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Cite as: 595 U. S. ____ (2021) 1 

BARRETT, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 21A90 

JOHN DOES 1–3, ET AL. v. JANET T. MILLS, 

GOVERNOR OF MAINE, ET AL. 

ON APPLICATION FOR INJUNCTIVE RELIEF 

[October 29, 2021] 

The application for injunctive relief presented to JUSTICE 

BREYER and by him referred to the Court is denied. 

JUSTICE BARRETT, with whom JUSTICE KAVANAUGH 

joins, concurring in the denial of application for injunctive 

relief. 

When this Court is asked to grant extraordinary relief, it 

considers, among other things, whether the applicant “‘is 

likely to succeed on the merits.’” Nken v. Holder, 556 U. S. 

418, 434 (2009). I understand this factor to encompass not

only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant

review in the case. See, e.g., Hollingsworth v. Perry, 558 

U. S. 183, 190 (2010) (per curiam); cf. Supreme Court Rule 

10. Were the standard otherwise, applicants could use the

emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do

so on a short fuse without benefit of full briefing and oral 

argument. In my view, this discretionary consideration 

counsels against a grant of extraordinary relief in this case,

which is the first to address the questions presented. 
 

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Cite as: 595 U. S. ____ (2021) 1 

GORSUCH, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 21A90 

JOHN DOES 1–3, ET AL. v. JANET T. MILLS, 

GOVERNOR OF MAINE, ET AL. 

ON APPLICATION FOR INJUNCTIVE RELIEF 

[October 29, 2021]

 JUSTICE GORSUCH, with whom JUSTICE THOMAS and 

JUSTICE ALITO join, dissenting from the denial of application for injunctive relief. 

Maine has adopted a new regulation requiring certain

healthcare workers to receive COVID–19 vaccines if they 

wish to keep their jobs. Unlike comparable rules in most 

other States, Maine’s rule contains no exemption for those

whose sincerely held religious beliefs preclude them from 

accepting the vaccination. The applicants before us are a 

physician who operates a medical practice and eight other 

healthcare workers. No one questions that these individuals have served patients on the front line of the COVID–19 

pandemic with bravery and grace for 18 months now. App.

to Application for Injunctive Relief, Exh. 6, ¶8 (Complaint). 

Yet, with Maine’s new rule coming into effect, one of the

applicants has already lost her job for refusing to betray her

faith; another risks the imminent loss of his medical practice. The applicants ask us to enjoin further enforcement of 

Maine’s new rule as to them, at least until we can decide 

whether to accept their petition for certiorari. I would grant 

that relief. 

Start with the first question confronting any injunction

or stay request—whether the applicants are likely to succeed on the merits. The First Amendment protects the exercise of sincerely held religious beliefs. Masterpiece 

Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. 
 

 

2 DOES 1–3 v. MILLS 

GORSUCH, J., dissenting 

___, ___–___ (2018) (slip op., at 12–14). Laws that single

out sincerely held religious beliefs or conduct based on them 

for sanction are “doubtless . . . unconstitutional.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 

U. S. 872, 877 (1990). But what about other laws? Under 

this Court’s current jurisprudence, a law may survive First

Amendment scrutiny if it is generally applicable and neutral toward religion. If the law fails either of those tests, it 

may yet survive but the State must satisfy strict scrutiny.

To do that, the State must prove its law serves a compelling 

interest and employs the least restrictive means available 

for doing so. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 531–532 (1993); Smith, 494 U. S., at 

879. 

Maine does not dispute that its rule burdens the exercise 

of sincerely held religious beliefs. The applicants explain 

that receiving the COVID–19 vaccines violates their faith 

because of what they view as an impermissible connection

between the vaccines and the cell lines of aborted fetuses. 

More specifically, they allege that the Johnson & Johnson

vaccine required the use of abortion-related materials in its

production, and that Moderna and Pfizer relied on aborted 

fetal cell lines to develop their vaccines. Complaint ¶¶61–

68. This much, the applicants say, violates foundational 

principles of their religious faith. For purposes of these proceedings, Maine has contested none of this.

