Free Exercise Challenge To New Mexico COVID Orders Moves Ahead

McKinley v. Grisham, (D NM, June 7, 2022), involves various challenges to Executive Orders and Public Health Orders issued by New Mexico officials in response to the COVID pandemic. While most of the challenges were dismissed, the court allowed plaintiffs to move ahead with their free exercise challenge to restrictions on in-person gatherings at houses of worship. The court said in part:

Some New Mexico public health orders treated comparable secular activities more favorably than religious exercise. For example, the April 11, 2020, public health order allowed essential businesses 20% occupancy capacity but prohibited mass gatherings in a church, synagogue, mosque or other place of worship....

Taking the allegations as true, it is plausible that the Plaintiffs state a freedom of religion claim. Therefore, whether the public health orders survive strict scrutiny is a factual inquiry that cannot be resolved on this Motion. For the above reasons, Plaintiffs alleged a plausible freedom of religion claim, and this Count cannot be dismissed at this stage.

COVID Testing Requirement Survives Free Exercise Challenge

In Villareal v. Rocky Knoll Health Care Center, (ED WI, June 1, 2022), a Wisconsin federal district court refused to allow a nurse who objected on religious grounds to a COVID testing requirement of a county-run nursing center to file an amended complaint.  The nurse's employment had been terminated her for refusing to comply with the center's testing policy. The court said in part:

Rocky Knoll’s COVID-19 testing policy is neutral. It does not refer to a religious practice.... Nor is its purpose to suppress “religion or religious conduct.”...

It is also generally applicable: Rocky Knoll’s policy does not prohibit religious conduct while permitting other conduct that may undermine its interest in preventing the spread of COVID-19 in its facility and ensuring the safety of its residents and employees....

The court also held that plaintiff cannot recover damages or obtain injunctive relief in federal court for a claim under the right of conscience provisions of the Wisconsin constitution.

7th Circuit Hears Oral Arguments On Reinstatement Of Doctor Who Refuses Vaccination On Religious Grounds

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Halczenko v. Ascension Health, Inc., (Docket No. 22-1040, 5/31/2022). In the case, an Indiana federal district court last December (full text of district court opinion) denied a preliminary injunction to a pediatric intensive care doctor who was denied a religious exemption from a hospital's COVID vaccination requirement and was placed on unpaid leave. The court held that plaintiff had not shown irreparable injury necessary to obtain an injunction.  Compensatory and other relief will be available if he ultimately prevails. Bloomberg Law reports on the oral arguments, saying in part:

One judge during oral argument ... homed in on the speculative nature of Paul Halczenko’s alleged irreparable harm from not getting rehired by Ascension St. Vincent Hospital right away—that not practicing medicine would cause his skills to atrophy and cost him his career.

Other members of the three-judge panel—all of whom were appointed by President Donald Trump—focused on apparent factual and legal shortcomings in the doctor’s bid for a preliminary injunction against Ascension Health Inc. and the hospital.

Certiorari Denied In Church's Challenge To Colorado COVID Restrictions

The U.S. Supreme Court today denied review in Community Baptist Church v. Polis, (Docket No. 21-1328, certiorari denied 5/31/2022). (Order List). In the case, the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state. (See prior posting.)

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate.  Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA.  It alleges in part:

Defendants  have  mandated  that  all  members  of  the  Air  Force  receive  a COVID-19  vaccine,  or  be involuntarily  separated.  In theory, Defendants  offer medical, administrative,  and  religious  accommodations  to  that  mandate.  But  in  practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force. 

First Liberty issued a press release announcing the filing of the lawsuit. 

Washington's State Employee Vaccine Mandate Upheld

In Pilz v. Inslee, (WD WA, May 27, 2022), a Washington federal district court upheld a Proclamation by Washington's governor that requires health care, education, and state-agency workers to be vaccinated against COVID.  Among other challenges in a suit brought by 100 state employees, plaintiffs claim the Proclamation infringes on religious beliefs that conflict with vaccination in violation of the Free Exercise clause. The court said in part:

[T]he Proclamation is in no way directed at any religious exercise and, at most, has an incidental impact on some state employees with particular religious beliefs. Therefore, the Court finds that the Proclamation is neutral and generally applicable. The Proclamation is accordingly subject to rational basis review and must be upheld if it is “rationally related to a legitimate governmental purpose.”

