreme Court, hasn’t really trampled on your rights.

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices,” Scalia said in his decision, delivered for the majority of the court. “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Meanwhile, the Supreme Court and other lower courts have continuously upheld the government’s right to require vaccines, especially in cases of school children. It’s also important to note that very few – which is to say, hardly any – religions ban or proscribe vaccines.

It’s odd to have to say something that should be this self-evident, but the government seems to have had — at one time in the not-so-distant past — a belief that preventing pandemics and death-causing disease is public good worth enforcing.

In this landmark decision, Scalia leans on previous courts and other Supreme Court justices to prove that his interpretation wasn’t just a musing or a trend, or even a reversal of policy. He quotes Justice Felix Frankfurter in a 1940 decision:

“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from discharge of political responsibilities.”

Those are awfully nice sounding words, but the truth of them may be lost in the purple prose.

The government can impose vaccine mandates for the good of everyone, and “discharge of political responsibilities” can be translated simply as: Get the damn shot.

If you don’t believe me, take it up with Antonin Scalia.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.