That takes us to the question whether Maine’s rule qualifies as neutral and generally applicable. Under this 

Court’s precedents, a law fails to qualify as generally applicable, and thus triggers strict scrutiny, if it creates a mechanism for “individualized exemptions.” Lukumi, 508 U. S., 

at 537; see also Fulton v. Philadelphia, 593 U. S. ___, ___– 

___ (2021) (slip op., at 5–6).

That description applies to Maine’s regulation. The 

State’s vaccine mandate is not absolute; individualized ex-
Cite as: 595 U. S. ____ (2021) 3 

GORSUCH, J., dissenting 

emptions are available, but only if they invoke certain preferred (nonreligious) justifications. Under Maine law, employees can avoid the vaccine mandate if they produce a 

“written statement” from a doctor or other care provider indicating that immunization “may be” medically inadvisable. Me. Rev. Stat. Ann., Tit. 22, §802(4–B) (2021). Nothing 

in Maine’s law requires this note to contain an explanation

why vaccination may be medically inadvisable, nor does the

law limit what may qualify as a valid “medical” reason to

avoid inoculation. So while COVID–19 vaccines have Food 

and Drug Administration labels describing certain contraindications for their use, individuals in Maine may refuse a 

vaccine for other reasons too. From all this, 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. That kind of double standard is enough to 

trigger at least a more searching (strict scrutiny) review.

Strict scrutiny applies to Maine’s vaccine mandate for another related reason. This Court has explained that a law 

is not neutral and generally applicable if it treats “any comparable secular activity more favorably than religious exercise.” Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 1); see also Fulton, 593 U. S., at ___ (slip 

op., at 6); Lukumi, 508 U. S., at 542–546. And again, this

description applies to Maine’s rule. The State allows those 

invoking medical reasons to avoid the vaccine mandate on 

the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers. 

But the State refuses to allow those invoking religious reasons to do the very same thing. 

Unpack this point further. Maine has offered four justifications for its vaccination mandate: 

(1) Protecting individual patients from contracting

COVID–19; 
 

4 DOES 1–3 v. MILLS 

GORSUCH, J., dissenting 

(2) Protecting individual healthcare workers from 

contracting COVID–19; 

(3) Protecting the State’s healthcare infrastructure,

including the work force, by preventing COVID–caused

absences that could cripple a facility’s ability to provide 

care; and 

(4) Reducing the likelihood of outbreaks within 

healthcare facilities caused by an infected healthcare

worker bringing the virus to work. App. to Brief for 

Respondents, Decl. of Nirav Shah, p. 43, ¶56 (Shah

Decl.). 

Now consider the first, second, and fourth of these. No 

one questions that protecting patients and healthcare

workers from contracting COVID–19 is a laudable objective. But Maine does not suggest a worker who is unvaccinated for medical reasons is less likely to spread or contract the virus than someone who is unvaccinated for 

religious reasons. Nor may any government blithely assume those claiming a medical exemption will be more willing to wear protective gear, submit to testing, or take other

precautions than someone seeking a religious exemption. A 

State may not assume “the best” of individuals engaged in

their secular lives while assuming “the worst” about the 

habits of religious persons. Roberts v. Neace, 958 F. 3d 409, 

414 (CA6 2020). In fact, the applicants before us have already demonstrated a serious commitment to public health

during this pandemic and expressly stated that they, no

less than those seeking a medical exemption, will abide by

rules concerning protective gear, testing, or the like. Complaint ¶76.

