Court Upholds California's Repeal of Personal Belief Exemption from School Vaccination Mandate

 In Royce v. Pan, (SD CA, March 17, 2025), a California federal district court rejected a free exercise challenge to California's removal of the "personal belief" exemption from the state's compulsory school vaccination requirements. The court rejected arguments that the repeal of the exemption evidenced hostility to religion and that the law is not generally applicable because it exempts comparable secular activity.  The court said in part:

First, SB 277 did not specifically repeal a religious exemption.  Rather, it repealed a general personal belief exemption that was secular and neutral on its face.  Repeal of a secular exemption does not demonstrate hostility towards any religion or religious practice.  Second, even if SB 277 could be characterized as repealing a religious exemption, repealing a prior religious exemption is not hostile towards religion per se....

Plaintiffs argue that SB 277 is substantially underinclusive and treats secular activity more favorably than religious exercise by eliminating exemptions for religious reasons but permitting secular exemptions that undermine the State’s interest in a similar way.....  In particular, Plaintiffs highlight medical exemptions, exemptions for home schooled children and children enrolled in independent student programs, exemptions for students who qualify for IEPs, exemptions for students over 18 years of age, and conditional enrollment for migrant, homeless, foster, and military children.....

The court concluded that none of these exemptions are comparable to a religious exemption and that rational basis review applies because the law is neutral and generally applicable.

2nd Circuit Rejects Amish Challenge to Removal of Religious Exemption from School Vaccine Requirements

In Miller v. McDonald, (2d Cir., March 3, 2025), the U.S. 2nd Circuit Court of Appeals held that New York state's removal of a religious belief exemption from its school immunization law did not violate the 1st Amendment free exercise rights of Amish parents or Amish schools. The court held that the public health law is neutral on its face and its legislative history does not reveal an anti-religious bias. It also rejected plaintiffs' contention that the law is not generally applicable, saying in part:

Plaintiffs contend that exempting students for medical reasons treats comparable secular conduct more favorably than religious beliefs.....

Repealing the religious exemption decreases “to the greatest extent medically possible” the number of unvaccinated students and thus the risk of disease; maintaining the medical exemption allows “the small proportion of students” who medically “cannot be vaccinated” to avoid the health consequences that “taking a particular vaccine would inflict.” ...  Exempting religious objectors, however, detracts from that interest.  Religious exemptions increase “the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike.”...   

In sum, Plaintiffs have failed to allege that § 2164 is anything but neutral and generally applicable.  The district court therefore did not err in applying rational basis review. As noted, Plaintiffs have conceded that the law satisfies rational basis review....

[Plaintiffs] claim that the school immunization law mandates two impossible options: inject their children with vaccines, forcing conduct against their religious beliefs, or forego educating their children in a group setting, requiring them to sacrifice a central religious practice.  True, Plaintiffs have shown that § 2164 burdens their religious beliefs and practices; but those burdens are not equivalent to the existential threat the Amish faced in Yoder.  Unlike in Yoder, compliance with § 2164 would not forcibly remove Amish children from their community at the expense of the Amish faith or the Amish way of life. 

Moreover, Yoder’s holding is limited by the state’s interest in protecting public health....

Kansas Court Says Statute Sets Low Threshold for Religious Exemption from Covid Vaccine Mandate

In St. Luke's Health System, Inc. v. State of Kansas ex rel. Schultz, (KS App., Jan. 17, 2025), a Kansas state appeals court held that under a Kansas statute, an employee's request for a religious exemption from an employer's Covid vaccine mandate does not require as much proof as the trial court in the case demanded.  The appeals court said in part:

The statute does not require the employee to articulate a basis for their sincerely held religious beliefs, nor does it require the employee to provide written evidence of those religious beliefs, as the district court held Glean was required to do. It only requires the employee to explain in a written statement that complying with a COVID-19 vaccine mandate would violate their sincerely held religious beliefs, which Glean did. K.S.A. 2023 Supp. 44-663(a). And, in fact, the statute specifies:  "An employer shall grant an exemption requested in accordance with this section based on sincerely held religious beliefs without inquiring into the sincerity of the request." K.S.A. 2023 Supp. 44-663(b)....

