The United States Supreme Court this week – by a 6 to 3 vote – refused to accept two cases challenging New York’s mandate that all healthcare workers receive the COVID-19 vaccine. The ruling leaves the warrant, which offers no religious exemption, in place after the 2nd U.S. Circuit Court of Appeals rejected the plaintiffs’ request to arrest it. Judge Neil Gorsuch issued a dissenting opinion on the decision to dismiss the case, joined by Judge Samuel Alito. Dissent argues that the New York mandate lacks religious neutrality because it initially included a religious exemption which was later removed and due to some controversial statements made by Governor Kathy Hochul regarding the removal of the religious exemption.
People who claim religious objections to the COVID-19 vaccine continue to file lawsuits across the country challenging the legality of vaccination warrants issued by governments and employers. But a survey of cases running through the court system indicates that, like the Supreme Court this week, most courts are ruling against religious objectors, leaving a variety of warrant approaches largely in place.
As usual, drawing clear conclusions about the state of the law would be a mistake! These cases emerge from various factual situations where the details are of great legal importance. For example, is the entity commissioning the vaccine part of the government or a private employer? Is there religious accommodation allowed? Are there other non-religious exemptions allowed? What is the process for evaluating a request for religious exemption? What are the consequences of refusing the vaccine? All of these concerns could tip the balance of interests in cases like this. Yet the vast majority of recent decisions (including one from the U.S. Supreme Court) have seen courts refuse to suspend vaccine requirements for those who refuse for religious reasons.
[For more on the intersection of vaccine mandates and religious liberty, check out Season 3, episode 3 of BJC’s essential podcast, Respecting Religion. BJC General Counsel Holly Hollman and Executive Director Amanda Tyler discuss the issue with clarity and detail. I highly recommend it!]
Here’s a look at recent cases:
In John Doe v. San Diego Unified School District, the U.S. 9th Circuit Court of Appeals on Nov. 28 suspended a requirement issued by the San Diego School District that students 16 and older must receive the COVID-19 vaccine to be eligible to participate in on-site education and extracurricular activities. But the injunction was only granted because the district allowed an automatic deferral for pregnant students, while offering no religious accommodation. The injunction was lifted – and the mandate reinstated – as soon as the exemption for pregnant students was lifted less than a week later. See the decision of December 4.
In Kane vs. DeBlasio, the U.S. 2nd Circuit Court of Appeals halted the process put in place by the New York Department of Education to review requests for religious accommodations from teachers and school administrators required for immunization. The review process required applicants to provide documents from a religious official in support of their application, and it required the rejection of an application where the applicant’s religious leader had made a decision. in favor of vaccination. The court explained that “[d]Giving an individual religious accommodation based on the views publicly expressed by someone else… goes against the Supreme Court…. At the same time, the appeals court upheld the vaccine’s mandate in general as a “reasonable exercise of the state’s power to act to protect public health.”
In All employees c. Mass General Brigham, Inc., the United States Supreme Court refused to grant an emergency relief request filed after the United States 1st Circuit Court of Appeals dismissed an injunction request brought by healthcare workers whose requests for religious exemption from their employer’s vaccine mandate were rejected. The court noted that an injunction for religious discrimination under civil rights law is only appropriate when there is a risk of irreparable harm. Because the damage here is financial (lost wages due to job loss), the court noted, it is reparable with financial reward if healthcare workers are successful. Regarding employees ‘constitutional claims, because their employer is private and not a government actor, the court said, Mass General cannot violate their employees’ First Amendment rights.
Likewise, in Federoff v. Geisinger Clinic, a Pennsylvania district court made short work of healthcare workers’ demands for an injunction ending their employer’s tenure to receive the vaccine or undergo regular testing. Not only are their constitutional claims against a private employer inappropriate, the court noted, but their employment discrimination claims suffer from the refusal to provide information about their religious objection. Via Religion Clause, the court explains:
[W]What Employees provided to the Court suggests that their religious objections are neither rooted in religion, nor really objections. The relief requested by the employees is at war with itself: it is particularly difficult, if not impossible, to reconcile the relief requested by the employees – that I demand that all employees be tested – with their religious opposition itself. saying deeply felt on the test. If you are ready to be tested while the vaccinated are too, you are not religiously opposed to the test. Moreover, the over-emphasis that employees place on the “science” of testing and its potentially harmful health effects in their documents only reinforces this Court’s skepticism that the objection they might have is. rooted in scientific or medical belief, not religion. Far from carrying their burden, the pleadings and employee briefing fail to spell out how their opposition to Geisinger’s policies is rooted in religious belief. Their articles do not address the issue at all.
In Troogstad v. City of Chicago, an Illinois federal district court refused to suspend the requirement for city employees to receive the vaccine, dismissing the plaintiffs’ claim that the denial of a vaccination is a “basic right.” The accommodation request must be heard fairly, the tribunal noted in its opinion, but there is no absolute right of exemption:
[W]hen a person’s decision to refuse a vaccine creates negative (even sometimes fatal) consequences for other people, [privacy] the interest is not absolute.
To be clear, if a particular employee is denied a religious exemption, she can challenge that denial, based on the particular facts of her case, as a violation of her free exercise rights. But no applicant has been denied a religious exemption on grounds other than failing to adequately explain their individual circumstances, as required by the city’s vaccination policy.
In Seal I v Biden, a Florida federal district court has deferred to at least Jan. 7, 2022 a ruling on a preliminary injunction request filed by members of the U.S. military against the Biden administration’s vaccine mandate for all military personnel. The mandate includes a religious exemption process, but members of the complaining service contend that this is a sham because to date no exemption has been granted. The court noted that it was too early to assess the data as many claims remain pending, and it ordered each branch of the military to provide regular data from January 7, 2022.
Meanwhile, the attorney general and governor of Oklahoma sued the Biden administration over its mandate of vaccines for all federal employees. Despite the fact that the mandate allows for religious accommodation, the plaintiffs argue that it violates the free exercise clause.