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Barrett and Kavanaugh Supply Majority to Deny Religious-Liberty Claim on Vaccine Mandate

About Andrew C. McCarthy

(Amy Coney Barrett: Jim Lo Scalzo/Reuters; Brett Kavanaugh: Jabin Botsford/Reuters)

They joined Roberts and the Court’s progressives in declining relief to Maine health-care providers, who must now be vaccinated against their beliefs or lose their jobs.

NRPLUS MEMBER ARTICLE L ate Friday, Justices Amy Coney Barrett and Brett Kavanaugh joined Chief Justice John Roberts and the Supreme Court’s three progressives in denying a preliminary injunction to a group of medical professionals who sought to be exempted from Maine’s vaccine mandate because of their religious convictions.

Justice Neil Gorsuch filed a compelling dissent in the case, John Does 1-3 v. Mills, joined by his fellow conservative justices, Clarence Thomas and Samuel Alito. The dissenters stressed that, besides being likely to win on the merits, the religious objectors were merely asking to maintain the status quo — to keep their jobs despite being unvaccinated — while the Court decided whether to grant a full review of their case. In turning them down, Barrett and Kavanaugh dodged the weighty civil-rights issues, seeing the case, instead, as an opportunity to gripe about the Court’s emergency docket.

Maine now requires certain health-care workers to be vaccinated or face the loss of their jobs and medical practices. Unlike many such mandates, Maine’s does not provide an exemption for religious objectors. The plaintiffs are medical professionals who object to the vaccine, and thus the mandate, based on their Christian faith. Specifically, because fetal tissue from terminated pregnancies was used in developing the approved vaccines, the plaintiffs see immunization as an implicit endorsement of abortion, in violation of their religious beliefs. The sincerity of those beliefs is not in dispute.

The plaintiffs made an emergency application for a preliminary injunction. In his dissent from the 6–3 majority’s refusal to grant that application, Gorsuch explained that the main issues on such an injunction request are whether the applicants are likely to succeed on the merits and, if so, whether they would suffer irreparable harm in the absence of an injunction. Gorsuch proceeded to make a strong case that the claimants would prevail on both issues.

Religious liberty is fundamental, expressly protected by the First Amendment. Under currently controlling precedent (which, as I’ve previously detailed, is disputed), a law that impinges on religion may survive if it is both neutral (i.e., not hostile to religion) and generally applicable (i.e., imposed on everyone equally). Maine’s vaccine mandate does not meet this standard because it provides for individualized exemptions. Though medical professionals are not excused from compliance based on their religious beliefs, they needn’t comply if they get a note from a health-care provider claiming that, in their cases, immunization “may be” medically inadvisable.

As Gorsuch elaborates, this medical exemption is remarkably lax. There is no requirement that the note explain why the health-care provider believes vaccination would entail medical risk; nor is there any limitation on what qualifies as a valid “medical” concern. As Gorsuch tartly observes, “It seems Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms.” (Emphasis in original.)

Even if a law fails to qualify as neutral and generally applicable, it can still survive a First Amendment challenge if it satisfies the Court’s “strict scrutiny” tier of review — the most demanding for state action to meet. Generally, strict scrutiny requires a state to show that (a) its law furthers a compelling government interest, and (b) the conditions imposed by the law are the least restrictive means of furthering that interest.

The dissenters were willing to stipulate that Maine has a compelling interest in halting the spread of COVID-19, but only for argument’s sake. Gorsuch, Thomas, and Alito point out that much has changed for the better since the Court presumed a compelling state interest nearly a year ago (in Roman Catholic Archdiocese of Brooklyn v. Cuomo), there now being not one but three approved vaccines, as well as greatly improved therapeutics, with more on the way. The dissenters are skeptical about the specter of “indefinite states of emergencies,” by which state power imperils civil liberties regardless of changed circumstances.

On the second test, Gorsuch demonstrated that Maine appears to fall woefully short of meeting its burden. Many states that impose a comparable mandate provide an exemption based on religious objections. The state has already exceeded the 90 percent level of vaccination compliance at designated health-care facilities that it originally claimed was necessary; even putting aside that the state never backed up this goal with evidence, forcing religious objectors to be vaccinated would not help if the goal already has been achieved. Maine, moreover, allows unvaccinated workers who have been exempted on claimed medical grounds to take other precautions, such as protective gear and regular testing, in lieu of being immunized. Clearly, there is no reason that these same alternative measures would be any less effective for workers whose exemptions were based on religious scruples instead.