Not only did she [employee Sheryl Glean] explain that her refusal to get the COVID-19 vaccine is based on her religious views—as in she believes the vaccine may cause harm to her body—she clarified the religious basis for her concern (or why she believes getting the vaccine would be wrong) when she said since she became a Christian she believes the Bible tells her that her body is holy. See 1 Corinthians 6:19-20..... Glean further evidenced the religiosity of her beliefs when she stated that she had discussed her concerns about getting the vaccine with the pastor from her church. Glean's invocation of both the Bible and her pastor as sources of guidance in this matter evidence the religiosity of her beliefs about the COVID-19 vaccine.

1st Circuit Accepts Employer's Undue Hardship Defense for Denying Religious Exemption from Covid Vaccination

In Rodrique v. Hearst Communications, Inc., (1st Cir., Jan. 17, 2025), the U.S. 1st Circuit Court of Appeals upheld the dismissal of a Title VII lawsuit brought by a TV news photographer who asserted religious objections to his employer's Covid vaccine mandate. The employer refused to provide an accommodation, asserting that it would impose an undue hardship. The district court dismissed plaintiff's claim on the ground that his objection was not religious but instead reflected "a personal medical judgment about the necessity of COVID-19 vaccination" expressed in religious language. On appeal, the 1st Circuit held that it did not have to reach the issue of whether plaintiff's objections were religious because defendant had adequately carried its undue hardship defense. The court said in part:

Rodrique contends that Hearst has not proffered admissible evidence showing that the vaccine actually protects against the transmission of COVID-19.  As Rodrique frames the issue, if the vaccine does not reduce the likelihood of COVID-19 transmission -- as opposed to merely mitigating symptoms, for example -- then Hearst suffers no undue hardship by granting him an exemption.  And in Rodrique's view, only expert testimony can support this conclusion.,,,  

,,, [W]e disagree with Rodrique that Hearst did not provide legally sufficient evidence....  Because ... Hearst relied "on the objective, scientific information available to [it]," with particular attention to "the views of public health authorities," we hold that it acted reasonably when it determined that vaccinated employees are less likely to transmit COVID-19 than unvaccinated employees.

Business Insurance reports on the decision.

4th Circuit: Covid Vaccine Religious Accommodation Suit Should Not Have Been Dismissed

 In Barnett v. INOVA Health Care Services, (4th Cir., Jan. 7, 2025), the U.S. 4th Circuit Court of Appeals reversed the dismissal of Title VII and state law claims by a former registered nurse who was denied a religious exemption or accommodation from her employer's Covid vaccine mandate. The court said in part:

Barnett has sufficiently alleged her beliefs are religious in nature.  Specifically, Barnett alleged, amongst other things:  (1) “it would be sinful for her to engage with a product such as the vaccination after having been instructed by God to abstain from it”; (2) her “religious reasons for declining the covid vaccinations. . . were based on her ‘study and understanding of the Bible and personally directed by the true and living God’”; and (3) receiving the vaccine would be sinning against her body, which is a temple of God, and against God himself....  At this stage, these allegations are sufficient to show that Barnett’s “belief is an essential part of a religious faith” that “must be given great weight[,]” ... and are plausibly connected with her refusal to receive the COVID-19 vaccine.

4th Circuit: Abstention Doctrine Does Not Apply in Challenge to No Religious Exemption in Vaccination Law

In West Virginia Parents for Religious Freedom v. Christiansen, (4th Cir., Dec. 31, 2024), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a West Virginia federal district court erred in applying the Pullman abstention doctrine in a suit challenging the constitutionality of West Virginia's vaccine mandate for school children. Plaintiffs contended that the absence of a religious exemption in the mandate violates the 1st Amendment's Free Exercise Clause. The majority said in part:

Pullman abstention is typically reserved for a situation where the state law being presented is unclear and could be interpreted in a way that avoids the federal constitutional issue....  And Pullman abstention is not applicable if the state law is not subject to an interpretation that would render unnecessary the adjudication of a federal constitutional question....

 ... [T]he only state law presented for decision here is the Vaccination Mandate.  On the other hand, the only state law identified as being unclear is the recently adopted [Equal Protection for Religion Act].  And the Plaintiffs are not challenging the Vaccination Mandate under EPRA.  Rather, the Plaintiffs pursue their Free Exercise claim solely under the Free Exercise Clause.... 

... “[A]bstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.”