6th Circuit En Banc Dismisses Mask Mandate Challenge As Moot

In Resurrection School v. Hertel, (6 Cir., May 25, 2022), an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. The mandate is no longer in effect. The suit was brought by a private religious school and two parents of school children. One judge concluded that the preliminary injunction appeal moot, but the proceedings for a declaratory judgment and permanent injunction are not. The majority said in part:

For all the reasons recited above—the changed circumstances since the State first imposed its mask mandate, the substantially developed caselaw, the lack of gamesmanship on the State’s part—we see no reasonable possibility that the State will impose a new mask mandate with roughly the same exceptions as the one originally at issue here. This claim is moot—indeed palpably so.

Judge Bush in a 31-page dissent joined by two other judges said in part:

[T]he majority’s decision to declare the entire case against MDHHS moot—rather than simply deciding the preliminary-injunction appeal—has stripped us of a valuable opportunity to clarify the law of our circuit. What the majority should have done, instead, is rule solely on the interlocutory order before us.

Fox2 Detroit reports on the decision.

University's Vaccine Mandate Did Not Violate Free Exercise Rights Of Students

In America's Frontline Doctors v. Wilcox, (CD CA, May 5, 2022), a California federal district court dismissed the associational plaintiff for lack of standing and rejected individual plaintiffs' free exercise challenge (as well as their other challenges) to the University of California Riverside's COVID vaccine mandate. The court said in part:

Plaintiffs contend that Defendants' enforcement of the Policy violates their right to free exercise of religion. The SAC alleges that Defendants "coerc[e] students to make an unnatural choice...either quickly injecting themselves...[with a COVID-19 vaccine] ... or ...disclosing under duress their religious beliefs to Defendants' religious exemption approval panels."... They also contend that Defendants "prejudicially segregate religious people in order to subject them to...testing."... Plaintiffs have religious exemptions from the Policy. Even so, Plaintiffs contend that testing and masks "substantially interfere with students' religious practices of prayer, speech, and deed."...

The Policy is a neutral and generally applicable. It applies to all students, professors, and staff at the University of California and seeks to protect public health and safety. Defendants offer exemptions for religious beliefs, medical reasons, and disability.... The Policy's exemptions pass constitutional muster.... Plaintiffs allege that they requested religious exemptions under "duress" but fail to explain how their decisions to voluntarily submit a one-page exemption form were executed under "duress." Plaintiffs also fail to describe how masks and testing interfere with the students' religious practices of prayer, speech, and deed. Plaintiffs are only required to mask while indoors—a restriction that also applied to vaccinated students at the time the SAC was filed. Presumably Plaintiffs would be indoors to attend class, so it is unclear how the Policy interferes with religious practices.

Court Denies Relief To Air Force Members With Religious Objections To COVID Vaccine

In a 61-page opinion in Roth v. Austin, (D NE, May 18, 2022), a Nebraska federal district court denied a preliminary injunction to 36 members of the Air Force, Air Force Reserve and Air National Guard who have religious objections to complying with the military's COVID vaccine mandate. The court said in part:

One objection made by several airmen is that part of the science giving rise to approved COVID19 vaccines involved use of research derived from aborted fetal cell tissue that was developed decades ago. Certain major religions of the world have long strenuously objected to the use of such research in medicine. However, having lost that battle in significant regard over the decades, many of those same religions have concluded that the remote impact of what they deem to be religiously or ethically objectionable research utilized for the vaccines does not support refusal to take the vaccines on religious grounds today....

The Court concludes, at least at this preliminary stage, that the Air Force has demonstrated it has a compelling interest in the health and readiness of its forces, including individual service members like Plaintiffs. The Court also concludes that the Air Force’s COVID-19 vaccination mandate is the least restrictive means of furthering that compelling interest, as to both the Air Force generally and as to individual Plaintiffs in particular. The Air Force has demonstrated that its process for consideration of religious exemptions was not simply “theater” or “a sham,” but was a process that adhered to the requirements of the law, most specifically RFRA. These conclusions mean that Plaintiffs do not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise of Religion claim to warrant issuance of a preliminary injunction.

Yesterday a notice of appeal to the U.S. 8th Circuit Court of Appeals was filed.

