Pew Survey On Attitudes Toward Religious Exemption Claims To Vaccine Mandates

Yesterday the Pew Research Center released the results of its American Trends Panel survey on attitudes toward COVID-19 mandates and claims of religious objections to vaccines. A release titled Americans skeptical about religious objections to COVID-19 vaccines, but oppose employer mandates reads in part:

Two-thirds of U.S. adults say most people who claim religious objections to a COVID-19 vaccine “are just using religion as an excuse to avoid the vaccine,” while about a third (31%) say they think the objectors “sincerely believe getting a COVID-19 vaccine is against their religion.”

At the same time, most Americans do not think those with religious objections to the COVID-19 vaccine – regardless of the sincerity of their beliefs – should lose their jobs. A majority of adults (65%) say employers that require coronavirus vaccinations should “allow employees who have religious objections to keep their jobs even if they decline to get the vaccine.” Around a third (32%) disagree....

11th Circuit Grants Limited Stay Of Injunction Against Navy's Vaccine Mandate

In Navy SEAL 1 v. Secretary of the U.S. Department of Defense, (11th Cir., March 30, 2022), the U.S. 11th Circuit Court of Appeals granted a limited stay of a Florida district court's preliminary injunction granted to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate. The court allowed the Navy to consider the plaintiffs’ vaccination status in making deployment, assignment, and other operational decisions while appeals are pending. However the court refused to stay the injunction more broadly. Liberty Counsel issued a press release announcing the decision.

District Court Issues Class-Wide Injunction To Navy SEALS Vaccine Objectors

 In U.S. Navy SEALs 1-26 v. Austin, (ND TX, March 28, 2022), a Texas federal district court granted a class-wide preliminary injunction to  4,095 Navy servicemembers who object on religious grounds to the Navy's COVID-19 vaccine mandate and have filed religious accommodation requests. The court also certified two sub-classes. However, the court immediately stayed the injunction "insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions." This decision expands the court's previous grant of a preliminary injunction to 35 individual plaintiffs into a class-wide injunction.  That order was stayed, pending appeal, by the Supreme Court, insofar as it barred the Navy from considering the COVID vaccination status of the service members in making deployment, assignment and operational decisions. (See prior posting.) Liberty Counsel issued a press release announcing the decision.

Lawsuit By Nun Seeks A Religious Exemption From D.C.'s Healthcare Professionals' Vaccine Mandate

Litigation over the denial of religious exemptions from COVID vaccine mandates continues. This week, a suit was filed in the D.C. federal district court by a nun who is a surgeon and family physician. The DC health department denied her request for a religious exemption from its vaccine requirement for health care professionals.  The complaint (full text) in Byrne v. Bowser, (D DC, filed 3/9/2022) contends that this violates Sr. Deirdre's rights under RFRA and the Free Exercise Clause. In seeking a temporary restraining order and preliminary injunction. plaintiff lists the various medical services she will be unable to perform, including "her abortion pill reversal ministry with the result that human lives that could have been saved in utero might well be lost." Attached to the complaint are nearly 450 pages of exhibits. Thomas More Society issued a press release announcing the filing of the lawsuit.

Another Suit Seeks Religious Exemptions From Military's Vaccine Mandate

Yet another group of military personnel have filed suit challenging the military's COVID vaccine mandate.  As in a number of other cases, plaintiffs complain that while regulations allow religious exemptions, almost all applications for them are denied.  The complaint (full text) in Roth v. Austin, (D NE, filed 3/8/2022), was filed by 36 Air Force and Air National Guard members who allege that their rights under RFRA and the First Amendment have been infringed. WOWT reports on the lawsuit.

Questionnaire Upheld As Basis For Vaccine Religious Exemption

In Ferrelli v. State of New York Unified Court System, (ND NY, March 7, 2022), a New York federal district court upheld the system for determining whether employees are entitled to religious exemptions from the COVID vaccine mandate imposed on all judges and employees of the New York state court system. The court described the screening process for exemptions in part as follows:

[T]he two most common reasons for seeking a religious exemption were (1) concern about the connection between COVID-19 vaccines and fetal cells, and (2) concern about the sanctity or purity of the applicant’s body.... Because the committee often found the information in applicants’ personal statements insufficient to assess the basis for and sincerity of the belief, it created a supplemental form.... In particular, Section A inquires as to applicants’ use of other medications and vaccinations that were tested using fetal cell lines, and requests explanations of inconsistencies in past or present use of such products.... Section B requests information about other medicines, medical treatments, vaccines and/or foods from which the applicant abstains due to her religious beliefs; when she began abstaining; and why her faith requires such abstention.....