Ergo, Gorsuch aptly concludes, “Maine’s decision to deny a religious exemption in these circumstances doesn’t just fail the least restrictive means test, it borders on the irrational.”

Moving on to other injunction factors (besides the plaintiffs’ likelihood of success on the merits), the dissenters pointed out that the denial of religious liberty amounts to irreparable harm under the Court’s precedents — quite apart from the fact that the medical workers are also losing their livelihoods. By contrast, the public interest would not be harmed by granting religion-based exemptions, any more than it is harmed by the health-related exemptions that the state provides.

Therefore, Justices Gorsuch, Thomas, and Alito saw no justification for refusing to grant a temporary injunction. After all, that would merely maintain the status quo until the Court could decide whether to grant review (known as certiorari) and fully consider the case on the merits.

As for the six-justice majority, it is to be expected that the Court’s three progressives (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) would elevate state authority over religious liberty. Nor is it surprising that Chief Justice Roberts would subordinate religious liberty to a draconian state mandate. He has a track record in COVID cases of deferring to the judgment of elected officials — no matter how arbitrary that judgment or how fundamental the rights at stake — on the rationale that they, unlike politically unaccountable judges, answer to the voters and have more institutional competence. (See, e.g., his dissent in Cuomo and his upholding of California’s restrictions on attendance at religious services in South Bay United Pentecostal Church v. Newsom.)

What is stunning, and will be troubling for conservatives, is the decision by Justices Barrett and Kavanaugh to side with the progressives and turn a blind eye to a state government’s suppression of a fundamental freedom that the Constitution is supposed to protect. And equally troubling: the thin gruel they offer as a rationale.

Barrett filed a one-paragraph opinion, joined by Kavanaugh, concurring in the Court’s refusal to grant injunctive relief. She explained that she “understands” the weighing of an injunction applicant’s likelihood of success on the merits to include “a discretionary judgment about whether the Court should grant review in the case.” Discretion in this context means the justices’ power to choose to ignore a claim that should be heard, rationalizing that to entertain it could potentially undermine the Court’s institutional protocols.

Barrett and Kavanaugh have apparently been seized by anxiety over potential abuse of the Court’s so-called emergency docket — a hobby horse among legal academics, particularly now that (a) the Court has a conservative majority, and (b) critics of progressive federal and state administrations are turning to the courts for relief from sundry mandates and decrees.

The emergency docket entails cases that arise in exigent circumstances and must be addressed expeditiously, often by injunction applications, on schedules far tighter than what might generously be described as the Court’s customary pace of a hobbled snail. Barrett frets that when the Court takes the “extraordinary” step of entertaining such a case, the justices are put to the unwelcome burden of providing a “merits preview” — a forecast of how the case is likely to be decided if fully reviewed. This is said to be less than optimal because the Court must proceed “on a short fuse without benefit of full briefing and oral argument,” when, if they’d had more time to think it through, the justices might not grant review of the case at all.

Cue the violins.

Justice Barrett’s temporizing is overwrought. The Court should only grant preliminary relief — which, again, simply freezes a matter in place, but doesn’t decide it with finality — if (a) the moving party plainly appears likely to win on the merits, (b) the failure to act would truly cause irreparable harm (e.g., there is no irreparable harm if money damages would eventually make the harmed party whole), and (c) there is not some consequential public interest that an injunction would undermine. That is a very small universe of cases, especially for a tribunal that, on a yearly basis, is not exactly overtaxed. (Last term, the justices issued opinions in just 67 cases out of the approximately 8,000 in which review was sought, continuing the Roberts Court trend of historically low output; in the early 1980s, by comparison, the Court typically decided over 150 cases per term.)

Furthermore, who cares if the Court has to give a merits preview? It is a fact of life that emergency circumstances occasionally arise, forcing us mere mortals to do the best we can, ruefully realizing we could do better if only there were time for calm deliberation. Why should the Supreme Court, the last bastion for safeguarding our fundamental rights, be spared that burden? If it turns out that, upon further consideration of a fully developed record, the justices would not have taken the emergency case in the first place, the “merits preview” does no harm. To the extent it has precedential value, it is understood to be a preliminary decision based on an incomplete factual record.