Louisiana Supreme Court Quashes Charges Against Pastor Who Violated COVID Orders

In State of Louisiana v. Spell (Parish of East Baton Rouge), (LA Sup. Ct., May 13, 2022), the Louisiana Supreme Court quashed bills of information that had been issued against a pastor, charging him with violating the governor's COVID orders early in the pandemic.  The Orders limited gatherings and imposed stay-at-home mandates. The pastor continued to lead in-person worship services in violation of the Orders. The majority said in part:

Orders 30 and 33 contain exemptions allowing certain secular activities to proceed as normal without limiting the number of people permitted in a single space at the same time. In many of those gatherings, the risk of spreading the virus appears no  less prevalent than at a comparable gathering in a church. At the very least, the state offered no evidence proving otherwise. The executive orders grant preferential treatment only to secular conduct. This disparate treatment “strike[s] at the very heart of the First Amendment’s guarantee of religious liberty.”

Chief Justice Weimer, joined by Justice Griffin, dissented, saying in part:

In the absence of an evidentiary record, the majority opinion takes the position that if any exceptions whatsoever were carved out from the orders, then strict scrutiny is warranted, and it was the State’s burden to establish that the orders were narrowly tailored. However, this position ignores the circumstances under which the orders were issued and, instead, holds the emergency orders to a standard of scrutiny that has thus far only been applied by the Supreme Court at a much later stage in the pandemic and at a time with much greater evidentiary knowledge

Justice Crichton filed a concurring opinion.  KAKE News reports on the decision, [Thanks to Steven H. Sholk for the lead.]

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

1st Circuit Hears Oral Arguments On Religious Exemption To School's Vaccine Mandate

The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Harris v. University of Massachusetts, Lowell.  In the case, a Massachusetts federal district court rejected a student's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. (See prior posting.)

Preliminary Injunction Denied To Navy SEAL With Religious Objection To COVID Vaccines

 In Navy SEAL 1 v. Austin, (D DC, April 29, 2022), a DC federal district court refused to grant a preliminary injunction to bar discharge or other adverse action against a Navy SEAL who refuses for religious reasons to comply with the military's COVID-19 vaccine mandate.  The court said that plaintiff does not face imminent discharge because another federal district court has issued a class-wide injunction against that. As to other adverse action, the court said in part:

As currently pled, there are a plethora of weaknesses in Plaintiff’s claims that counsel against preliminary relief. First, there appears to be a serious question as to whether Plaintiff’s claims are justiciable, because they require the Court both to evaluate the merits of military expertise and to weigh technical issues of public health and immunology based on novel science that remains unfixed as the current COVID-19 pandemic turns endemic. Second, the Court is concerned that the record as it currently stands does not properly resolve whether mandatory vaccination is the least restrictive means as to Plaintiff to accomplish the Government’s interest in force readiness and national security more broadly. That fault permeates Plaintiff’s RFRA claim, Free Exercise claim, and Equal Protection claim. Taken together, the Court concludes these issues militate against preliminary relief at this early stage of the case.

Free Exercise Challenge To Washington Vaccine Mandate Is Dismissed

 In Wise v. Inslee, (ED WA, April 27, 2022), a Washington federal district court dismissed various challenges to Washington state's vaccine mandate for certain state employees, including free exercise, Title VII religious discrimination, and Establishment Clause claims. The court said in part:

... [T]he State clearly has a legitimate government interest in preventing the spread of COVID-19, an interest that has been endorsed by the Ninth Circuit.... Additionally, the Proclamation is rationally related to that interest because it is based on overwhelming evidence that the vaccines are safe and effective, and increasing vaccination rates among those employees who come into regular contact with vulnerable populations is a rational action to reduce the spread of COVID-19. Accordingly, the Proclamation easily survives federal constitutional scrutiny....

1st Circuit: Employees With Religious Objection To Vaccine Mandate Not Entitled To Injunction

In Together Employees v. Mass General Brigham, Inc., (1st Cir., April 27, 2022), the U.S. 1st Circuit Court of Appeals denied a preliminary injunction to hospital employees who were denied religious exemptions from the hospital's COVID vaccine mandate. The court held that the employees failed to show the irreparable injury necessary to obtain injunctive relief, saying in part:

It is black-letter law that "money damages ordinarily provide an appropriate remedy" for unlawful termination of employment.