That leaves Maine’s third asserted interest: protecting 

the State’s healthcare infrastructure. According to Maine,

“[a]n outbreak among healthcare workers requiring them

to quarantine, or to be absent . . . as a result of illness 

caused by COVID–19, could cripple the facility’s ability to 
Cite as: 595 U. S. ____ (2021) 5 

GORSUCH, J., dissenting 

provide care.” Shah Decl. 44, ¶56. But as we have already 

seen, Maine does not dispute that unvaccinated religious

objectors and unvaccinated medical objectors are equally at

risk for contracting COVID–19 or spreading it to their colleagues. Nor is it any answer to say that, if the State required vaccination for medical objectors, they might suffer

side effects resulting in fewer medical staff available to 

treat patients. If the State refuses religious exemptions,

religious workers will be fired for refusing to violate their 

faith, which will also mean fewer healthcare workers available to care for patients. Slice it how you will, medical exemptions and religious exemptions are on comparable footing when it comes to the State’s asserted interests.

The Court of Appeals found Maine’s rule neutral and generally applicable due to an error this Court has long warned

against—restating the State’s interests on its behalf, and 

doing so at an artificially high level of generality. According

to the court below, Maine’s regulation sought to “protec[t]

the health and safety of all Mainers, patients, and

healthcare workers alike.” Does 1–6 v. Mills, ___ F. 4th ___, 

___, 2021 WL 4860328, *6 (CA1, Oct. 19, 2021). But when 

judging whether a law treats a religious exercise the same 

as comparable secular activity, this Court has made plain 

that only the government’s actually asserted interests as 

applied to the parties before it count—not post-hoc reimaginings of those interests expanded to some society-wide

level of generality. Fulton, 593 U. S., at ___ (slip op., at 6); 

Tandon, 593 U. S., at ___ (slip op., at 2); Lukumi, 508 U. S., 

at 544–545. “At some great height, after all, almost any 

state action might be said to touch on ‘. . . public health and

safety’ . . . and measuring a highly particularized and individual interest” in the exercise of a civil right “‘directly

against . . . these rarified values inevitably makes the individual interest appear the less significant.’” Yellowbear v. 

Lampert, 741 F. 3d 48, 57 (CA10 2014) (quoting J. Clark,

Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 
 

 

 

6 DOES 1–3 v. MILLS 

GORSUCH, J., dissenting 

327, 330–331 (1969)). This Court’s precedents “do not support such a lopsided inquiry.” 741 F. 3d, at 57. 

That takes us to the application of strict scrutiny. Strict 

scrutiny requires the State to show that its challenged law 

serves a compelling interest and represents the least restrictive means for doing so. Lukumi, 508 U. S., at 546. For 

purposes of resolving this application, I accept that what we 

said 11 months ago remains true today—that “[s]temming 

the spread of COVID–19” qualifies as “a compelling interest.” Roman Catholic Diocese of Brooklyn v. Cuomo, 592 

U. S. ___, ___ (2020) (per curiam) (slip op., at 4). At the 

same time, I would acknowledge that this interest cannot 

qualify as such forever. Back when we decided Roman 

Catholic Diocese, there were no widely distributed vaccines.1 Today there are three.2 At that time, the country

had comparably few treatments for those suffering with the

disease. Today we have additional treatments and more 

appear near.3 If human nature and history teach anything, 

—————— 1Our opinion in Roman Catholic Diocese was published on November 

25, 2020. COVID–19 vaccines outside of clinical trials weren’t available 

to the public until the following month. See P. Loftus & M. West, First 

Covid-19 Vaccine Given to U. S. Public, Wall Street J., Dec. 14, 2020, 

https://www.wsj.com/articles/covid-19-vaccinations-in-the-u-s-slated-tobegin-monday-11607941806. 2Over 200 million Americans, nearly seven in ten, have received at 

least one dose of these vaccines. Nearly six in ten Americans have been

fully vaccinated, including about 85% of those older than 65. See CDC, 

COVID–19 Vaccinations in the United States, COVID Data Tracker (Oct.

