2nd Circuit Remands Two Plaintiffs' Claims for Improper Denial of Religious Exemptions from Vaccine Mandate

New Yorkers for Religious Liberty v. City of New York, (2d Cir., Nov. 13, 2024), is a decision on appeals of two cases challenging denials of religious exemptions from the Covid vaccine mandate imposed by the City of New York on public school teachers and staff.  While affirming the dismissal of many of the claims, the U.S. 2nd Circuit Court of Appeals vacated dismissals of claims by two plaintiffs, Natasha Solon and Heather Clark, and remanded their cases to the district court. The court said in part:

If Solon’s initial, denied exemption application reflected her purely personal religious practices, then she has plausibly pleaded that she was improperly denied an accommodation because the old Arbitration Award Standards only allowed “exemption requests . . . for recognized and established religious organizations,” and did not honor exemptions for those whose “religious beliefs were merely personal.” ...  That could present a First Amendment problem.,,,

... [T]he documents Clark submitted ... describe a religious objection to the vaccine because it is a product of development using fetal cell lines and a “differing substance[]” that she may not ingest consistent with her faith....  Nevertheless, the district court dismissed Clark’s claim because “the [Citywide] panel found that her decision to not receive a vaccin[e] was not based on her religious belief, but rather, on nonreligious sources,” a conclusion the district court deemed “entirely proper . . . under Title VII.”... While such a conclusion could indeed be proper and constitutional if the Citywide Panel had a basis for reaching it, Clark’s allegations support the plausible inference that the Panel denied her request solely on the basis of its characterization of her religious objection as too idiosyncratic rather than as not sincerely held or non-religious in nature. 

Given this possibility, Clark has stated a cognizable as-applied claim at this stage.

NY Sanitation Worker Can Move Ahead on Failure To Accommodate Anti-Vax Beliefs

Decisions on suits by individuals who were denied religious exemptions from now-rescinded Covid vaccine mandates are still being issued by the courts.  In Rizzo v. New York City Department of Sanitation, (SD NY, July 2, 2024), a New York federal district court refused to dismiss a Title VII failure to accommodate claim (as well as similar state-law and local-law claims) brought by a New York City sanitation worker. The court rejected the city's arguments that the worker's objections were based on conscience, not religion. It also rejected, at least at this stage of the litigation, the city's argument that accommodation would impose an undue burden on the city.  The court also allowed plaintiff to move forward on his claim that the city failed to engage in cooperative dialogue as required by the New York City Human Rights Law.  However, the court dismissed plaintiff's Title VII disparate impact claim and his 1st Amendment Free Exercise claim.

9 Arrested In New York During Conflict Between Chabad Factions Over Secret Tunnel

In Brooklyn on Monday, nine people were arrested on charges of criminal mischief and reckless endangerment and three others were issued summonses for disorderly conduct after factional chaos broke out at Chabad's headquarters, known as 770.  As described by NBC New York:

A historic Brooklyn synagogue that serves as the center of an influential Hasidic Jewish movement was trashed this week during an unusual community dispute that began with the discovery of a secret underground tunnel and ended in a brawl between worshippers and police.

The conflict erupted in the global headquarters of the Chabad-Lubavitch movement in Crown Heights, a deeply revered Jewish site that each year receives thousands of visitors, including international students and religious leaders....

But on Tuesday, the synagogue remained closed off by police barricades as New York City building safety agents inspected whether a tunnel dug without official permission may have caused structural damage to the famed property.

Officials and locals said young men in the community recently built the passage to the sanctuary in secret. When the group’s leaders tried to seal it off Monday, they staged a protest that turned violent as police moved in to make arrests....

Those who supported the tunnel, meanwhile, said they were carrying out an “expansion” plan long envisioned by the former head of the Chabad movement, Rebbe Menachem Mendel Schneerson...

The Forward has additional background.