Marine With Religious Objections To COVID Vaccine Is Denied Preliminary Injunction

In Short v. Berger, (D AZ, April 22, 2022), an Arizona federal district court refused to grant a preliminary injunction to a Marine Corps major who was denied a religious exemption from the military's COVID vaccine mandate.  Plaintiff is serving as a staff judge advocate.  According to the court:

To date, the USMC has received over 3,600 requests for a religious exemption from the vaccine requirement but has approved only seven of those requests. It appears that, in all seven cases, the applicant was already in the process of separating from the Marines at the time the request was granted. In contrast, the USMC has approved over 900 medical exemptions, including at least 20 permanent medical exemptions.

The court went on:

In his motion for preliminary injunction, Major Short conspicuously does not assert that separation, loss of training and promotion opportunities, loss of pay, and/or a less-than-honorable discharge constitute irreparable injuries.... Instead, the sole theory of irreparable harm articulated in Major Short’s motion is that “being forced to choose between receiving the injection contrary to his religious beliefs, or defying an order, is itself a denial of free exercise, and directly causes irreparable harm.” ... [T]he tangible employment-related harms that Major Short may suffer ... do not qualify as irreparable under Ninth Circuit law because they can be remedied through retrospective relief....  

As for Major Short’s coercion theory, the Court acknowledges that, in many of the recent military vaccine challenges arising outside the Ninth Circuit, courts have suggested that a service member suffers an irreparable injury the moment he is forced to choose between following his religious beliefs and following an order to be vaccinated.... But however persuasive those cases might otherwise be, this Court must follow Ninth Circuit law and the Ninth Circuit has not adopted—and, indeed, appears to have rejected—this theory of irreparable harm....

The court also concluded that beyond the irreparable injury issue, there was uncertainty as to whether Plaintiff would succeed on his RFRA claim.

Company Is Not "State Actor" When It Complies With Federal Vaccine Mandate

In Ciraci v. J. M. Smucker Co., (ND OH, April 20, 2022), an Ohio federal district court dismissed a suit by employees of a food manufacturer who claim that their 1st Amendment free exercise rights were infringed when their employer denied them religious exemptions and required them to comply with the Presidential Executive Order mandating COVID vaccinations for employees of federal contractors. The court said in part:

For Plaintiffs to succeed on their Free Exercise Clause ... claim, they need to establish first that Smucker is a state actor.... 

A private entity is not subject to constitutional constraints except in a few limited circumstances, for example: (1) “when the private entity performs a traditional, exclusive public function;” (2) “when the government compels the private entity to take a particular action;” (3) “when the government acts jointly with the private entity.”...

Here, Plaintiffs allege that Defendant is a federal actor because it acted pursuant to “policies, practices, customs, and procedures created, adopted, and enforced under color of federal law.” Without more facts, this allegation is conclusory and does not plead enough facts to place it in any of the exceptions listed above.

Baseball Team Scout Sues For Religious Exemption From Team's COVID Vaccine Mandate

Yesterday suit was filed in a D.C. federal district court by a scout for the Washington Nationals baseball team who was denied an accommodation for his religious objections to the baseball club's COVID vaccine mandate. The complaint (full text) in Gallo v. Washington Nationals Baseball Club, LLC, (D DC, filed 4/20/2022), claims discrimination on the basis of religion and disability. Thomas More Society issued a press release announcing the filing of the lawsuit.

Supreme Court Refuses Interim Relief In Airman's Religious Challenge To COVID Vaccine Mandate

Yesterday, the U.S. Supreme Court by a vote of 6-3 refused to grant an injunction pending appeal in Dunn v. Austin, (Docket No. 21A599, April 18, 2022). Justices Thomas, Alito and Gorsuch would have granted relief. At issue was a suit by an Air Force Reserve officer who has religious objections to the COVID vaccine. His request for a religious exemption from the military's vaccine mandate was denied. The history is explained in the officer's Emergency Application for Injunction Pending Appeal:

[T]he district court denied a preliminary injunction and an injunction pending appeal. While the motion for a preliminary injunction was pending, respondents removed applicant from his command; he does not seek reinstatement to that post, but seeks only protection against further punishment, including a discharge, because of his religious beliefs. After entering interim relief, the United States Court of Appeals for the Ninth Circuit denied an injunction pending appeal in a one-page order over a dissent by Judge Bade.

(Full text of district court's ruling and the 9th Circuit's decision.) New York Times reports on the Supreme Court's ruling.