The court concluded that this exemption process was neutral and generally applicable, saying in part:

Defendants have not created a system of individualized exemptions and refused to extend it to religious hardships. Rather, they have created a system of religious exemptions and refused to extend it to Plaintiffs based on responses, or lack thereof, to a supplemental form.

Pentagon Asks Supreme Court To Stay Injunction Obtained By Navy SEALS Who Object To Vaccines

 Yesterday in Austin v. U.S. Navy Seals 1-26 the Pentagon filed with the Supreme Court an Application (full text) for a stay while appeals are pending of an injunction issued by a Texas federal district court. In the case, the district court issued a preliminary injunction barring the Navy from imposing its COVID vaccine mandate on 35 Navy service members who have religious objections to the vaccines. (See prior posting.) The  Pentagon sought a stay of the injunction from the 5th Circuit insofar as it precludes the Navy from considering vaccination status in making deployment, assignment, and other operational decisions. The 5th Circuit refused to grant the stay. (See prior posting.)  In its Application to the Supreme Court, the Pentagon contends in part:

[E]ven if respondents’ claims had merit, respondents would not be entitled to an injunction dictating the Navy’s deployment, assignment, and operational decisions.... An injunction that trenches on core Article II prerogatives concerning which military servicemembers are qualified for which missions  ... has no precedent in our Nation’s history.

The Application was filed with Justice Alito who called for appellees to respond by March 14. SCOTUSblog reports on the filing.

Stay Of Injunction Denied In Suit Over Religious Exemptions From Military's Vaccine Mandate

In Navy Seal 1 v. Austin, (MD FL, March 2, 2022), a Florida federal district court refused to stay, pending appeal, an injunction that had been granted to two service members who refused to comply with the military's COVID vaccine mandate.(See prior posting.)  In refusing the stay, the court said in part:

Although certainly not “given the task of running the Army,” the courts in the narrow instance of RFRA are given the task of ensuring that those who are given the task of running the Army (and the armed forces in general and every other component of the federal government) conform their actions to the governing law, to RFRA, to which the admirals and the generals and commandants are unquestionably subordinate — just like the President, the Speaker of the House, the Chief Justice, and every other person in the federal government.

Liberty Counsel issued a press release announcing the decision.

5th Circuit Upholds Injunction Against Vaccine Mandate For Navy Seals With Religious Objections

In U.S. Navy Seals 1-26 v. Biden, (5th Cir., Feb. 28, 2022), the U.S. 5th Circuit Court of Appeals refused to grant the Navy a partial stay of an injunction issued by a Texas federal district court protecting 35 special warfare personnel who object on religious grounds to complying with the military's COVID vaccine mandate. The court said in part:

Defendants have not demonstrated “paramount interests” that justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their religious beliefs. They insist that “given the small units and remote locations in which special-operations forces typically operate, military commanders have determined that unvaccinated service members are at significantly higher risk of becoming severely ill from COVID-19 and are therefore medically unqualified to deploy.” But “[r]outine [Naval Special Warfare] mission risks include everything from gunshot wounds, blast injuries, parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers to animal bites, swimming or diving in polluted waters, and breathing toxic chemical fumes.” There is no evidence that the Navy has evacuated anyone from such missions due to COVID-19 since it instituted the vaccine mandate, but Plaintiffs engage in life-threatening actions that may create risks of equal or greater magnitude than the virus.

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Suit In Connecticut State Court Challenges Elimination Of Religious Exemptions To School Vaccine Requirements

Suit was filed earlier this month in a Connecticut state trial court challenging the Connecticut's elimination of religious exemptions to the requirement that school children receive vaccination against several diseases. In January, a Connecticut federal district court dismissed a similar challenge (We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022).  The new state court complaint (full text) in We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (CT Super., Feb. 8, 2022), contends that requiring students who have religious objections to receive vaccines developed with fetal cells, or containing porcine gelatin, violates various provisions of the Connecticut state constitution and of state law protecting free exercise of religion, as well as equal protection, bodily self-determination, child-rearing, and public education rights.  CT Insider reports on the lawsuit.

Certiorari Denied In Challenge To Maine COVID Vaccine Mandate

Yesterday the U.S. Supreme Court denied review in Does 1-3 v. Mills, (Docket No. 21-717, certiorari denied, 2/22/2022) (Order List). At issue in the case is whether Maine's COVID vaccine mandate for healthcare workers, without the availability of religious exemptions, violates the Free Exercise clause. (See prior posting.) LifeNews reports on the denial of certiorarai.