Judge Berner filed a dissenting opinion, saying in part:

In several cases ..., this court and the Supreme Court have found abstention proper because the challenged law’s relationship with a different state law or constitutional provision was unsettled....

Because the relationship between the Vaccination Mandate and the EPRA is unsettled, this case satisfies the first Pullman requirement. 

This case also meets the second Pullman precondition.... There is no requirement that the resolution of the state law issue necessarily moot the federal constitutional issue. Instead, it is enough that questions of state law “may dispose of the case and avoid the need for deciding the constitutional question.”

EEOC Sues Employer for Refusal to Grant Religious Accommodation to Covid Vaccine Mandate

The EEOC announced yesterday that it had filed a Title VII lawsuit against the North Carolina-based Rex Healthcare, Inc. for refusing to grant a religious accommodation to an employee who objected to receiving the Covid vaccination.  According to the EEOC:

[I]n 2021 Rex Healthcare implemented a policy mandating that all employees receive a COVID-19 vaccination unless they were granted an exemption because of their religious beliefs or a disability. The charging party in the EEOC’s suit, who worked remotely, requested a religious exemption in accordance with the policy. Even though the employee had previously been granted an exemption from being required to take the flu vaccination based on her religious beliefs, the request for an exemption from the COVID-19 vaccination was denied.

The employee submitted multiple follow up requests with additional explanations of her religious beliefs in support of her request. Despite the employee articulating a sincerely held religious belief, Rex Healthcare denied the employee’s accommodation requests and subsequently fired her for failing to comply with the company’s COVID-19 vaccine mandate.

Hospital Employee's Vaccine Objections Were Religious

In Lavelle-Hayden v. Employment Dept., (OR App., Dec. 18, 2024), an Oregon state appellate court held that a hospital respiratory therapist who was denied a religious exemption from the hospital's Covid vaccine requirement should receive unemployment benefits. It held that the state Employment Appeals Board's (EAB) conclusion that the employee's objection to the Covid vaccine was secular or personal in nature, rather than religious, was not supported by substantial evidence. The court said in part:

First, the EAB appears to have overlooked the Supreme Court’s injunction that tribunals ordinarily must refrain from assessing the plausibility of a claim of religious belief, and to have read the record with unreasonable parsimony in view of that standard....

Second, the EAB drew unreasonable inferences from the fact that claimant’s church declined to provide her a letter in support of her exemption request. The EAB inferred that “the fact that claimant’s own religious leader refused to provide a letter weighs to some extent against finding that claimant’s opposition to taking the vaccine was rooted in religion.” The EAB also inferred that the fact “that the leader told claimant it might be ‘too political to get involved’ supports an inference that when claimant asked for the letter, the religious leader regarded claimant’s objection to receiving a vaccine to be based on her political beliefs, not religion.”... But that reasoning ... presupposes that one’s religious beliefs and political beliefs are necessarily mutually exclusive....

... [T]here is no basis on which to sustain the denial of benefits that is consistent with the evidence and Free Exercise Clause.

SNAP Work Requirement Did Not Violate Free Exercise Rights of Plaintiff's Adult Children

In Light v. Missouri Department of Social Services, (WD MO, Dec. 12, 2024), a Missouri federal district court dismissed a suit challenging the removal of plaintiff's four adult children from the SNAP (food stamp) program because they failed to comply the requirement to register for work and accept suitable employment offers.  According to the court:

Plaintiff alleges that participation of her four adult children in the SNAP work program is against their sincerely held beliefs under the Holy Bible New Testament KJV. Specifically, Plaintiff alleges that the work registration and training requirements would cause her children to give up their time to an employer placing them under ownership, and be placed in a position of a servant....

Plaintiff does not cite, and the Court has not found, any indication where the SNAP work and training requirements are not generally applicable. 

If a law is neutral and generally applicable courts will apply a rational basis review.... Courts uphold a valid and neutral law of general applicability if it is rationally related to a legitimate governmental purpose even if there is an incidental effect on religious belief.... SNAP was established to raise levels of nutrition among low-income households. To be eligible for the program both households and individuals had to adhere to certain eligibility requirements. This is a rationally related law to a legitimate government purpose of raising levels of nutrition among low-income households....

