In Bacon v. Woodward, (9th Cir., June 18, 2024), the U.S. 9th Circuit Court of Appeals in a 2-1 decision reversed a Washington federal district court's dismissal of a suit by firefighters who claim that their free exercise rights were infringed by the city of Spokane refusing to accommodate their religious objections to the Covid vaccine. The majority said in part:
The Complaint alleges that, once unvaccinated firefighters were terminated, Spokane would turn to firefighters from neighboring fire departments to fill the gaps left by the firefighters’ departure even though those fire departments granted religious accommodations to their employees. In other words, Spokane implemented a vaccine policy from which it exempted certain firefighters based on a secular criterion—being a member of a neighboring department—while holding firefighters who objected to vaccination on purely religious grounds to a higher standard. The Free Exercise Clause prohibits governments from “treat[ing] comparable secular groups more favorably.”...
... [T]he Complaint alleges at least three less restrictive ways that “[t]he Mayor, the Fire Chief, and the City could accomplish its same compelling purpose.”...
Judge Hawkins dissented, saying that rational basis review should apply:
The complaint alleges that the City Defendants applied the Proclamation to their employees uniformly and treated medical and religious objectors the same. The complaint also alleges that other cities and entities adopted different policies and the City Defendants had pre-existing mutual aid agreements with some neighboring fire departments. The complaint then predicts that, as a result of those pre-existing mutual aid agreements, some unvaccinated firefighters from neighboring departments may operate within the City of Spokane. In my view, these allegations are insufficient to plausibly show that the Proclamation, as implemented by the City Defendants, is not neutral or generally applicable.