Muslim Call to Prayer Can Be Amplified In New York City

Yesterday, New York City Mayor Eric Adams announced a new initiative to permit mosques to broadcast the call to public prayer on Fridays and during Ramadan. According the announcement from the Mayor's office:

 “Today, we are cutting red tape and saying clearly that mosques and houses of worship are free to amplify their call to prayer on Fridays and during Ramadan without a permit necessary....

... The NYPD’s new legal guidance clarifies for mosques and masjids that the call to prayer is allowed in New York City and not prohibited despite sound restrictions in city neighborhoods.

Under the new guidance, a mosque or masjid can broadcast the call to prayer every Friday between 12:30 PM and 1:30 PM as well as during the sunset prayers every evening during Ramadan....

The NYPD Community Affairs Bureau and Muslim faith leaders will work collaboratively in every neighborhood with mosques and masjids to communicate the new plans for Adhan to local community leaders and stakeholders. They will work to ensure that any sound device used to broadcast an Adhan is set at appropriate decibel levels and in accordance with the rules of the noise code within the city’s administrative code.

Denial of Teacher's Religious Exemption from Covid Vaccine Mandate Is Upheld

In In re Matyas v. Board of Education of the City School District of the City of New York, (NY County Sup. Ct., July 11, 2023), a New York trial court rejected a teacher's challenge to the Department of Education's denial of an exemption from its Covid vaccine mandate. The court said in part:

[P]etitioner submitted, to the DOE, a request for a reasonable accommodation exempting her from the COVID-19 vaccination requirement on the ground that her childhood Roman Catholic faith, and what appears to have been her recent conversion to an unspecified sect of Evangelical Protestant Christianity, made it impossible for her to take any type of vaccination. She cited several passages from both the Old and New Testaments of the Bible... most which discuss one’s faith and trust in the almighty, and the last of which proscribes the mixing of human blood with the mixing of the blood of sacrificed animals. . As the petitioner phrased it, although she teaches biology, 

“[t]here is only one GOD. To trust that a vaccine will protect us more than God would, is to have a false idol. I cannot betray my faith and GOD and my conscious. I will not follow any false idols in search of salvation I know that my salvation is secure in my faith in GOD.”...

With respect to ... her First Amendment right to the free exercise of religion and discrimination in employment on the basis of religion, the petitioner has not established either that the City’s vaccine mandate was premised upon religion, as she has not demonstrated that her conclusions about the alleged proscription of desecrating the human body with vaccinations is an established Catholic or Evangelical doctrine, or shown that they were more than her personal interpretation of her obligations as a practicing Catholic or Evangelical....

3 Courts Rule on Claims for Religious Exemptions from Covid Vaccine Mandates

Last week, federal district courts in three states handed down decisions in cases in which a former employee was suing his or her employer for refusing to provide them with a religious exemption from the employer's Covid vaccine mandate.

In Crocker v. Austin, (WD LA, June 22, 2023) a Louisiana federal district court dismissed as moot a suit for injunctive relief brought by seven military service members who faced involuntary separation from the Air Force when they filed suit. However, in January 2023 the military rescinded the vaccine mandate and updated personnel records to remove any adverse actions associated with the denial of requested exemptions. Any remaining suit for damages falls under the Tucker Act and must be brought in the Court of Federal Claims.

In Leek v. Lehigh Valley Health Network, (ED PA, June 23, 2023), a Pennsylvania federal district court refused to dismiss a Title VII religious discrimination claim filed by a nurse who was denied religious exemptions from a hospital's requirement to receive Covid and influenza vaccines. The hospital claimed that the nurse's objections were not religious in nature. The court held that the nurse's belief that chemical injections may make her body impure in the eyes of the Lord, and her objections to some vaccines because they were developed using aborted fetal cells, are both religious objections.  The fact that some of her other objections were more medical or political did not negate the presence of religious objections.

