Air Force Officer Gets Injunction Against Required COVID Vaccine

In Air Force Officer v. Austin, (MD GA, Feb. 15, 2022), a Georgia federal district court, invoking RFRA and the 1st Amendment, granted a preliminary injunction to an Air Force officer who sought a religious exemption from the Air Force's COVID vaccine mandate.  The court said in part:

[T]he Court agrees with Plaintiff’s argument that Defendants haven’t “shown that vaccination is actually necessary by comparison to alternative measures[]” since “the curtailment of free [exercise] must be actually necessary to the solution.”...

Moreover, one must keep in mind that the Air Force has rejected 99.76% of all religious accommodation requests.... With such a marked record disfavoring religious accommodation requests, the Court easily finds that the Air Force’s process to protect religious rights is both illusory and insincere. In short, it’s just “theater.”...

Defendants’ COVID-19 vaccination requirement allows service members to refuse vaccination for secular reasons while disallowing refusal based on religious reasons.... No matter whether one service member is unvaccinated for a medical reason and another unvaccinated for a religious reason, one thing remains the same for both of these service members—they’re both unvaccinated. In other words, both of these service members pose a “similar hazard” to Defendants’ compelling interest in “[s]temming the spread of COVID-19” within the military....

[W]hat real interest can our military leaders have in furthering a requirement that violates the very document they swore to support and defend? The Court is unquestionably confident that the Air Force will remain healthy enough to carry out its critical national defense mission even if Plaintiff remains unvaccinated and is not forced to retire.

Thomas More Society issued a press release announcing the decision. 

Supreme Court Refuses To Enjoin NYC Vaccine Mandate For Teachers

Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, Justice Sotomayor, in Keil v. City of New York, (Sup.Ct., Feb. 11, 2022) refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. The Second Circuit had held that the process for determining whether  a teacher or administrator is entitled to a religious exemption is unconstitutional.  However, it allowed the school system two weeks to reconsider the applications by the named plaintiffs for religious exemptions. (See prior posting).  After reconsideration, the City granted only one of the 14 plaintiffs an exemption. New York Times reports on the decision.

Suit By Jewish And Catholic Plaintiffs Challenge "Key To NYC" Vaccination Requirement

A suit raising 1st and 14th Amendment claims was filed this week in a New York federal district court by five Orthodox Jews (including a rabbi and a yeshiva teacher), and by a Catholic  man, challenging New York City's "Key To NYC" program.  Key To NYC requires individuals to be vaccinated for COVID in order to enter restaurants, entertainment venues and fitness facilities. Plaintiffs contend that they have religious objections to the COVID vaccine.  Their religious objections are set out at length in the complaint (full text) in Jane Doe 1 v. Adams, (ED NY, filed 2/7/2022).  Some of the religious objections are similar to those raised in many other cases, i.e. objections to vaccines developed with the the use of fetal cell lines originating from abortions.  However, the religious objections cited by the Jewish plaintiffs include contentions that have not commonly been raised in past litigation. Here are two examples of the cited beliefs:

Submitting to a government dictate that conditions freedom on vaccination is a form of slavery and subjugation. This violates numerous commandments in the Torah that require one to remember and internalize the great Exodus from slavery in ancient Egypt....

Rabbi Moshe Schreiber, better known as the Chasam Sofer (1762 to 1839), an ancestor of John Doe 1’s wife and the leading Orthodox Rabbi in opposition to the Reform Judaism movement, stated the famous aphorism Chadash Assur Min Hatorah: That which is new is prohibited by the Torah. This was specifically aimed at the attempts to overhaul and change ancient traditions and customs, by the followers of Reform Judaism. The notion that healthy people should be viewed as sick until they can prove their innocence by vaccination in order to be part of society is a new concept that is being forced on humanity as part of the “New Normal” and “Great Reset.” This newfangled posture in human relations that is being imposed by force, has no basis in the Torah....

Thomas More Society issued a press release announcing the lawsuit.