Supreme Court Denies Injunction As School System Postpones Vaccine Mandate

In Doe v. San Diego School District, (Sup. Ct., Feb. 18, 2022), the U.S. Supreme Court issued an Order (full text) refusing to enjoin a school district's COVID vaccine mandate that does not provide for religious exemptions.  The Court said in part:

Because respondents have delayed implementation of the challenged policy, and because they have not settled on the form any policy will now take, emergency relief is not warranted at this time. Applicants’ alternative request for a writ of certiorari before judgment and a stay pending resolution is denied for the same reason. The Court’s denial is without prejudice to applicants seeking a new injunction if circumstances warrant.

As a press release from the Thomas More Society relates, the suit was brought by a student athlete whose religious beliefs prevent her from taking the current vaccines because of the use of fetal cells in their development.

Two Servicemembers Get Preliminary Injunction Preserving Their Religious Objections To COVID Vaccine

In Navy Seal 1 v. Austin, (MD FL, Feb. 18, 2022), a Florida federal district court granted a preliminary injunction to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate.  The court said in part:

Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest. In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination....

[T]he Navy, the Marine Corps, and the Air Force submit ... the twenty-five most recent letters denying an appeal and submit every letter granting a religious exemption. The submission reveals a process of “rubber stamp” adjudication by form letter, a process incompatible with RFRA’s command to assess each request “to the person.”

On February 2, the same court had issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the most recent decision.

UPDATE: In an April 1, 2022, decision (full text), the district court modified the preliminary injunction to allow the Marine Corps to consider vaccination status in making deployment, assignment, and other operational decisions.

UPDATE: On April 21, the court issued an opinion (full text) supporting its April 1 Order.

5th Circuit: United Airlines Employees Irreparably Injured By Religious Coercion Over COVID Vaccine

In Sambrano v. United Airlines, (5th Cir., Feb. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 per curiam decision, reversed a Texas federal district court's decision that no "irreparable injury" had been suffered by United Airlines employees who were placed on unpaid leave after they refused for religious reasons to comply with the company's COVID vaccine mandate.  The district court held that the employees were not entitled to a preliminary injunction because their loss of income could be remedied by an award of damages in an action under Title VII.  The 5th Circuit majority disagreed, saying in part:

Critically, we do not decide whether United or any other entity may impose a vaccine mandate. Nor do we decide whether plaintiffs are ultimately entitled to a preliminary injunction. The district court denied such an injunction on one narrow ground; we reverse on that one narrow ground and remand for further consideration....

Properly understood, the plaintiffs are alleging two distinct harms— one of which is reparable ..., and the other of which is irreparable.... The first is United’s decision to place them on indefinite unpaid leave; that harm, and any harm that flows from it, can be remedied through backpay, reinstatement, or otherwise. The second form of harm flows from United’s decision to coerce the plaintiffs into violating their religious convictions; that harm and that harm alone is irreparable and supports a preliminary injunction.

Judge Smith wrote a stinging 56-page dissent, saying in part:

In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop. It rewrites Title VII to create a new cause of action. It twists the record to fit that invention. It defies our precedent and the commands of the Supreme Court. But this majority is no senseless bull. Knowing exactly what it has wrought, the majority declares that its unsigned writing will apply to these parties only. By stripping its judgment of precedential effect, the majority all but admits that its screed could not survive the scrutiny of the en banc court....

For every conceivable reason that the plaintiffs could lose this appeal, they should. The statute does not allow the relief they seek. Nor do our precedents; if they did, the Supreme Court has overruled them. If they have not been overruled, fifty years of precedent and centuries of Anglo-American remedies law show that preliminary relief may not issue. If it could issue, it shouldn’t, because the only plaintiffs with standing claim no harm from the “impossible choice” between full postjudgment relief and eternal damnation.

Chicago Tribune reports on the decision.

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.]

Air Force Officer Gets Injunction Against Required COVID Vaccine

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

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

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

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

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

Thomas More Society issued a press release announcing the decision. 

Supreme Court Refuses To Enjoin NYC Vaccine Mandate For Teachers

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

Department of Education Reaffirms BYU's Exemption From LGBTQ Anti-Discrimination Requirements

The U.S. Department of Education, Office of Civil Rights, issued a determination letter (full text) on Feb. 8, 2022, dismissing a complaint filed by LGBTQ students at Brigham Young University.  The University bans same-sex romantic relationships among its students.  The OCR letter affirms that the University is exempt from the non-discrimination provisions of Title IX:

to the extent that the application of those provisions would conflict with the religious tenets of the University's controlling religious organization that pertain to sexual orientation and gender identity.

The University issued a press release announcing the OCR determination. Salt Lake Tribune reports on the determination and reactions to it.

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.