In Algarin v. NYC Health + Hospitals Corp., (SD NY, June 23, 2023), a New York federal district court dismissed claims by an Internet technology professional at a health care facility that denial of his request for a religious exemption from the state's Covid vaccine mandate violated Title VII and the New York State and City Human Rights Laws. The court disagreed, holding that requiring the employer to violate a state rule would place an undue burden on the employer. The court also rejected plaintiff's 1st Amendment free exercise claim, finding that the vaccine mandate was a neutral law of general applicability.

Nurse Denied Religious Exemption From Vaccine Mandate Loses Title VII and Free Exercise Challenges

In Riley v. New York City Health and Hospitals Corp., (SD NY, Feb. 17, 2023), a New York federal district court dismissed without prejudice a suit by a Christian nurse in a hospital's surgical unit who claimed that denying her a religious exemption from the hospital's COVID vaccine mandate violated her rights under Title VII and the Free Exercise Clause. The court said in part:

Title VII cannot be used to require employers to break the law..... When the defendant implemented its vaccine mandate, [New York State Department of Health Rule] Section 2.61, a binding state regulation, required the defendant to “continuously require personnel” like the plaintiff “to be fully vaccinated against COVID-19, absent receipt of” a medical exemption. 10 N.Y.C.C.R. § 2.61(c)....

The plaintiff does not argue that the defendant’s vaccine mandate was not generally applicable. She argues only that the mandate “was not neutral and was and is hostile to the religious beliefs of the plaintiff, as it presupposed the illegitimacy of her religious beliefs and practices.”... An enactment violates the neutrality principle if it “explicitly singles out a religious practice” or “targets religious conduct for distinctive treatment.”... The plaintiff pleads no facts suggesting that the defendant’s mandate is guilty of either. To the extent the plaintiff alleges that the mandate’s lack of a religious exception alone makes it non-neutral, We The Patriots forecloses that argument. See 17 F.4th at 282....

Student Loses Free Exercise Challenge To University's COVID Vaccine Mandate

In Collins v. City University of New York, (SD NY, Feb. 8, 2023), a New York federal district court rejected a student's claims that his free exercise, equal protection and procedural due process rights were violated when he was denied a religious exemption from City University's COVID vaccine mandate.  In rejecting the student's free exercise claim, the court said in part:

As established by recent Second Circuit case law, the Vaccination Policy is neutral, generally applicable, and easily passes rational basis review.

2nd Circuit Hears Arguments on Religious Objections to NYC Employee Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals heard oral arguments yesterday in New Yorkers For Religious Liberty, Inc. v. The City of New York. (Mp3 audio of full oral arguments.) At issue are 1st and 14th Amendment challenges to New York City's public employee COVID vaccine mandate by employees with religious objections to the vaccines. (See prior posting). ADF has links to some of the pleadings filed in the case.

Court Says Idiosyncratic Personal Religious Beliefs May Not Support Religious Accommodation

In In re Moscatelli v. New York City Police Department, (NY Cnty. Sup. Ct., Dec. 22, 2022), a New York trial court annulled an administrative determination that denied a New York City Detective a religious exemption from the city's COVID vaccine mandate. The court held that the administrative determination was arbitrary and capricious, saying that "the NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action." The court went on, however, to say:

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed and explained by the Panel or the NYPD EEOD in the challenged decisions, those contentions would have constituted a proper basis for an exemption. That would have required a forthright engagement by those agencies with the religious contentions and arguments raised by the petitioner.... It would also have required some actual inquiry ... into the petitioner’s prior behavior concerning vaccines and medications. Had those agencies taken that approach, their determinations might have survived judicial scrutiny, as the petitioner provided scanty proof that the rejection of vaccinations or medications that have been developed, improved, or tested using fetal stem cells is an accepted tenet of Catholic doctrine, as opposed to a personal interpretation of doctrine by a lay person or even a few members of the clergy....

