Prejudice, Hostility and Scrutiny of Discrimination against the Unvaccinated
Historically, the Supreme Court has looked at claims of discrimination under the 14th Amendment Equal Protection clause with two (or three) different standards of review. Cases that are not thought to violate “Fundamental rights” or infringe on the rights of a “Protected Class,” are judged on a “Rational basis” test.
This is a difficult standard for a Plaintiff to overcome, as he bears the burden of proof of showing that the state had no “rational basis” for the discrimination. In more egregious situations, especially involving members of so-called “protected classes,” the court may apply a “Strict Scrutiny” test.
This, in effect, shifts the burden of proof to the state to show that their regulation is “narrowly tailored” to accomplish a “compelling state interest.” This is a much more favorable test for the Plaintiff and can mean the differences between winning and losing an Equal Protection Claim.
Because of historic prejudice and hostility dating back to Slavery times, African-Americans were the first group that were considered “protected.” Over the years, Congress has extended “protected class” status to groups who share similar characteristics including race, religious belief, national origin, age, sex, pregnancy, citizenship, family status, disability and veterans status.
While all forms of discrimination against these groups are unlawful, the Supreme Court has been less generous in granting all these groups “protected status” when it comes to Equal Protection claims. Perhaps hoping to discourage a flood of litigation, the court has mainly extended “strict scrutiny” to cases involving alleged discrimination based on race, national origin and gender.
In the gray area that falls in between “rational basis” and “strict scrutiny” there’s even something known as “intermediate scrutiny” called into play when there is a “Quasi-suspect classification.” This classification has been used by some federal courts to deal with claims of discrimination against gay or transgender people.
In determining whether a group may be “quasi-protected,” the courts generally look to evidence as to whether the group in question is stigmatized by a long history of purposeful and invidious discrimination, although it is unclear how long-running that history must be. It is important to note, that the element of “stigma” relates not just to the state’s official actions, but also to the way members of the class are treated by other members of society. Those granted this “quasi” status need only prove that the state’s action is not “substantially related” to an important state interest– a nice step up from rational basis.
While the high court itself doesn’t always necessarily follow its own rules, and often mixes up their own doctrine, this is the general framework that potential litigants must start with. So where in this puzzle might discrimination against the Unvaccinated fit in?
As a matter of fact, the black population New York State is the least likely group to be vaccinated and thus are suffering a “disparate impact” from rules that discriminate against the Unvaccinated, such as regulations requiring proof of vaccination to enter certain businesses or increased requirements for masks or testing. Unvaccinated black plaintiffs would perhaps have the best chance of winning such a case because they are in a “protected class.”
The race of the Unvaccinated, however, should ideally play no part in the consideration of whether Equal Protection applies. As Justice O’Connor noted in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), “the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.”
The fact that the unvaccinated people being discriminated against in the current regulations are not of any one race, however, does not mean that they are not being discriminated against because of hostility and prejudice. In recent months, a high level of public prejudice has been created against the Unvaccinated, similar to what has existed in some historic cases involving racial discrimination.
The courts can take judicial notice of the fact that recent statements of public officials from the President of the United States and the Governor of New York on down have tended to cast negative perceptions and scorn on the Unvaccinated, falsely characterizing them as unclean carriers of disease being to blame for the spreading of the disease and thus creating great stress on the medical system.
As recently as Dec. 21, 2021 President Biden repeated his oft-made claim that it is every American citizen’s “patriotic duty” to get vaccinated. Presumably, those who don’t choose to take an experimental treatment for whatever reason, are unpatriotic and un-American in his eyes. This is bullying from the highest level and of the worst sort.
On Sept. 26, 2021, New York Governor Kathy Hochul gave a “sermon” from the pulpit of New York City’s Christian Cultural Center in Brooklyn, NY and stated that the vaccine was a gift from God. ”I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are,” she said. So in one sentence she alleged that the Unvaccinated were “not smart” and “not listening to God.” Her speech was recorded and is available on YouTube.
As almost everybody, except dunder-headed liberals on the Supreme Court now understands, arguments about the Unvaccinated being a cause for the spreading of the disease have no basis in fact and are simply propaganda. The goal obviously is to invidiously create public hostility and prejudice against the Unvaccinated in the hopes of coercing people into getting vaccinated so they can remove the supposed stigma.
This character assassination on the Unvaccinated continues despite the fact that there are many legitimate medical and religious reasons for an individual to refrain from taking the vaccination –Not to mention the right to exercise the basic American freedoms of bodily autonomy and Informed Consent.
The noose around the Civil Rights of the unvaccinated continues to tighten. We are now seeing that doctors and other members of the medical profession have begun to discriminate against the Unvaccinated by denying them needed medical treatment based upon their vaccination status. This started with removing people from organ transplant lists, and has grown to deny “elective” surgeries, or even routine office visits and care.
