In Lewis-Williams v. San Francisco Bay Area Rapid Transit District, (9th Cir., Sept. 11, 2026), the U.S. 9th Circuit Court of Appeals upheld a jury's verdict against the Bay Area Rapid Transit District (BART). The jury found BART failed to show that accommodating employees' religious objections to the Covid vaccine would have imposed undue hardship on BART. The jury awarded 6 former employees $7.8 million in damages. The court said in part:
Given that BART is not in the health and safety business, that the Six Former Employees all had roles that required minimal close-quarters interaction with other individuals, and that no evidence suggests that the Six Former Employees were unable or unwilling to wear a mask or take similar precautions, substantial evidence supports the jury’s verdict....
Because we affirm the jury’s verdict on the Six Former Employees’ Title VII and FEHA claims, we need not address the now-moot conditional cross-appeal of the order granting summary judgment for BART on their Free Exercise claim....
Judge Nelson filed a lengthy concurring opinion focusing on plaintiffs' free exercise claim, saying in part:
... The district court concluded that BART’s review process did not violate general applicability under Employment Division v. Smith, 494 U.S. 872 (1990), because the review process did not allow “unfettered discretion permitting discretionary treatment of religion....
The real problem is that Smith is demonstrably erroneous....
Smith is inconsistent with history and tradition. The Free Exercise Clause represented a powerful promise in 1791: the federal government would not interfere with the exercise of Americans’ religious faith.... Sadly, Smith shirked relevant history and tossed the fullness of the Constitution’s free-exercise protections to the wayside for its regime of neutral and general applicability.
This constitutional guarantee should one day be vindicated, and Smith should be relegated to the annals of history alongside other demonstrably erroneous precedents....
Underlying the district court’s conclusion is a deep circuit split. The Third, Sixth, and Eleventh Circuits agree with our view that discretion—rather than unfettered discretion—can suffice to render a government policy not generally applicable..... On the other side, the Second and Tenth Circuits hold that if exemption policies do not grant “unfettered” discretion and exemptions are “objectively defined,” those policies remain generally applicable....
In part, the reason discretionary mechanisms in government policies trigger strict scrutiny under the Free Exercise Clause is because of the inherent hostility the administrative state has historically demonstrated against religion. “Religious discrimination is structurally embedded within administrative power”—even if unintentionally— because agency administrators, like those at BART, necessarily predicate their operations on an ethos of rationalism and secularism....
A mechanism that allows agency administrators to exercise discretion, individually judge the religious beliefs of dissenters, and grant exemptions necessarily means such a policy is not generally applicable....
The Fourteenth Amendment framed Free Exercise as a right that allowed for exemptions to neutral and generally applicable laws. In doing so, the Radical Republicans sought to allow freedom of religion to extend to areas where such rights were sidelined for ostensibly neutral and generally applicable laws.
The Reconstruction Framers sought to combat generally applicable laws in the antebellum South that made it a crime to disseminate anti-slavery religious ideas and teach African Americans how to read....