[T]he petitioner ... has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic....  Nor has he demonstrated that he had previously declined to be treated with [other] drugs ... which were either developed, improved, or recently tested by their manufacturers for adverse side effects using stem cells from aborted fetuses.

Emergency Injunction Against NYC City-Worker Vaccine Mandates Sought from Supreme Court

An Emergency Application for an Injunction Pending Appellate Review (full text) was filed with the U.S. Supreme Court yesterday in New Yorkers for Religious Liberty v. City of New York.  The petition seeks an injunction against enforcing New York City's Covid vaccine mandates for city workers against those with religious objections to the vaccine. Petitioners argue in part:

Because the City’s Mandates provide for individualized exemptions, play denominational favorites, grant the government substantial discretion, and treat religious objectors less favorably than secular (e.g., economic) objectors, the Mandates violate Applicants’ free-exercise rights.

ADF issued a press release announcing the filing of the application.

Brooklyn Yeshiva Will Pay Additional $5 Million In Penalties for Lunch Program Fraud

The U.S. Attorney's Office for the Eastern District of New York announced on Monday that Central United Talmudic Academy, a yeshiva in Brooklyn, has entered a three-year deferred prosecution agreement under which it has agreed to pay $5 million in penalties for conspiracy to commit wire fraud.  This is in addition to $3 million in restitution it has already paid. The Announcement describes "several overlapping frauds" to which CUTA has admitted, saying in part:

According to admissions in the statement of facts and other public documents, between 2014 and 2016, CUTA received more than $3.2 million in reimbursement for a meal program that purported to feed students of the yeshiva.  The program was almost entirely fictitious.  Rather than feed its children, the School diverted the funding, including to subsidize parties for adults. To commit the crime, the School fabricated records and made dozens of sworn misrepresentations to government agencies.

During the investigation into the fictitious meal program, the investigative team uncovered evidence of other fraudulent conduct by the School and its employees.  In addition to the program fraud noted above, this included various payroll practices that enabled the School’s employees to commit benefit and tax fraud....

By underrepresenting its employees’ income, CUTA enabled its employees to obtain various public benefits—including health care and childcare—that would not have been available if the employees honestly reported their income.

Officials of the school have previously pleaded guilty and been sentenced for fraud. The Announcement was also posted in Yiddish on the website of the U.S. Attorney's Office. Gothamist reports on the agreement.

Today Is Diwali; NYC Schools To Recognize It

Today is Diwali, the Hindu Festival of Lights which is also celebrated by some Jains, Sikhs and Buddhists. As reported by CNN, last Thursday New York City Mayor Eric Adams announced that starting next year, Diwali will be a public school holiday in New York City.  In order to keep the same number of school days in the academic year, state legislation has been introduced to allow New York City public schools to no longer celebrate Anniversary Day as a holiday. Anniversary Day (also known as Brooklyn-Queens Day) is variously described as celebrating the opening of the first Protestant Sunday School on Long Island or the founding of the Brooklyn Sunday School Union in 1816.

UPDATE: Here is President Biden's statement sending greetings for a happy Diwali.

NYC Vaccine Mandate Upheld

In Kane v. DeBlasio, (SD NY, Aug. 26, 2022), a New York federal district court rejected a challenge by New York City teachers, administrators and staff to New York City's public employee COVID vaccine mandate. They claimed the mandate violates their 1st and 14th amendment rights.  Discussing plaintiffs' free exercise claim, the court said in part:

The Second Circuit has already found that “[t]he Vaccine Mandate, in all its iterations, is neutral and generally applicable.”...

Ignoring the fact that the pandemic has claimed the lives of more than a million people in the United States, plaintiffs take the bold position that the Mandate has the “express purpose of inflicting special disability against minority religious viewpoints,” ... rather than its obvious and explicit goals to ... “potentially save lives, protect public health, and promote public safety.”...

Plaintiffs’ arguments that the Vaccine Mandate is not generally applicable again rely on arguments that the Second Circuit already rejected. 