Supreme Court Grants Review of Wisconsin's Denial of Unemployment Comp Exemption for Catholic Charities

Yesterday, the U.S. Supreme Court granted review in Catholic Charities Bureau, Inc. v. Wisconsin Labor Review Commission, (Docket No. 24-154, certiorari granted 12/13/2024). (Order List). In the case, the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law. (See prior posting.) Catholic Charities' petition for certiorari asks the Supreme Court to decide if Wisconsin violated the 1st Amendment's religion clauses when it held that Catholic Charities activities are primarily charitable and secular so that the statutory religious organization exemption is not available to it. The SCOTUSblog case page has links to the pleadings and briefs filed in the case.

Court Examines Sincerity and Religiosity of Vaccine Objections

Stynchula v. Inova Health Care Services, (ED VA, Nov. 19, 2024), is another of the dozens of cases working their way through the courts in which employees have asserted religious objections to Covid vaccine mandates, and their employers have refused to accommodate their objections on the ground that the employees' beliefs were either not religious or not sincerely held. Here the court examines objections asserted by two employees (Netko and Stynchula) and says in part:

Inova argues that Netko’s claim fails because his requests for religious exemptions from the COVID vaccine requirement did not assert beliefs that he sincerely held. The Court agrees....

... Netko’s practice with respect to medicines and vaccines developed using fetal cell lines “[was] inconsistent. He puts some medicines in his body, but not others” and thus he has severely contradicted his assertion that he could not receive a COVID-19 vaccine without compromising his religious beliefs.....  

Netko rejects this conclusion in several ways, none of which is compelling. He argues that Inova cannot show that he subjectively knew of the involvement of fetal cells in the medications and vaccinations that he received, when he received them, and because “sincerity is a subjective question pertaining to the party’s mental state,” if Netko received them ignorant of the fact of fetal cell involvement, “that is not behavior that is markedly inconsistent with his stated beliefs.” ... But there is no rule that a subjective mental state cannot be proven by objective circumstantial evidence....

Netko also contends that his failure to consistently raise fetal cell objections is of no consequence because “a finding of sincerity does not require perfect adherence to beliefs expressed by the [plaintiff], and even the most sincere practitioner may stray from time to time.”... But for a self-declared life-long adherent of a belief, like Netko, such a principle does not mean that sincerity is evident when he strays one hundred percent of the time until one day, he ostensibly decides to outwardly manifest his belief.

... Netko’s assertion that his religion prevented him from taking such vaccines “appears to have been newly adopted only in response to the demand that [he] take the COVID-19 vaccine,”... which is consistent with his general hostility to authority with respect to the COVID pandemic as a whole....

Inova asserts that Stynchula’s claim must fail because her vaccine exemption requests reflect beliefs that are secular, rather than religious, in nature....

Stynchula has not presented facts that show her vaccine-related beliefs are religious....   She states that her fetal cell line objections are grounded in her Catholic upbringing, whereas she joined the Church of Scientology in 2001.... And, the connection between her Scientological beliefs and her vaccination objections is undeveloped except to the extent that she objected to COVID vaccinations as “foreign substances” on the basis of the “axiom” of “Self Determinism” ...  and the idea that “the spirit alone may save or heal the body”... But these simply “seek[] a religious objection to any requirement with which [Stynchula] disagrees” and do not concern religious beliefs.... They are, rather, “isolated moral teaching[s]” in lieu of a “comprehensive system of beliefs about fundamental or ultimate matters.”...

Relatedly, Stynchula’s statements and conduct “only reinforce[] that her opposition stems from her medical beliefs.” ... She believes that her “body is a gift from God” and objects to vaccinations because “[she] do[es] not believe in injecting foreign substances unless there is a therapeutic reason”... and because they would “impact [her] relationship with God” and “would be a sin, as it goes against [her] deeply felt convictions and the answers [she] ha[s] received in prayer”....

... Stynchula does not review medication and vaccine information with an eye towards religious mandates or prohibitions. That is, her search is not to ensure that a specific substance is not present in her medications, or that certain religious procedures have been followed. She simply engages in a cost-benefit analysis of vaccines and medications rooted in her personal concerns over their safety and efficacy. Attaching a gloss of “general moral commandment[s],” such as beliefs in personal liberty or that the body is a temple, to these concerns cannot alone render them religious.