Most significantly, even if their reservations had persuasive force, Barrett and Kavanaugh are prioritizing the Court’s airy model for conducting appellate litigation over its principal duty to defend the fundamental rights of Americans against government overreach.

At issue here is a flesh-and-blood dispute, not an abstraction. Medical professionals are being stripped of their religious freedom and their jobs because of a state mandate that capriciously discriminates against them. Yet rather than take action, Barrett and Kavanaugh basically say: Let’s just wait a year or three, so we can have an exacting record and full briefing. And mind you, granting a preliminary injunction would not deprive the justices of their coveted full briefing; it would just mean that the unvaccinated medical professionals got to keep their jobs until the Court finally decided to either deny full review (in which case the injunction would lapse) or grant review and then rule on the merits.

Presumably Justices Barrett and Kavanaugh appreciate that when they exercise their “discretionary judgment” to duck a case, it doesn’t mean the case goes unresolved. There is still a winner and a loser. Here, overbearing government prevailed, and the loser was the Constitution.

Nearly Half Of All Dog Parents Plan To Wear Matching Halloween Costumes With Their Dog, Survey Finds

Have you decided what you and your dog are going to be for Halloween?

While dressing up in costumes is not for everyone or every dog, a recent survey by Rover found that nearly half (47%) of pet parents plan on wearing matching Halloween costumes with their dog.

The survey asked 1,000 pet parents how they were including their dog in their Halloween festivities.

Photo: Unsplash/Kerwin Elias

And it turns out that dogs will be involved in most of the fun activities.

Some pets find Halloween to be stressful with the constant ringing of the doorbell, strangers at the door in costumes, and dangerous candy within reach. If this is your pet, please allow them to stay indoors and in a safe and quiet area.

On the other hand, if your dog doesn’t mind costumes and doesn’t stress over strangers, consider dressing up in matching Halloween costumes.

Adobe Stock: otsphoto

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Halloween Costumes

According to the survey results, 65% of dog parents plan to dress up their dog and are planning on spending up to $40 for their dog’s costume.

A majority of pet parents (47%) are taking it a step further by wearing matching Halloween costumes.

Some dogs are completely fine with a full costume, while others would do best with just a bandana. Please consider your dog’s comfort when choosing a costume or involving them in activities.

Photo: Unsplash/Justin Jason

The #1 way pet parents are easing their dog’s anxiety about wearing a costume is getting them used to it by wearing it early to get comfortable.

There are endless options of “couple” costumes that you and your pet can go as. But if you need inspiration, take a look at these adorable dog costumes and the list of ideas below.

Creative Human & Dog Halloween Costumes

  • From the Wizard of Oz: Dorothy dog costume & wicked witch, tin man, scarecrow, or lion for human
  • Iron Man dog costume & Black Widow for human
  • Bumblebee dog costume & sunflower for human
  • Spider dog costume & web for human
  • Dinosaur dog costume & Jurassic Park Ranger for human

Trick or Treat?

Adobe Stock: otsphoto

58% of dog parents plan on having their dog help hand out candy or greet trick-or-treaters at the door. Make sure you keep a close eye on Fido to make sure he doesn’t eat any dropped candy or sneak out of the house.

For those parents heading out to go trick-or-treating, over half (55%) are bringing their dogs.


The vast majority (69%) of dog parents can’t resist showing off their adorable pup and plan on posting a photo or video on social media of their dog in their Halloween costume.

And let’s be honest, who doesn’t enjoy seeing their feeds full of adorable dogs in costumes?!

Photo: Rover

Doting parents want to make sure everyone sees their fang-tastic pup so 54% are planning on sharing photos with coworkers or including their dogs in a Zoom call.

No matter how you choose to spend the holiday, we wish everyone a safe and happy Howl-oween!

Check out The Dog People, a blog by Rover, for more pet tips, tricks, and information.

Tell the FDA to Enact Stronger Pet Food Safety Regulations | Take Action @ The Animal Rescue Site

Let's move forward with stronger pet food safety standards. It's time!