 

TRO Granted To 2 Military Members Denied Religious Exemptions From Vaccine Mandate

In Navy Seal I v. Biden, (MD FL, Feb. 2, 2022), a Florida federal district court issued a temporary restraining order enjoining the military from enforcing its COVID vaccination mandate against two individual service members until Feb. 11 in order to maintain the status quo until a hearing on a preliminary injunction is held.  The service members faced imminent removal from command positions for refusing vaccination. The court said in part:

The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence).

Liberty Counsel issued a press release announcing the decision. (See prior related posting.)

Court Refuses To Enjoin Medical Campus' Vaccination Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Jan. 27, 2022), a Colorado federal district court refused to grant a preliminary injunction against the COVID vaccination requirements of the University of Colorado's Medical Campus.  Under a revised policy, employees are entitled to a religious accommodation if the accommodation would not unduly burden the health and safety of others.  Medical students are not entitled to religious accommodations.  The court found the policy neutral and generally applicable, and so subject only to rational basis review.  The court said in part:

[T]he Court does not see how offering employees the opportunity to request a religious accommodation could amount to treating comparable secular activity more favorably than religious exercise. For one thing, Plaintiffs have not shown that employees and students are comparable in this context....

[A]lthough the University has determined it can accommodate some employees by allowing them to work remotely, Plaintiffs have made no showing that a similar accommodation for students is practicable.  And ... the ... Policy treats employees and students differently because of Title VII of the Civil Rights Act of 1964, which protects the former but not the latter....

The court also concluded that the presence of medical exemptions does not prevent the Policy from being generally applicable.

10th Circuit Affirms Dismissal Of Churches Challenge To Colorado COVID Restrictions

In Denver Bible Church v. Polis, (10th Cir., Jan. 24, 2022), 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.  The court dismissed most of the claims against the state on mootness grounds, finding that changes in state restrictions have lifted all COVID limits on churches. The facial challenge to the state's emergency disaster statute was dismissed because the statute is neutral and generally applicable.  The court then dismissed for lack of standing plaintiffs' claim that the federal government violated RFRA by distributing COVID relief aid to Colorado while the state was violating plaintiffs' free exercise rights.

Free Exercise Challenges To OSHA Vaccine Mandate Dismissed By Supreme Court In Light Of NFIB Decision

 As has been widely reported, earlier this month in National Federation of Independent Business v. OSHA, (Sup. Ct., Jan. 13, 2022), the Supreme Court held that OSHA exceeded its statutory authority in ordering vaccination of employees in all businesses with more than 100 employees.  Today, the Supreme Court dismissed 13 cases in which the same OSHA regulation was challenged. (Order List). Among those dismissed were two cases brought by religious institutions that raised specific religious freedom objections to the vaccine mandate: Southern Baptist Theological Seminary v. OSHA, (Docket No. 21A246, dismissed 1/24/2022) and Word of God Fellowship, Inc. v. OSHA, (Docket No. 21A250, dismissed 1/24/2022). More details of the challenges in those two cases are discussed in this prior posting.

Split En Banc 9th Circuit Denies Review of Refusal To Enjoin School Vaccine Mandate that Lacks Religious Exemption

The U.S. 9th Circuit Court of Appeals has denied en banc  reconsideration of the refusal to enjoin, pending appeal, a school district's COVID vaccine mandate that does not provide for religious exemptions. In Doe v. San Diego Unified School District, (9th Cir., Jan. 14, 2022), the court denied en banc review of the panel's decision, with various judges filing opinions dissenting from, or concurring with, the denial. Judge Bumatay, in a 21-page opinion joined by six other judges (and concurred in by one judge with senior status), dissented, saying in part:

Simply put, the District can’t have it both ways by allowing secular exemptions but prohibiting religious ones. If the District offers any secular vaccine exemption with a similar risk profile to a religious exemption, it must satisfy strict scrutiny to exclude a religious exemption. The Constitution forbids the District from picking and choosing its preferred secular exemptions while disfavoring religious exemptions. And this remains true in times of crisis.

Judges Berzon and Bennett filed an opinion concurring in the denial of reconsideration which offered rebuttals to each point made by Judge Bumatay in his dissent. Judge Bress, joined by Judge Bade, and Judge Forrest filed a briefer dissenting opinions as well.