Jury Questions Remain in Suit by Casino Worker Fired for Refusing Covid Vaccine

In Brown v. MGM Grand Casino, ( ED MI, Nov. 18, 2024), a Michigan federal district court refused to grant summary judgment for either party in a suit by a former warehouse manager for MGM Grand Casino who was fired for refusing to comply with his employer's Covid vaccine mandate. Plaintiff, an Orthodox Apostolic Christian, had applied for a religious accommodation. It was refused. According to the court:

Defendant expressed doubt about the sincerity of Plaintiff’s religious belief.... It also expressed doubt about whether Plaintiff’s belief is religious in nature or purely secular.... Nevertheless, Defendant determined that accommodating Plaintiff would impose an undue burden on Defendant’s operations and denied his request on those grounds....

Defendant cites many non-controlling cases from other Circuits for the proposition that Plaintiff’s objection to the vaccination policy based on his opposition to abortion fails to demonstrate a religious belief, because he does not tie it to a wider religious observance, practice, or outlook....However, the Court is not persuaded by the underlying logic of these cases. Of course, a plaintiff claiming a failure to accommodate is required to demonstrate a connection between their belief and some “religious principle” they follow.... But courts “may not question the veracity of one’s religious beliefs.” ... Thus, a plaintiff need not cite specific tenets of his religion that forbid the contested employment policy or explain how those tenets forbid it. ...

While Plaintiff has demonstrated that his beliefs are religious, it is another question whether his beliefs are sincere....  [T]he factfinder need not take a plaintiff at his word.” ... Defendant has raised several reasons to question Plaintiff’s sincerity, such as the fact that his religious reasoning was not consistent throughout his accommodation request process or in his deposition, or the fact that he described medical reasons for wanting to avoid the vaccine....

Therefore, the Court concludes that material questions of fact remain as to whether Plaintiff has a sincerely held religious belief.

The court also concluded that the employer's undue hardship defense posed a jury question since, among other things, large numbers of workers under collective bargaining agreements were not vaccinated.

2nd Circuit Hears Oral Arguments from Amish Seeking Vaccination Exemptions

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Miller v. McDonald. In the case, a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny. (See prior posting.) Courthouse News Service reports on the oral arguments.

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.

Court Asks Parties for More Information on Whether Vaccine Mandate Was Generally Applicable

In Rodriguez v. Santa Clara Valley Transportation Authority, (ND CA, Nov. 12, 2024), a California federal district court refused to dismiss a suit brought by employees of a public transportation provider who were denied religious exemptions from their employer's Covid vaccine mandate. The court ordered the parties to submit supplemental briefs on whether or not the vaccine mandate exemption process was generally applicable in order to determine whether to apply strict scrutiny in evaluating plaintiffs' Free Exercise claim. The court said in part:

Although the VTA’s exemption review process did not involve the entirely unfettered discretion that the Supreme Court rejected in Fulton, a reasonable factfinder could conclude that this process contained enough individualized discretion to “permit discriminatory treatment of religion or religiously motivated conduct.” ...

Conversely, a reasonable factfinder could conclude that the exemption process was “tied directly to limited, particularized, business-related, objective criteria” such that it was generally applicable.....  Unlike Fulton, no individual here exercised “sole discretion.”....  Instead, the committee rendered decisions as a group based on set criteria.... A reasonable jury could find that the VTA committee exercised a degree of discretion that preserved the policy’s general applicability.

IT Specialist Awarded $12.69M For Denied Religious Exemption from Vaccine Mandate

 A Michigan federal district court jury last week awarded damages of $12,690,000 to an IT specialist who was fired from her position after she refused for religious reasons to comply with her employer's Covid vaccine mandate. In Domski v. Blue Cross Blue Shield of Michigan, (ED MI, Nov. 8, 2024) (Jury Form), plaintiff contended that her Catholic religious beliefs precluded her from complying because of the use of fetal cells in the development of the Covid vaccines. Plaintiff had been employed by Blue Cross Blue Shield for 38 years. Law Enforcement Today and WWJ Radio report on the jury verdict.

