Poll Worker Loses Free Exercise Challenge to Vaccine Mandate

In Wolfe v. Logan, (CD CA, Jan 25, 2023), a California federal district court in an In Chambers proceeding granted Los Angeles County officials' motion to dismiss numerous challenges by plaintiff to the county's COVID-19 vaccine mandate for poll workers. Rejecting plaintiff's Free Exercise challenge, the court said in part:

The policy, as alleged by Wolfe, is neutral and generally applicable. It does not directly target religious expression; the burden that a vaccination requirement places on religious practice is incidental. Wolfe alleges that the vaccination requirement is "without exception."... Because there are no exceptions, there is no individualized exemption process that might invite religious discrimination. Moreover, the vaccine requirement makes no distinction between secular or religious objections people might have to the vaccine; everyone is required to get one if they wish to act as a poll worker.... The policy could hardly be more neutral and generally applicable, and it is therefore not subject to strict scrutiny.

Department of Labor Rescinds Trump Administration Rule Broadening Religious Exemptions from Non-Discrimination Rules

The Department of Labor published in today's Federal Register a release (full text) rescinding a Trump Administration rule that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. According to DOL:

 [T]he 2020 rule increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents..... 

Commenters who supported rescission overwhelmingly agreed that the 2020 preamble raised a serious risk that the rule would be implemented to permit contractors to discriminate against individuals based on protected classes other than a preference for persons of a particular religion.....

OFCCP emphasizes that, absent strong evidence of insincerity, OFCCP would accept a religious organization’s own assertions regarding doctrinal questions. However, OFCCP believes it is important to clarify that it is not appropriate to construe the Executive Order 11246 religious exemption to permit a qualifying religious organization to discriminate against employees on the basis of any protected characteristics other than religion.

Bloomberg Law reports on the rule change, (See prior related posting.)

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.

5th Circuit Hears Oral Arguments in Navy SEAL's Suit Seeking COVID Vaccine Exemption

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments in U.S. Navy SEAL's 1-26 v. Biden, (Docket No. 22-10077, argued 2/6/2022) (audio recording of full oral arguments). In the case, a Texas federal district court issued preliminary injunctions barring the U.S. Navy from imposing its COVID-19 vaccine mandate on Navy service members who sought religious exemptions from the requirement. (See prior postings 1 and 2). Politico reports on the oral arguments.

HHS Proposes Repeal of Exemption from Contraceptive Mandate for Entities with Nonreligious Moral Objections

 Yesterday, the Department of Health and Human Services along with several other federal agencies filed a 147-page release (full text) proposing rule changes to the Trump Administration's exemptive rules under the Affordable Care Act for employers and universities with objections to furnishing employees and students coverage for contraceptive services. The proposed rule changes would eliminate the current exemption for employers and schools that have moral, as opposed to religious objections. The new rules would retain the exemption for employers and universities with religious objections.  However, under new arrangements, their employees and students could, in addition to existing options, obtain contraceptive services through an individual contraceptive arrangement with another provider, and without any involvement on the part of the employer or university with religious objections. The Center for Medicare and Medicaid Services issued a press release explaining the proposed rules, and CNN reports on the proposals.

Federal Reserve Bank Can Be Sued Under Both Title VII and RFRA

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Jan. 18, 2023), a New York federal district court held that two former employees of the Federal Reserve Bank of New York may bring Title VII as well as RFRA and Free Exercise claims against FRBNY for denying them a religious exemption from the Bank's COVID vaccine mandate. It distinguished cases holding that other governmental entities can be sued only under Title VII. It held however that New York City and New York state anti-discrimination laws are pre-empted by federal law giving NYFRB the power to dismiss employees.

Vaccine Mandate Without Religious Exemption Is Upheld

In Spivack v. City of Philadelphia, (ED PA, Jan. 4, 2023), a Pennsylvania federal district court held that Philadelphia's District Attorney Lawrence Krasner did not violate the religious rights of an Orthodox Jewish Assistant District Attorney when he refused to grant her an exemption from the Office's COVID vaccine mandate. The mandate, in its final form, offered no religious exemptions and only limited medical exemptions. According to the court, in seeking a religious exemption plaintiff submitted a letter from her rabbi that explained:

congregation members are forbidden from (1) benefitting from the live dissection of animals; (2) using hybridization technologies; (3) "self-flagellating"; (4) exposing themselves to unnecessary risk (Spivack's "natural immunity" to the virus made vaccination unnecessary); and (5) injecting a product whose precise ingredients are undisclosed.... Neither Krasner nor the City disputes that Spivack's sincerely holds her religious beliefs.

Rejecting plaintiff's First Amendment challenge, the court said in part:

Spivack offers no evidence that Krasner's exemption changes "stemmed from religious intolerance, rather than an intent to more fully ensure that employees [at the DAO] receive the vaccine in furtherance of the State's public health goal."...

[T]he medical exemption Krasner finally approved was for an objectively and narrowly defined category of persons: non-union DAO employees for whom a vaccination could be life-threatening. This is not the kind of exemption that undermines the Policy's general applicability....