Air Force Officer Sues After Accommodation For Religious Objection To COVID Vaccine Is Denied

Suit was filed last week in a Georgia federal district court by a female Air Force officer who has served in the military for 25 years and who was forced into retirement when she refused for religious reasons to take any of the current COVID vaccines.  Her request for a religious accommodation was denied.  The complaint (full text) in Air Force Officer v. Austin, (MD GA, filed 1/6/2022), alleges in part:

52. As a Christian, Plaintiff believes that abortion is a grave evil and contrary to her faith.

53. Plaintiff sincerely believes that receiving a vaccine that was derived from or tested on aborted fetal tissue in its development would violate her conscience and is contrary to her faith....

55. In addition, in accordance with her faith, Plaintiff believes that her “body is the temple of the Holy Spirit” (1 Cor. 6:19-20), and that injection with a novel substance of unknown long-term effects would violate this belief.

Plaintiff claims that the Air Force's actions violate RFRA and the 1st Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit. 

Challenge to Louisiana COVID Worship Restrictions Dismissed As Moot

In Spell v. Edwards, (MD LA, Jan. 12, 2022), a Louisiana federal district court, on remand from the 5th Circuit, again dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The court explained:

On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this Court’s November 10 dismissal order, and remanded with instructions to reconsider Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo, ... South Bay United Pentecostal Church v. Newsom, ... and Tandon v. Newsom....

Now, with the benefit of the Supreme Court’s guidance, the Court reaches the same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims for injunctive relief because the challenged restrictions have expired on their own terms and there is no indication whatsoever that crowd-size limits on indoor assembly will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand for damages fails because there is not now, and never has been, a “clearly established” right to unrestricted religious assembly.... Thus, Defendants are shielded from liability by qualified immunity.

RNS reports on the decision.

7th Circuit: Church's Suit Against Rescinded COVID Order Is Moot

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., Jan. 11, 2022), the U.S. 7th Circuit Court of Appeals affirmed an Illinois federal district court's denial of an injunction against a now-rescinded COVID order by the Governor of Illinois limiting the number of people who could attend a religious service. The district court based its decision on mootness grounds, even though the 7th Circuit had previously held the case was not moot. The 7th Circuit now said however:

More than 19 months have passed since they were last subject to an attendance limit, and the Governor has not suggested that another is likely.  A legal conclusion that a rescinded order violated the Constitution would not entitle anyone to an injunction....

6th Circuit Tells District Court To Reconsider Injunction Denial Against School Mask Order

In Resurrection School v. Hertel, (6th Cir., Jan, 12, 2022), the U.S. 6th Circuit Court of Appeals vacated a Michigan federal district court's denial of a preliminary injunction against Ingham County, Michigan's COVID order requiring elementary school students, including those in religious schools, to wear masks in the classroom. It sent the case back to the district court for it to reconsider  the question of whether parents of religious school students are entitled to an injunction pending appeal. The court based its order on the fact that the district court relied on a 6th Circuit decision that was subsequently vacated by an en banc order.

"Spiritual Distress" From Employer's Vaccine Mandate Is Not "Irreparable Injury"

In Romano v. Blue Cross Blue Shield of Michigan, (ED MI, Jan. 3, 2022), a Michigan federal district court denied a preliminary injunction to an employee who was to be fired because he refused to comply with his employer's COVID vaccine mandate.  Plaintiff's refusal was based on religious objections and he claimed the employer's denial of his request for a religious exemption violated Title VII, the Michigan Elliot-Larsen Civil Rights Act, the Free Exercise Clause and the Michigan Constitution. However, the court concluded that plaintiff did not meet the "irreparable injury" requirement necessary to support an injunction.  The court said in part:

Plaintiff claimed that his damages are irreparable because he will be fired, lose prestige and seniority, have his reputation marred, and suffer "spiritual distress."... But none of the alleged harms are irreparable....

Although the Court is sympathetic to religious persons who must confront the "impossible choice," Plaintiff never developed a sound legal argument for why the injury attributable to "impossible choice" is irreparable.... Plaintiff instead cited cases that enjoined government COVID19 vaccine mandates—not private COVID-19 vaccine mandates.... As Judge Pittman noted in a similar case, although "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," the First Amendment does not apply to private companies like Defendant....