That this propaganda war on the Unvaccinated is having an effect is shown by a recent Rasmussen poll that showed that 59% of Democratic voters would favor a government policy requiring that citizens remain confined to their homes at all times, except for emergencies, if they refuse to get a COVID-19 vaccine. A slightly smaller cohort of Dems (45%) would favor governments requiring citizens to temporarily live in designated facilities or locations if they refuse the jab.
While on a national basis, these ideas do not have majority support, in New York, and other Deep Blue states, the Unvaccinated have cause for concern. In fact, a NYS bill authorizing the Governor to put the Unvaccinated into internment camps without any due process was recently proposed in Albany, although for now at least withdrawn
This pernicious attempt to scapegoat the Unvaccinated is very worrisome when we realize that it is eerily similar to the strategy that was used in Nazi Germany against the Jews. Many surviving victims of the Holocaust have remarked on the parallels they see between Nazi Germany and modern America.
As Justice Brennan noted in United States Department of Agriculture v. Moreno 413 U.S. 528 (1073), “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare (congressional) desire to harm a politically unpopular group cannot constitute a legitimate government interest.”
That case struck down a law attempting to prevent so-called “hippies” living in communal homes from getting food stamps. As a former hippie myself, I can testify that the stigma I experience now as an Unvaccinated person, even though I am a Covid-19 survivor with Natural Immunity, is much greater than anything I felt when I was young and my hair was long.
At its heart, the whole attempt to brand the Unvaccinated as “unclean,” “disease spreaders”, “not smart,” “not listening to God” and other slurs is an attempt to politicize a public health issue. When Gov. Hochul says, “You know who they are,” to a no-doubt very liberal congregation, can there be any doubt that she is referring to people that hold conservative political values? Conservatives as a group are much more likely to be suspicious of and resist government mandates of any kind.
It can be argued that the whole effort to sensationalize the Covid-19 pandemic and create unnecessary fear by over-broad regulations is part of a national Democrat Party political strategy. The fact that many states loosened standards for mail-in ballots because of Covid-19 concerns may have changed the outcome of the 2020 Presidential election. Having succeeded there, they hope to keep the fear pandemic going and repeat that success in the upcoming 2022 Congressional elections.
This invidious effort to demonize and exclude the Unvaccinated from the public square is meant to stir up the passions of the mob and perhaps deflect blame for the failure of public health measures to get the pandemic under control. To many of her supporters, Gov. Hochul’s words confirm their pre-existing prejudices against people who revere the Constitution and the liberties enshrined there-in. Shaming and banning them appeals to the vindictive streak in such partisans. It has little to do with public health or a reasoned analysis of relative risk.
Considering the prejudicial comments of public officials, the over-broad restrictions on the freedom of unvaccinated people and the growing level of infringement of fundamental constitutionally protected liberties embodied in these regulations, the court should examine them with a heightened level of scrutiny. In Equal Protection jurisprudence terms, in addition to infringing “Fundamental Rights” of the Unvaccinated, the State has gone so far out of it’s way to demonize them, that they have created, at the very least, a new “Quasi-Suspect Classification,” that requires stricter scrutiny.
The fact that New York State government has been dominated for many years by a very liberal Democrat Party, that holds all state-wide offices and solid majority control of both houses of the legislature, suggests that those of a more conservative philosophy may have trouble having their rights protected or even considered. As Justice Stone wrote in his famous footnote #4 in the case of United States v. Carolene Prods. Co., 304 U.S. 144 (1938), “...prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
It would not be too great an exaggeration to say that in New York, at the state level at least, Republicans and especially conservatives are in effect “politically powerless.” The implementation of so many authoritarian executive orders in New York in the past two years of the War on Covid-19, such as business lockdowns and harsh regulations, have discouraged so many, that New York has just seen the greatest one-year loss of population in its history (with over 350,000 people moving out of state between July of 2020 and July of 2021).
No doubt even more have left in the past 6 months because of forced vaccination in certain professions and loss of employment. As freedom-loving citizens flee the state, the permanent minority status of the few remaining conservatives is made worse. A few years ago, former Governor Andrew Cuomo said that there was no place in New York State for conservatives. In these most recent state regulations, the government may be trying to put the policy into action and drive us from the state!
As the Supreme Court said in West Virginia Bd. of Ed.v. Barnette, 319 U. S. 624, 638 (1943), the idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
The Unvaccinated, who represent no greater risk of catching or spreading the virus, should not have their fundamental rights to participate in society be impaired because of prejudice and hostility, or for political gain of the majority party.
This article was adapted from my legal memorandum in support of a motion to enjoin the current NYS Health Department regulations and practices. Links to that memo and other legal papers filed in the case of Strong v. Zucker currently in the Federal District Court in Western New York, can be found at my website: TwoOldMeninChairs.com
Corrin Strong practiced law in NYS from 1981-85. He has been officially retired since 1986 and is representing himself in this matter “pro se.” Some of the arguments presented here were developed by other attorneys and borrowed from their filings available on the PACER federal court reporting system.