Hospital Employee Who Refused Covid Nasal Swab Testing Is Entitled to Unemployment Benefits

 In St. Luke's University Hospital v. Unemployment Compensation Board of Review, (PA Commonw. Court, Nov. 1, 2024), a Pennsylvania state appellate court upheld a decision by the Pennsylvania Unemployment Compensation Board of Review that a former employee of plaintiff hospital was entitled to unemployment benefits because her objections to Covid testing, which led to her firing, were religious. The hospital required all its employees to either obtain a Covid vaccination or, if they were granted a religious exemption, to undergo weekly nasal swab Covid testing. Employee Christine Puello objected to swab testing, contending in part:

Inserting a nasal swab with contaminants into my body violates my conscience and my sincerely held religious beliefs as I have previously described in my religious exemptions.  I am willing to submit my saliva under observation for weekly COVID[-19] testing which eliminates any invasiveness and preserves my dignity of one less object/contaminant entering my body.

The court concluded:

While Claimant did cite safety concerns as a secondary reason for refusing nasal swab testing, the record makes clear that her primary objection was religious and not secular in nature.  The Board credited Claimant’s testimony that this method of testing was prohibited by the tenets of her religion and determined she had good cause to refuse it.

6th Circuit Finds That Employee's Objections to Covid Testing Were Not Religious

 In DeVore v. University of Kentucky Board of Trustees, (6th Cir., Oct. 11, 2024), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a lawsuit by a former department manager at the University of Kentucky who was denied a religious accommodation that would exempt her from the University's policy that required weekly testing of employees who were not vaccinated against Covid. Plaintiff filed a suit claiming religious discrimination in violation of Title VII. She alleged in part that the University's policy was designed to coerce her to get tested. the court said:

Such coercion, she explained, was “wrong” because “[t]rying to manipulate somebody into doing something to attain a result that you want by holding something over them” is “not right behavior.”...

DeVore drew no connection between her fairness conclusion and any “religious principle” she follows, leaving it simply to reflect her “personal moral code.”... DeVore’s “subjective evaluation” of the Policy against this rubric of “secular values” does not establish a religious conflict with the Policy.

Air Force Officers' Suit Over Vaccine Mandate Is Now Moot

Still working their way through the courts are dozens of cases brought by employees or former employees who were denied religious exemptions from Covid vaccine mandates. One of the more interesting is Air Force Officer v. Austin, (MD GA, Oct. 11, 2024), a class action suit on behalf of Air Force officers who were denied religious exemptions from the military's Covid vaccine mandate. The mandate has been rescinded by the military after Congress ordered it to do so. At issue in the case is whether the lawsuit is now moot. Plaintiffs made two basic arguments against mootness. One is that the government has not shown that the mandate will not be reimposed at some later time. The second is that plaintiffs are seeking an injunction that applies to exemptions from all military vaccine mandates, not just Covid vaccine requirements.  The court rejected both claims. The court said in part:

Understandably so, Plaintiffs and Defendants just disagree whether there is no reasonable expectation that “the same kind of COVID-19 vaccination requirement will be reinstated,” but it can’t be overlooked that “for almost two years now” there hasn’t been any indication that the COVID-19 vaccination mandates will be reinstated. In this Court’s opinion, that’s quite persuasive....

9th Circuit: Title IX's Religious Exemption Does Not Violate Establishment Clause

In Hunter v. U.S. Department of Education, (9th Cir., Aug. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the exemption available to religious educational institutions from Title IX's ban on sex discrimination (including sexual orientation and gender identity) does not violate the Establishment Clause or equal protection guaranties. The court said in part:

Any practice that was “accepted by the Framers and has withstood the critical scrutiny of time and political change” does not violate the Establishment Clause....

Given the dearth of historical equivalents, ... tax exemptions are the most analogous case to Title IX’s statutory exemption.... Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.

Having considered the history of religious exemptions at or near the Founding, the history and tradition test requires us to look next to the “uninterrupted practice” of a law in our nation’s traditions....  The Department identifies a relevant tradition in “modern legislative efforts to accommodate religious practice.” ...

... [T]here is no evidence in the record that the exemption here “was drafted with the explicit intention of including particular religious denominations and excluding others.”...

... Here, when a school claims an exemption, the Department must make two determinations—whether the school is controlled by a religious organization and whether Title IX would conflict with the religious tenets of the controlling organization....  The Department has ... “never rejected an educational institution’s assertion that it is controlled by a religious organization” and “never denied a religious exemption when a religious educational institution asserts a religious objection.” ...

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion....