In Detwiler v. Mid-Columbia Medical Center, (9th Cir., April 15, 2926), the U.S. 9th Circuit Court of Appeals denied both a panel rehearing and an en banc rehearing in a case involving a medical center employee's claimed religious objections to both a Covid vaccine requirement and to the accommodation granted by her employer. A 3-judge panel affirmed the district court's dismissal of the employee's Title VII lawsuit, concluding that her objections were secular, not religious. (See prior posting.) Her religious exemption from vaccination was conditioned, in part, on her having weekly antigen testing. She objected to that accommodation because she believed the ethylene oxide used in obtaining a nasal swab for the test was carcinogenic and her religion prohibited her from defiling her body in this manner.
In two dissenting opinions, a total of eight judges dissented from the denial of an en banc rehearing, some joining in both dissenting opinions. Judge Forrest's dissent, joined by five other judges, said in part:
Our role in assessing whether a plaintiff has shown a bona fide religious belief is a “narrow function.”... Generally, we may determine only whether the religious conflict identified by the plaintiff “reflects an honest conviction.”... This is because anything more extends beyond a judge’s competence....
The court’s reasoning gives no credence to Detwiler’s claim that she received revelation from God that informed her health choices. For those who believe that God can provide individualized guidance for daily living, whether that guidance relates to “secular” or “spiritual” matters is often a distinction without a difference—both emanate from beliefs about deity and its relationship with humanity. That is, many believers do not perceive that the spiritual and the secular are capable of neat separation as relates to matters of revelation....
Judge Tung, joined by six other judges, filed a dissenting opinion which said in part:
Detwiler properly alleged the religious basis of her objection to testing—namely, that her religion forbade her from ingesting a carcinogen, which she viewed as a defilement upon the temple of her body. That her objection was based in part on a medical finding—that the testing is carcinogenic—did not negate her religious motivation in refusing to submit to such testing....
... [T]he panel majority misapplied Title VII’s text and precedent interpreting “religion,” misconstrued Detwiler’s allegations, and split with the holdings of several other circuits.... But perhaps most problematic, the panel majority’s approach would recast as “purely secular” a person’s religious practices whenever those practices turn also on secular considerations. It is hard to imagine, frankly, what religious practice would not turn on secular considerations to some degree.