Subsidized Housing Family Size Limit Did Not Violate Rights Of Orthodox Jewish Family

In Katz v. New York City Housing Preservation & Development, (SD NY, Aug. 8, 2022), a New York federal district court rejected Free Exercise and Affordable Housing Act claims brought by an Orthodox Jewish family whose applications for an affordable housing unit were denied  because their family size exceeded the apartments' maximum occupancy limit. Plaintiffs claim that their religious beliefs require them to have a large family.  As to the Free Exercise claim, the court said in part:

The Katzes do not claim that Defendants’ policies disfavor acts only religious in nature or that Defendants otherwise showed overt animus in denying their applications or later appeals. Nor do they claim that the maximum occupancy limit is not generally applicable. They thus ask the Court to apply rational-basis review to analyze the occupancy restrictions....

Here, the City has a legitimate state interest in preventing overcrowding in subsidized apartment units. And limiting a unit’s occupancy to two people per bedroom is rationally related to that legitimate interest by setting a numerical cap on each apartment....

Rejecting the Fair Housing Act claim, the court said in part:

Here, the Katzes have failed to plausibly allege that the policies have created a disproportionate effect on Orthodox Jews because they never allege that the occupancy limits have or will result in an underrepresentation of Orthodox Jews in affordable housing lotteries in New York City. That is because at no point does the Complaint compare Orthodox Jews applying for New York City affordable housing lotteries to similarly situated individuals.

NYC Teachers, Seeking Religious Exemptions, Resubmit Injunction Request To Justice Gorsuch

As previously reported, last week in Keil v. City of New York, Justice Sotomayor Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. Invoking Supreme Court Rule 22.4, the teachers on Feb. 14 requested that their petition be resubmitted, this time to Justice Gorsuch. (Full text  of request letter). Justice Gorsuch has referred the request to the full Court for their March 4 conference. The Second Circuit which refused to grant an injunction pending appeal has already scheduled a hearing on the merits of the teachers' claims for Feb. 24.  CNN reports on these developments. [Thanks to Scott Mange for the lead.]

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.

 

NY City Council Member Loses Claim This His Expulsion Was Because Of Hostility To His Christian Anti-LGBT Views

In King v. City of New York, (SD NY, Jan. 14, 2022), a New York federal district court rejected a group of 1st and 14th Amendment, as well as state law, challenges by former New York City Council member Andy King to his expulsion from City Council.  He was removed from Council because of alleged ethical misconduct. However King claims that the true motivation of the Council members who voted to expel him was their dissatisfaction with his routine opposition to pro-LGBT issues stemming from his Christian beliefs that sex between members of the same sex is a sin. The court rejected both his free speech and free exercise claims.  Discussing King's free exercise claims, the court said in part:

In support of his Free Exercise claim, King relies on the same factual allegations as those that buttress his Free Speech claim-- namely, Defendants' hostility toward his political views on LGBT issues. But these allegations do not raise the plausible inference that Defendants acted out of hostility against King on the basis of his Christian faith.

New York City Educators' COVID Mandate Falters On Religious Exemption Procedures

In Kane v. De Blasio, (2d Cir., Nov. 28, 2021), the U.S. 2nd Circuit Court of Appeals held that New York City's COVID vaccine mandate for school teachers and administrators is not facially unconstitutional under the 1st Amendment because it is a neutral law of general applicability. However the court held that the process-- determined by an arbitrator-- for deciding whether a person is entitled to a religious exemption is unconstitutional:

The Accommodation Standards allowed employees to request a religious accommodation by submitting a request that is “documented in writing by a religious official (e.g., clergy).”... Requests “shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature.”...

Denying an individual a religious accommodation based on someone else’s publicly expressed religious views — even the leader of her faith —runs afoul of the Supreme Court’s teaching that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.”

Bloomberg Law reports on the decision.