The DAO ... "seriously considered substantially less restrictive alternatives" in the hope that they could achieve the Office's compelling interest-- "trying to keep people as safe as we can."... Concluding that these alternatives were inadequate, the Office required vaccinations for all non-union employees save one.

In these circumstances, the DAO Vaccine Policy survives strict scrutiny review.

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.

Army Enjoined from Disciplining Plaintiffs Who Refuse COVID Vaccine on Religious Grounds

A Texas federal district court this week issued a preliminary injunction preventing the military from taking disciplinary action against ten members of the Army who object on religious grounds to complying with the Army's COVID vaccine mandate.  However, the injunction does not prevent the military from taking their vaccination status into account in making deployment, assignment and other operational decisions.  In the case, Schelske v. Austin, (ND TX, Dec. 21, 2022), the court said in part:

The Army has a valid interest in vaccinating its soldiers, and it has made the COVID-19 vaccine mandatory. But its soldiers have a right to religious freedom, which in this case includes a sincere religious objection to the COVID-19 vaccine. Which side must yield? The answer lies in the Religious Freedom Restoration Act, which applies to the military: The Army must accommodate religious freedom unless it can prove that the vaccine mandate furthers a compelling interest in the least restrictive means. The Army attempts to meet that burden by pointing to the need for military readiness and the health of its force. But ... these generalized interests are insufficient. Rather, the Army must justify denying these particular plaintiffs’ religious exemptions under current conditions. Here, with 97% of active forces vaccinated and operating successfully in a post-pandemic world, the Army falls short of its burden....

The parties’ dispute centers on whether the Army can prove that application of the vaccine mandate to these plaintiffs furthers a compelling government interest through the least restrictive means possible. At every turn, however, the evidence before the Court weighs against the Army and in favor of the plaintiffs....

Finally, the Court recognizes that much of this litigation may soon be moot. Congress recently passed the National Defense Authorization Act for Fiscal Year 2023.... If signed by the President into law, the NDAA would require the Secretary of Defense to “rescind the mandate that members of the Armed Forces be vaccinated against COVID-19” within 30 days of enactment.... Despite these developments, the Army has refused to commit to halting separation proceedings against the plaintiffs by way of any agreement that this Court can enforce.

EEOC Sues Over Refusal To Accommodate Religious Objections To Flu Vaccine

The EEOC announced on Friday that it has filed a Title VII religious discrimination lawsuit in a Georgia federal district court against Children’s Healthcare of Atlanta (CHOA), a pediatric healthcare system. According to the EEOC's press release:

... [A] maintenance employee, in accordance with CHOA’s procedures, requested a religious exemption to CHOA’s flu vaccination requirements based on sincerely held religious beliefs. CHOA had previously granted the employee a religious exemption in 2017 and 2018. In 2019, however, CHOA denied the employee’s request for a religious accommodation and fired him, despite the employee’s extremely limited interaction with the public or staff.

... Title VII ... prohibits firing an employee because of his religion and requires that sincerely held religious beliefs be accommodated by employers....

“It would not have been an undue burden for CHOA to continue accommodating its employee as it had in 2017 and 2018,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “Instead, CHOA inexplicably changed its stance on flu vaccination exemptions for this maintenance employee in 2019 and failed to consider any meaningful reasonable accommodations for his sincerely held religious beliefs.”

Suit Charges Selective Granting of Religious Exemptions From COVID Vaccine Mandate

A class action lawsuit was filed in a Virginia federal district court this week alleging that the University of Virgina Health System violated free exercise and establishment clause provisions of the federal and state constitutions as well as equal protection rights in the manner in which it administered applications from employees for religious exemptions from its COVID vaccine mandate. The complaint (full text) (memo in support of motion for preliminary injunction) in Phillips v. Rector and Visitors of the University of Virginia, (WD VA, filed 12/14/2022), alleges in part:

2. When UVA Health mandated that employees receive a COVID-19 vaccine, it knew that it was required to accommodate religious beliefs. But it wanted to minimize accommodations, and it believed that most objections were false political beliefs from members of the political right. 

3. So UVA Health drew up a list of churches that its human-resources personnel believed had official doctrines prohibiting vaccination. It then automatically exempted members of these religions from receiving the vaccine. As to employees who were members of other faiths, UVA Health automatically dismissed their religious objections to the COVID-19 vaccine as insincere, as non-religious in nature, as based on “misinformation,” or as a misinterpretation of the objector’s own religious beliefs....

5. The result was blatant—and blatantly unconstitutional—religious discrimination....

The complaint goes on to allege that UVA categorically dismissed as misinformation objections based on the relation of fetal cell lines to the vaccines. [Thanks to Samuel Diehl for the lead.]