94,061 signatures toward our 100,000 Goal

Sponsor: The Animal Rescue Site

Let’s move forward with stronger pet food safety standards. It’s time!

Pet food has long been a source of worry for pet owners and health officials. Reports of salmonella contamination are frequent, and threaten not only animals eating the food but also the owners handling it. Nutritional deficiencies and toxins have been found in pet foods as well — including melamine and salmonella which has led to multiple pet deaths.

The Food and Drug Administration (FDA) regulates the manufacture of cat food, dog food, and dog treats or snacks you have in your pantry1. One of the ways it does that is through the the Federal Food, Drug, and Cosmetic Act requires that all animal foods, like human foods, be safe to eat, produced under sanitary conditions, contain no harmful substances, and be truthfully labeled2.

However, we regularly see violations of this law in tragic headlines reporting pet illness and death.

The FDA’s new proposal includes safety requirements similar to those in place for manufacturers of human food, ensuring that manufacturers are proactive in their efforts to keep pet food safe3. The current system is reactive; the government does not respond to pet food safety issues until after they are reported. In the past, it’s taken weeks of reports from consumers before contaminations were discovered and recalls announced, and thousands of dogs and cats are believed to have died.

The FDA is proposing that pet food companies follow rules very similar to those that manufacturers of human food must follow. That means that companies that take part in manufacturing any pet food component would be required to keep a record of, monitor for effectiveness, and report their manufacturing practices4.

Important pieces of this proposal include sanitation, hygienic practices and training, processes and controls, storage and distribution of pet food, and equipment design, use and maintenance.

Manufacturers will be required to develop procedures to prevent foodborne illness, and have plans in place to correct any problems, under the new law5.

This long-awaited move by the FDA is likely to be opposed, and possibly diluted, by large pet food manufacturers and importers. Make your voice heard now: It’s past time for the FDA to help ensure that the food we feed our pets is safe!

More on this issue:

  1. U.S. Food & Drug Administration (19 February 2021), “Pet Food.”
  2. U.S. Food & Drug Administration (12 May 2020), “FDA’s Regulation of Pet Food.”
  3. Federal Register (29 October 2013), “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Food for Animals.”
  4. USA Today (25 October 2013), “FDA proposes rules to make animal food safer.”
  5. Saundra Young, CNN (25 October 2013), “For the first time, FDA addresses pet food safety.”

To Top

The Petition:

To the FDA Commissioner:

As you know, the discovery and recall of contaminated pet food happens on far too frequent a basis. Recalls of pet food are announced regularly.

The melamine scandal of 2007, which caused the tragic loss of thousands of beloved pets and even made it into the human food supply via chicken feed, should have served as a warning of how sweeping pet food contamination can be.

It seems the lessons from that tragedy have not been learned, as pets continue to die every year from pet food contamination.

Still today, dozens of pets die from food contamination every year and far more become seriously ill.

I am incredibly supportive of your proposal to enact stronger pet food manufacturing safety regulations similar to those in place for food for humans. No doubt you will receive many communications from organizations determined to dilute and weaken your proposal. I choose to support strong regulation to protect health and lives. Please continue to consider the health of our animals and our population, and enact these regulations faithfully and completely.

Sincerely,To Top


The far-left Democrats should move there…

Ingredient Splitting – Deceptive Dog Food Labeling Trick

Ingredient splitting is one of the pet food industry’s most misleading marketing practices.

Of course…

Dog food companies deny any wrongdoing. They claim they’re simply following Federal labeling guidelines.

Yet perceptive shoppers cry foul. 

They insist ingredient splitting is a deliberate attempt by pet food companies to mislead consumers… and a deceptive trick designed to make an ingredients list look more attractive to potential buyers.


What Is Ingredient Splitting?

Ingredient splitting is the creative practice of dividing a more abundant (inferior) ingredient into smaller portions of similar items.

It’s a sneaky way to artificially boost a more desirable item (like meat) to a higher spot on the ingredients list… while lowering the ranking of a less desirable item (like rice or corn).

And it’s all completely legal.

Here’s How It Works

Let’s say you have a dog food in which corn and rice are the main ingredients in the recipe.


Because grains are less appealing to a dog food shopper than meat, designers are compelled to lower the positions of non-meat items on the ingredients list.

