From 2nd Circuit To Supreme Court, Fight Over NY's Removal Of Vaccine Religious Exemptions Continues

One day after hearing oral arguments in the cases challenging the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID, the U.S. 2nd Circuit Court of Appeals vacated temporary injunctions that had been issued in We the Patriots USA, Inc. v. Hochul  and Dr. A v. Hochul. In its October 29 Order (full text), the 2nd Circuit said that written opinions in the two cases would follow expeditiously. On Nov. 1, petitioners in We the Patriots case filed an Emergency Application (full text) with the U.S. Supreme Court seeking a new injunction while they file a petition for certiorari with the Court. Washington Examiner reports on the filing.

UPDATE: Here is the 2nd Circuit's 50-page opinion supporting its Order rejecting requests for a preliminary injunction. We the Patriots USA, Inc. v. Hochul, (2d Cir., Nov. 4, 2021).

UPDATE2: On Nov. 12, petitioners in the Dr. A case also filed an Emergency Application for an Injunction or in the alternative the granting of certiorari. (Full text of application).

Illinois Legislature Eliminates Religious Exemption For COVID Vaccine Employer Mandates

Last week, the Illinois legislature gave final passage to SB 1169 (full text) which amends the Illinois Health Care Right of Conscience Act to provide:

It is not a violation of this Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements ... intended to prevent contraction or transmission of COVID-19....

JD Supra explains:

The HCRCA has recently gained notoriety as a way for individuals to avoid complying with employer-mandated vaccine and testing policies and other COVID-19 safety measures. The HCRCA was enacted primarily to ensure that health care providers would not be compelled to participate in providing health care services that they find morally objectionable, such as performing abortions or dispensing contraceptives. However, the HCRCA is broadly worded.... 

While these protections are similar in some ways to Title VII in terms of requiring employers to accommodate employee religious beliefs ..., unlike Title VII, the HCRCA has no “undue hardship” exemption, even if granting an exception would create a significant risk to health and safety or prevent the employer from complying with federal or state regulations.

Supreme Court, 6-3, Denies Injunction Pending Appeal In Maine COVID Vaccination Case

The U.S. Supreme Court yesterday, by a vote of 6-3, in John Does 1-3 v. Mills, (Sup. Ct., Oct. 29, 2021), refused to enjoin enforcement of Maine's COVID vaccine mandate while a petition for Supreme Court review of the 1st Circuit's decision is pending. Healthcare workers sued objecting to the absence of religious exemptions from the mandate. The 1st Circuit in an Oct. 19 opinion (full text) refused a preliminary injunction against enforcement. The Supreme Court's Order was issued without an accompanying majority opinion. However, Justice Barrett, joined by Justice Kavanaugh, issued a short concurring opinion which appears to recognize the concern with the Court's increasing use of its "shadow docket" to render important decision.  Justice Barrett wrote in part:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” ... I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case.... Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument....

Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion dissenting from the denial of injunctive relief, saying in part:

Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury.... [H]ealthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

SCOTUS blog reports on the decision.

General Religious Objection Available Under Hawaii's COVID Mandate

In Pelekai v. State of Hawai'i, (D HI, Oct. 22, 2021), a Hawaii federal district court rejected various challenges to Hawaii state and county mandates that public employees be vaccinated against COVD or else submit to regular testing. One of plaintiffs' objections was to language rejecting any religious exemption based on opposition to "specific vaccinations". The court rejected that claim, saying in part:

The policy ... does not prohibit an employee from making the following objection: “I object to all vaccines that have been developed using aborted fetal cell lines on religious grounds.” The latter is not an objection to a specific vaccine, is not prohibited by Honolulu’s policy, and is the objection Plaintiffs themselves claim to want to make.

Class Action Challenges Denials Of Religious Exemptions From Federal COVID Vaccine Mandate

A class action lawsuit was filed yesterday in a Florida federal district court on behalf of military personnel, federal employees federal civilian contractors who have been denied a religious exemption from the federal government's COVID vaccine mandate. The complaint (full text) in Navy Seal I v. Biden, (MD FL, filed 10/15/2021) alleges in part:

Plaintiffs ... face a deadline under the Federal COVID-19 Vaccine Mandate to receive a COVID-19 vaccine that violates their sincerely held religious beliefs, and have been refused any religious exemption or accommodation....

Plaintiffs all have sincerely held religious beliefs, rooted in Scripture, that preclude them from complying with the Federal COVID-19 Vaccine Mandate because of the connections between the various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’ origination, production, development, testing, or other inputs. Plaintiffs also have sincerely held religious beliefs, rooted in Scripture, that their bodies are temples of the Holy Spirit and that they cannot place anything into their Temples without confirmation and conviction from the Holy Spirit.

The suit seeks a temporary restraining order and preliminary and permanent injunctions, claiming violations of the Free Exercise Clause, RFRA and the Federal Food, Drug and Cosmetic Act. Liberty Counsel issued a lengthy press release announcing the filing of the lawsuit.

Court Says Objections To Mask Requirement Were Not Sincerely Held Religious Beliefs

 In Geerlings v. Tredyffrin/ Easttown School District, (ED PA, Sept. 27, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction sought by parents of four students who claim that the students are entitled to religious exemptions from a school district's COVID-19 mask requirement. The court held that none of the plaintiffs demonstrated a "sincere religious belief". In each case the court concluded either that the asserted beliefs were not sincerely held or were not religious in nature.  The court described the asserted beliefs of each plaintiff:

Ms. Marvin believes people are made in the image of God and it therefore dishonors God to cover our faces....

Ms. Geerlings believes the body is a temple and must not be harmed, and in her view, masks violate the prohibition on harming the body because they are unhealthy....

Mr. Governanti came to believe that he must not harm his daughter, which, in his view, means he must not allow his daughter to wear a mask....

Mr. McLellan believes God intervened in his life to save him from certain trauma, and that masks are a mockery of the gift of life because they cover what makes us human and show a lack of gratitude to the creator.

TRO Issued Barring Denial of Religious Exemptions To Health Care Workers' Vaccine Mandate

 In Dr. A v. Hochul, (ND NY, Sept. 14, 2021), a New York federal district court issued a temporary restraining order barring the New York Department of Health from enforcing any requirement that employers deny religious exemptions from the Department's COVID-19 vaccine mandate. At issue is the Department's recent vaccine mandate for health care workers employed at hospitals and nursing homes. The TRO was issued one day after the suit was filed. The state has until Sept. 22 to file its objections and the court set a hearing for September 28 at which time the state will be able to present its arguments against turning the TRO into a preliminary injunction. Hudson Valley360 reports on the decision. (See prior related posting.)