Court Rejects Religious Challenges to COVID Mask Requirements

 In Joseph v. Becerra, (WD WI, Nov. 29, 2022), a Wisconsin federal district court rejected a pro se plaintiff's claims that VA and Postal Service COVID masking requirements violated his free exercise and Establishment Clause rights as well as various other rights. The court said in part:

Joseph refuses to wear a mask, which he views as a medical device and religious symbol. A Christian, Joseph claims to practice his faith in part by “taking a stance against what he sees and understands to be evil or unlawful,” such as the masking requirements.... Specifically, Joseph alleges that the masking requirements violate several of the tenets of his faith and promotes “Collectivism” over his individual rights. By promulgating a masking policy, Joseph further alleges that the federal government is seeking to establish “a nameless and covert religion/religious order” that “is a type of scientism ... discriminatory and divisive in nature and in practice.”...

[P]laintiff’s Establishment Clause claim is not only based on a Bivens claim not yet recognized by the Supreme Court, but also on the “faulty premise” that “scienticsm” is a religion. .... Admittedly, the governing case law does not precisely define the contours of what constitutes “religion,” but “courts are well-equipped to weed out spurious Establishment Clause ‘religions’ on grounds of common sense.”...

[E]ven if wearing a mask has substantially impaired plaintiff’s ability to exercise his faith while receiving in-person medical treatment, working, traveling in public spaces, or attending public events, rules that have only an “incidental effect of burdening a religious practice” will pass muster under the Free Exercise Clause provided they are applied neutrally and generally applicable.

Police Officer Sues Over Denial of COVID Vaccine Religious Exemption

This week, a former Boston police officer who is a Jehovah's Witness filed suit in a Massachusetts state trial court seeking $2 million in damages for the actions of the Boston Police Department in denying his request for a religious exemption from the Department's COVID vaccine mandate. He was placed on administrative leave and subsequently terminated. The complaint (full text) in Colon v. City of Boston, (MA Super. Ct., filed 11/28/2022), also alleges that he was ridiculed because of his religious beliefs. Boston.com reports on the lawsuit.

6th Circuit Affirms Preliminary Injunction Protecting Air Force Personnel Who Have Religious Objections to COVID Vaccine

 In Doster v. Kendall, (6th Cir., Nov. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who have sought religious exemptions from the military's COVID vaccine mandate. The injunction however did not interfere with the Air Force’s operational decisions over the Plaintiffs’ duties. The 6th Circuit concluded that plaintiffs' RFRA claim was likely to succeed on the merits, saying in part:

Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests.... Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement)....

Under RFRA, the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues.... The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class.....

In the abstract, the Air Force may well have a compelling interest in requiring its 501,000 members to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over 97% of its force.... Under RFRA, however, the Air Force must show that it has a compelling interest in refusing a “specific” exemption to, say, Lieutenant Doster or Airman Colantonio.... To succeed ..., the Air Force must identify the duties of each Plaintiff and offer evidence as to why it has a compelling interest in forcing someone with those duties to take the vaccine or face a sanction....

If the Air Force can permanently retain those who cannot deploy because of their religious objections to a war, it must explain why it cannot permanently retain those who cannot deploy because of their religious objections to a vaccine.

(See prior related posting.) Courthouse News Service reports on the decision.

Football Coach Sues After Being Fired for Religious Refusal of Covid Vaccine

Suit was filed last week by the former head football coach for Washington State University who was fired after refusing on religious grounds to comply with the state's Covid vaccine mandate for state employees. The Athletic Department refused to grant him a religious accommodation, questioning the sincerity of his religious objections as well as the University's ability to accommodate his objections. The complaint (full text) in Rolovich v. Washington State University, (WA Super. Ct., filed 11/14/2022), alleges that the coach's firing amounts to religious discrimination in violation of state and federal law and infringement of plaintiff's free exercise and due process rights. Campus Reform reports on the lawsuit.

Suit Challenges Refusal to Grant Religious Exemption from Covid Vaccine Mandate

Suit was filed last week in a New Jersey state trial court by a Behavioral Support Technician at a state-operated group home who was fired after refusing on religious grounds to comply with the facility's Covid vaccine mandate. The facility refused to grant a religious exemption to plaintiff.  The complaint (full text) in Bowleg v. New Jersey Department of Human Services, (NJ Super. Ct., filed 11/3/2022), alleges that the New Jersey Law Against Discrimination was violated by failing to accommodate plaintiff's religious objections, and by wrongful termination and retaliation that constitute religious discrimination. Thomas More Society issued a press release announcing the filing of the lawsuit.

Community College Vaccine Mandates Upheld

In George v. Grossmont Cuyamaca Community College District Board of Governors, (SD CA, Nov. 3, 2022), a California federal district court, in a 41-page opinion, rejected a variety of constitutional challenges and a religious discrimination challenge under Title VII to the Covid vaccine mandates of three community college districts. Plaintiffs were six employees and a student.  The mandates provided for medical and religious exemptions and accommodations. In evaluating plaintiffs' free exercise claims, the court concluded that both the mandates and the accommodation frameworks are neutral and generally applicable. In rejecting the Title VII claim, the court concluded that plaintiffs had shown no adverse employment action against them because they had all received religious exemptions.

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.