Going forward, other plaintiffs may have an avenue for injunctive relief in Title VII COVID-19 vaccine mandate cases based on stronger legal arguments and facts.... Yet it is not the Court's role to advance legal and factual arguments for litigants; the Court resolves disputes based on the arguments that litigants assert.

National Law Review reports on the decision.

Rhode Island Vaccine Mandate For Health Care Workers Upheld

In Dr. T v. Alexander-Scott, (D RI, Jan. 7, 2022), a Rhode Island federal district court refused to issue a preliminary injunction in a free exercise challenge to a Rhode Island Department of Health regulation requiring all health care workers to be vaccinated against COVID.  The Regulation contains a narrow medical exemption, but no religious exemption. The court (which had previously denied a temporary restraining order) concluded that the regulation is both neutral and generally applicable. The court said in part:

The Regulation’s medical exemption serves the state’s principal purpose of protecting public health. A failure to exempt the limited number of individuals whose health a vaccine may jeopardize would be counterproductive to that goal to the extent of illogicality. There is no suggestion of a discriminatory bias against religion.

The court also concluded that since the regulation is silent as to religious exemptions, it does not preclude compliance with the reasonable accommodation requirements of Title VII of the 1964 Civil Rights Act.

Navy Enjoined From Applying Vaccine Mandate To Plaintiff Religious Objectors

 In U.S. Navy SEALs 1-26 v. Biden, (ND TX, Jan. 3, 2022), a Texas federal district court issued a preliminary injunction barring the U.S. Navy from imposing its COVID-19 vaccine mandate on 35 Navy service members who are plaintiffs in the case.  The court held that plaintiffs need not exhaust their military remedies before suing because, while the Navy's policy provides for religious exemptions, the denial of each exemption request is predetermined.  Also, even if a religious exemption is granted, the service member is then permanently barred from deployment.

The court concluded that applying the vaccine mandate to plaintiffs violates the Religious Freedom Restoration Act, saying in part:

Because the Plaintiffs have demonstrated a substantial burden, Defendants must show that this burden furthers a compelling interest using the least restrictive means....

Even if Defendants have a broad compelling interest in widespread vaccination of its force, they have achieved this goal without the participation of the thirty-five Plaintiffs here. At least 99.4% of all active-duty Navy servicemembers have been vaccinated.... The remaining 0.6% is unlikely to undermine the Navy’s efforts.... With a 99.4% vaccination rate, the Navy’s herd immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death....

Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate includes carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines.... Because these categories of exempt servicemembers are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear.... As a result, the mandate is underinclusive.

The court also concluded that applying the mandate to plaintiffs violates the 1st Amendment's free exercise clause because the mandate is not neutral and generally applicable.

First Liberty issued a press release announcing the decision.

British Employment Tribunal Says Equality Act Does Not Cover Discrimination Because Of Fear Of COVID

Among other things, Britain's Equality Act, §10, prohibits discrimination on the basis of "belief".  In X v. Y, (Empl. Trib., Dec. 13, 2021), an Employment Tribunal in England's city of Manchester held that an employee's fear of catching COVID-19 and her need to protect herself and others does not qualify as a "belief" for purposes of the Act.  The Tribunal said in part:

I do not find that the claimant’s fear amounts to a belief. Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another.... However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10.

Law & Religion UK reports on the decision.

Christian Organizations Ask Supreme Court To Stay OSHA Private-Employer Vaccine Mandate

Last Friday, in a 2-1 decision in In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, (6th Cir., Dec. 17, 2021), the U.S. 6th Circuit Court of Appeals dissolved a stay of OSHA's Emergency Temporary Standard that calls for employers of of 100 or more persons to require either COVID vaccination of employees or weekly testing (and masks) for unvaccinated workers. Challenges in some three dozen cases had been consolidated in the 6th Circuit which then had authority to modify or dissolve the prior stay issued by the 5th Circuit. 

Among the consolidated cases was one brought by a number of Christian schools, colleges and organizations that were subject to the rule. They quickly filed an Emergency Application with the U.S. Supreme Court asking for a stay pending appeal of the 6th Circuit's decision. The Application (full text) in Southern Baptist Theological Seminary v. OSHA, (Sup. Ct., filed 12/17/2021) argues:

OSHA lacks jurisdiction to regulate religious non-profit institutions, because they are not “employers” under the OSH Act.

It goes on to contend that the OSHA rule also violates Applicants' religious freedom rights under RFRA and the 1st Amendment, saying in part:

OSHA “commandeers” Religious Institutions “to compel [their] employees” to comply with the mandate.... To ensure compliance, Religious Institutions must probe their ministers’ and employees’ intimate and personal medical decisions that often implicate their religious beliefs. This is precisely the “secular control or manipulation” that the First Amendment prohibits.... In addition, the mandate violates the First Amendment by setting the “terms and conditions of employment” to work for Religious Institutions ... and interfering with their ability to “select[] ... the individuals who play certain key roles”....

Religious Institutions exercise their faith by providing seminary training, providing Catholic and Christian education, engaging in nonprofit ministries, and operating for-profit businesses according to Christian values. The Mandate will force Religious Institutions to take faculty out of classrooms, and staff out of operating these organizations and businesses—for testing on a weekly basis or for non-compliance—which will significantly disrupt Religious Institutions’ mission, including for-profit businesses’ operations and exercise.... This burden is substantial—not mere inconvenience—because Religious Institutions’ employees are not fungible.

ADF issued a press release announcing the filing of the Emergency Application. SCOTUblog discusses the filing.

A second Emergency Application was filed by a different group of Christian organizations.  The Application (full text) in Word of God Fellowship, Inc. v. OSHA, (Sup. Ct., filed 12/19/2021) contends in part:

... [T]he violation of the Ministries’ religious faiths is not cured by the provisions of the ETS and Title VII that provide them with discretion to grant religious accommodations to their employees.... The Ministries cannot put their employees to the test by requiring them to seek religious accommodations for the government-imposed vaccine mandate.... In other words, even asking their employees to make a decision of religious conscience about the vaccine mandate causes the Ministries to engage in what they believe is sin. Moreover, the mask requirement for unvaccinated employees also burdens the Ministries’ religious beliefs, because they believe that OSHA’s requirement that they mask unvaccinated employees would forcibly identify those who are unvaccinated and cause division within their organizations.... The Ministries believe they have a Biblical duty to promote unity within their organizations.

Axios reports on this filing.

Defense Authorization Act Requires Religious Exemptions From COVID Vaccine Mandate

On Wednesday, the Senate gave final approval to S.1605, the National Defense Authorization Act for Fiscal Year 2022 (full text) by a vote of 88-11. The bill, which was previously passed by the House, now goes to the President for his signature. The bill-- which is over 2000 pages in length-- includes the following provision:

Section 720: The Secretary of Defense shall establish uniform standards under which covered members may be exempted from receiving an otherwise mandated COVID-19 vaccine for administrative, medical, or religious reasons.

Soap Opera Star Sues ABC Over Religious Exemption To Vaccine Mandate

Litigation over religious exemptions from COVID vaccine mandates continues to grow. Yesterday, Ingo Rademacher-- well known for portraying Jasper Jacks on the ABC soap opera General Hospital-- sued in a California state court after his request for a religious exemption from ABC's vaccine requirement was denied. He argues that the expansive right to privacy afforded by the California state constitution protects both informational privacy and bodily integrity, and can be enforced against private parties. The complaint (full text) in Rademacher v. American Broadcasting Companies, Inc., (CA Super. Ct., filed 12/13/2021) contends:

ABC does not have the authority to force a medical treatment on its employees against their will. Even if it did, it must offer religious exemptions to the forced treatment to anyone who requests one. It cannot discriminate among religions and cannot second-guess the sincerity of one's religious beliefs....

Deadline reports on the lawsuit.

Supreme Court Denies Relief In Challenge To NY Vaccine Mandate That Lacks Religious Exemption

In another "shadow docket" case, the U.S. Supreme Court today in a brief Order (full text) denied injunctive relief in We The Patriots USA v. Hochul. Justices Thomas, Alito and Gorsuch dissented. The case was a challenge to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The 2nd Circuit had also denied an injunction. (See prior posting.) CNBC reports on the Court's action.