Keep in mind…

Pet food manufacturers are required by law to arrange each item on every ingredients list in order of its precooking weight.

Check out this example…

Ingredient Splitting Comparison Table

Notice that corn and rice rank #1 and #2… before ingredient splitting.


What happens if we “split” the first two items on the list into smaller portions of similar ingredients?

With that goal in mind…

Let’s divide corn into smaller amounts of corn meal and corn flour… and let’s split the rice into smaller portions of brown and white rice.

And like magic

Even though the amount of chicken meal remains unchanged, it’s now been raised to the first position on the ingredients list.

Avoid ‘The First Ingredient’ Trick

Can you see how a dog food company could use ingredient splitting to mislead shoppers?

Here’s a real life example.

Have you ever noticed a dog food package boasting, “meat is the first ingredient”?

Like this…

Chicken is the number one ingredient
What does “#1 ingredient” really mean?

It’s easy for a pet food shopper to misunderstand this claim.

For example…

Do the words, “Chicken is the #1 ingredient” mean chicken is the most plentiful ingredient in the recipe?

Or do they mean that the food’s designer was able to successfully use ingredient splitting to manipulate the order of the list?


Do they mean chicken is the first ingredient because the recipe actually contains a generous amount of chicken meal?

The Bottom Line

Ingredient splitting is neither goodor bad.

Unless a company chooses to use ingredient splitting to mislead consumers.

Bottom line…

Don’t place excessive value on claims that meat is the first ingredient. Keep in mind, ingredients can be manipulated to change their order.

Which is why…

The first 5 ingredients in any recipe tend to provide a much more accurate picture of a pet food’s actual content.

What to Look for?

When searching for ingredient splitting, follow these suggestions:

  1. Ingredients matter. Begin every dog food evaluation with the label. After all, how could any food be magically better than the ingredients that were used to make it?
  2. Don’t overvalue the first ingredient. Ignore scammy claims. Instead, consider the healthiest and most plentiful components at the top of the recipe.
  3. Study the first 5 ingredients to determine the most abundant items in any dog food formula
  4. Look for evidence of ingredient splitting. Be skeptical when you find multiple versions of similar ingredients clustered together near the top of the list. For example, if you find white rice, brown rice and rice flour included in the first 5 items of a recipe, you can be fairly certain the main ingredient in the food is not meat.

Our Best Advice

If you’d like to save time, consider visiting one of our “Best Dog Food” pages below. We’ve already assessed over 5700 recipes to uncover these top-rated dog and puppy foods.

Petition · Fauci: stop funding animal abuse!!

Tell your legislators to demand Fauci stop funding of abusive and cruel dog experiments!

Fauci’s NIH division funded part of a grant to a lab to drug 44 beagles and lock their heads in mesh cages filled with hungry sand flies so that the insects could eat them alive. Some of the dogs had their vocal cords removed so scientists could work without hearing their incessant barking.

Leading the effort is Rep. Nancy Mace (R-S.C.), writing a letter to the National Institutes of Health (NIH) saying these are “cruel” and a “reprehensible misuse of taxpayer funds.” Mace’s letter was signed by Reps. Cindy Axne (D-Iowa), Cliff Bentz (R-Ore.), Steve Cohen (D-Tenn.), Rick Crawford (R-Ark.), Brian Fitzpatrick (R-Pa.), Scott Franklin (R-Fla.), Andrew Garbarino (R-N.Y.), Carlos Gimenez (R-Fla.), Jimmy Gomez (D-Calif.), Josh Gottheimer (D-N.J.), Fred Keller (R-Pa.), Ted Lieu (D-Calif.), Lisa McClain (R-Mich.), Nicole Malliotakis (R-N.Y.), Brian Mast (R-Fla.), Scott Perry (R-Pa.), Bill Posey (R-Fla.), Mike Quigley (D-Ill.), Lucille Roybal-Allard (D-Calif.), Maria E. Salazar (R-Fla.), Terri Sewell (D-Ala.), Daniel Webster (R-Fla.) and Del. Eleanor Holmes Norton (D-D.C.)

If you don’t see your congresspersons listed here, contact them and demand they join with these to hold reprehensible Fauci accountable!

Every Year Ghost Manor in New Orleans Does A Spooktacular Halloween Display 👻🎃👻