28, 2021), http://covid.cdc.gov/covid-data-tracker/#vaccinations_vacctotal-admin-rate-total. Among States, Maine has particularly high vaccination rates: About 70% of its population has been fully vaccinated, 

good for fourth-best in the Nation. See Maine Coronavirus Vaccination 

Progress, USA Facts (Oct. 26, 2021), https://usafacts.org/visualizations/

covid-vaccine-tracker-states/state/maine. 3C. Johnson, Merck’s Experimental Pill To Treat COVID–19 Cuts Risk 

of Hospitalization and Death in Half, the Pharmaceutical Company Reports, Washington Post, Oct. 1, 2021, https://www.washingtonpost.

com/health/2021/10/01/pill-to-treat-covid/ (noting that as of October 1,

2021, “[t]he United States moved a major step closer . . . to having an 
 

 

 

 

 

Cite as: 595 U. S. ____ (2021) 7 

GORSUCH, J., dissenting 

it is that civil liberties face grave risks when governments

proclaim indefinite states of emergency.

Assuming for present purposes that its interest is a compelling one, Maine has not shown that its rule represents 

the least restrictive means available to achieve it. The 

State says that, to meet its four stated goals above, 90% of 

employees at covered health facilities must be vaccinated. 

Shah Decl. 43, ¶54; State Respondents’ Brief in Opposition

9. The State doesn’t offer evidence explaining the selection

of its 90% figure. But even taking it as given, Maine does 

not explain how denying exemptions to religious objectors 

is essential to its achieving that threshold statewide, let 

alone in the applicants’ actual workplaces. Had the State 

consulted its own website recently, it would have discovered 

that, as of last month, hospitals were already reporting a 

vaccination rate of more than 91%, ambulatory surgical

centers 92%, and all other entities roughly 85% or greater.4 

Current numbers may be even higher. What’s more, 

healthcare providers that employ four of the nine applicants in this case already told the media more than a week 

ago that they have reached 95% and 94% vaccination rates 

among their employees.5 Many other States have made do 

with a religious exemption in comparable vaccine mandates. See Brief for Becket Fund for Religious Liberty as 

Amicus Curiae 13 (observing that the overwhelming major-

—————— 

easy-to-take pill to treat covid-19 available in the nation’s medicine cabinet”). 4Maine Center for Disease Control and Prevention, Maine Health Care 

Worker COVID–19 Vaccination Dashboard (Oct. 27, 2021), https://www.

maine.gov/dhhs/mecdc/infectious-disease/immunization/publications/healthcare-worker-covid-vaccination-rates.shtml. 5 J. Lawlor, Maine Sees Jump in Vaccinations Among Health Care 

Workers as Deadline Nears, Lewiston Sun J., Oct. 14, 2021, https://www. 

sunjournal.com/2021/10/13/maine-reports-893-cases-of-covid-19-over-a-4-

day-period (Northern Light Health reporting 95.5% vaccination rate, 

MaineHealth reporting a 94% rate). 
 

 

8 DOES 1–3 v. MILLS 

GORSUCH, J., dissenting 

ity of States with similar mandates provide a religious exemption). 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. 

Looking to the other traditional factors also suggests relief is warranted. Before granting a stay or injunctive relief,

we ask not only whether a litigant is likely to prevail on the 

merits but also whether denying relief would lead to irreparable injury and whether granting relief would harm the 

public interest. Roman Catholic Diocese, 592 U. S., at ___– 

___ (slip op., at 5–7); see also 28 U. S. C. §1651(a). The answer to both questions is clear. This Court has long held

that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion). And as we have seen, Maine has so far 

failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public 

health interests any more than its medical exemption already does.

This case presents an important constitutional question,

a serious error, and an irreparable injury. Where many

other States have adopted religious exemptions, Maine has 

charted a different course. There, healthcare workers who 

have served on the front line of a pandemic for the last 18 

months are now being fired and their practices shuttered.

All for adhering to their constitutionally protected religious

beliefs. Their plight is worthy of our attention. I would 

grant relief.