In Spivack v. City of Philadelphia, (3d Cir., July 29, 2024), the U.S. 3rd Circuit Court of Appeals vacated the dismissal of a suit brought by Rachel Spivack, an Orthodox Jewish employee of the Philadelphia District Attorney's Office, and remanded the case for trial. Spivack was dismissed from her position for refusing, on religious grounds, to comply with the Office's Covid vaccine mandate. Spivack contended:
“[a]ll three available brands of COVID-19 vaccines constitute a profound violation of the scriptural prohibitions against forbidden mixtures,” and that “[i]njecting such forbidden substances directly into our bloodstream completely challenges scriptural teaching that regards one’s body as the repository of the soul made in God’s image.” ...
The appeals court said in part:
There is ... a dispute of material fact as to whether anti-religious hostility tainted the DAO’s treatment of religious exemptions. That is because a reasonable jury could conclude, based on some evidence in the record, that the DAO’s treatment of religious exemptions reflected “intoleran[ce] of religious beliefs.”...
But Krasner claims that Spivack was disciplined under a later policy—the January 2022 policy, which eliminated the religious exemption altogether and kept only the medical exemption....
That Krasner continued to evaluate medical exemption requests under the January 2022 policy does not undermine that policy’s general applicability. Medical exemptions were a separate and objectively defined category of exemption requests....
The critical question is whether the medical exemptions in these policies are comparable to a religious exemption—in other words, whether the “preferential treatment of secular behavior” in the form of a medical exemption “affect[s] the regulation’s purpose in the same way as the prohibited religious behavior.” ...
Unlike a religious exemption, a medical exemption furthers the DAO’s interest in keeping its employees safe and healthy by allowing employees for whom the COVID-19 vaccine would cause death or illness to abstain from vaccination....
[T]he DAO must show that its policy was narrowly tailored, which “requires the government to demonstrate that a policy is the least restrictive means of achieving its objective.”...
Unanswered factual questions pervade this inquiry. How many similar exemption requests would the DAO need to grant? Would other, less restrictive mitigation measures for employees with religious exemptions ... have achieved the office’s objectives? If strict scrutiny applies, a jury must consider these questions....
First Liberty Institute issued a press release announcing the decision.
