Congress Passes National Defense Authorization Bill with Various Provisions Impacting Religion

A press release from the U.S. Senate Armed Services Committee reports that on Thursday the U.S. Senate passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 by a vote of 83-11. The 4408-page bill (full text) now goes to President Biden for his signature. Among the provisions that impact religious concerns are the following:

 SEC. 509D. STUDY OF CHAPLAINS. 

(a) STUDY REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense, in consultation with the Secretaries of the military departments, shall submit to the Committees on Armed Services of the Senate and House of Representatives a study of the roles and responsibilities of chaplains. 

(b) ELEMENTS.—The study under subsection (a) shall include the following: (1) The resources (including funding, administrative support, and personnel) available to support religious programs. (2) Inclusion of chaplains in resiliency, suicide prevention, wellness, and other related programs. (3) The role of chaplains in embedded units, headquarters activities. and military treatment facilities. (4) Recruitment and retention of chaplains. (5) An analysis of the number of hours chaplains spend in roles including pastoral care, religious services, counseling, and administration. (6) The results of any surveys that have assessed the roles, responsibilities and satisfaction of chaplains. (7) A review of the personnel requirements for chaplains during fiscal years 2013 through 2022. (8) Challenges to the abilities of chaplains to offer ministry services.

SEC. 525. RESCISSION OF COVID-19 VACCINATION MANDATE

Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding ‘‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members’’.

SEC. 529. RECURRING REPORT REGARDING COVID-19 MANDATE. 

(a) REPORT REQUIRED.—The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a recurring report regarding the requirement that a member of the Armed Forces shall receive a vaccination against COVID-19. 

Each such report may not contain any personally identifiable information, and shall contain the following:  (1) With regard to religious exemptions to such requirement— (A) the number of such exemptions for which members applied; (B) the number of such religious exemptions denied; (C) the reasons for such denials; (D) the number of members denied such a religious exemption who complied with the requirement; and (E) the number of members denied such a religious exemption who did not comply with the requirement who were separated, and with what characterization....

Section 533 requires the Armed Forces to submit to Congress a report on recruiting efforts. Among other things, the Report is to include:  "A comparison of the race, religion, sex, education levels, military occupational specialties, and waivers for enlistment granted to enlistees by geographic region and recruiting battalion, recruiting district, or recruiting region of responsibility."

Title XXIX contains various provisions relating to access, preservation and protection of Native American cultural and religious sites within land used for bombing ranges and training areas.

Section 5576 limits foreign aid funds allocated for Burma, providing that funds may not be made available to "to any individual or organization that has committed a gross violation of human rights or advocates violence against ethnic or religious groups or individuals in Burma."

Section 6416 provides for creation of an Office of Wellness and Workforce Support for CIA personnel. Among other things, the Office is to make available: "A list of chaplains and religious counselors who have experience with the needs of the Agency workforce...."

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.]

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.

2nd Circuit Remands Challenge to Emergency Ban of Unvaccinated Children from Public Places

In M.A. v Rockland County Department of Health, (2d Cir., Nov. 9, 2022), the U.S. 2nd Circuit Court of Appeals sent back to the trial court a free exercise challenge to Rockland County, New York's Emergency Declaration barring children who were not vaccinated against measles from places of public assembly.  Children with medical exemptions were exempt from the ban. The court said in part:

Because there are factual issues relevant to whether the Emergency Declaration was neutral and generally applicable, the district court erred in granting summary judgment in favor of Defendants on Plaintiffs’ claim that the Emergency Declaration violated their rights under the Free Exercise Clause. While a reasonable juror could conclude that [County Executive] Day’s statements evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County’s purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court’s grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous.

Judge Park filed a concurring opinion, saying in part:

In the spring of 2019, Rockland County quarantined children who were unvaccinated for measles for religious reasons— prohibiting them from entering any public place—but not children who were unvaccinated with medical exemptions. County officials did not even try to hide their reasons for engaging in this “religious gerrymander[ing],” which served to isolate, target, and burden Plaintiffs’ religious practices.... To them, Plaintiffs were “anti-vaxxers” who were “loud, very vocal, [and] also very ignorant.”...

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.

Vaccine Objector Loses Challenge

In Marte v. Montefiore Medical Center, (SD NY, Oct. 12, 2022), a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center refused to provide her a reasonable accommodation when she refused to receive a COVID-19 vaccine which was required for all employees.  The court rejected her Title VII claim saying in part:

Plaintiff does not allege that she informed Defendant that she had a religious objection to the COVID-19 vaccination, or even that Defendant was aware that she has a religious objection to the vaccine; she pleads only that she told her employer she did not want the vaccine and asked for "a reasonable accommodation as defined by law." ... Defendant could not have discriminated against Plaintiff on the basis of her religious beliefs if Defendant was unaware of those beliefs....

Even if Plaintiff had pleaded a prima facie claim for religious discrimination, her argument is foreclosed by the Second Circuit's decision in We The Patriots. Defendant correctly argues that Plaintiff's requested accommodation would qualify as an undue hardship because it required Defendant to violate the law.

The court also rejected her free exercise, equal protection and other challenges.

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

City Employees Did Not Show Sincere Religious Objection To COVID Vaccine

In Keene v. City and County of San Francisco, (ND CA, Sept. 23, 2022), a California federal district court dismissed a suit by two city employees who objected on religious grounds to the city's COVID vaccine mandate. The court said in part:

Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.... Feeling passionately about something or having a specific personal preference does not merit the status of a sincere religious belief....

The court denied a preliminary injunction under Title VII and California's Fair Employment and Housing Law, also concluding: 

It is well-settled law that loss of employment does not constitute irreparable harm for purposes of an injunction....

Police and Fire Fighters Sue Over COVID Vaccine Mandate

Suit was filed last week in a New Jersey federal district court by a group of seven police officers and firefighters who were denied a religious accommodation to excuse them from a COVID vaccine mandate. The complaint (full text) in Aliano v. Township of Maplewood, (D NY, filed 9/16/2022), contends that the denial violates Title VII and the New Jersey Law Against Discrimination. New Jersey 101.5 reports on the lawsuit.

Musicians Sue Over Denial Of Religious Exemption From Vaccine Mandate

A Title VII religious discrimination lawsuit was filed yesterday in a Florida federal district court by three musicians who have religious objections to COVID vaccines. They were placed on partial-paid leave by their private employer, an arts organization that operates the Naples Philharmonic, when they refused to comply with the employer's vaccine mandate.  The complaint (full text) in Leigh v. Artis-Naples, Inc., (MD FL, filed 9/21/2022), alleges in part:

Artis-Naples implemented an illegal policy that no exemption or accommodation would or could be granted to any employee who had to be present onsite to perform their job....

Artis-Naples irrationally and pretextually argues that accommodating unvaccinated employees who follow alternative preventative measures would place an “undue hardship” on its operations—specifically, that unvaccinated employees present “a direct threat” of infection to patrons and coworkers....

Florida law requires Artis-Naples to exempt Plaintiffs from the Mandate....

As a matter of law, it can never be an “undue hardship” for an employer to comply with the state law and public policy.

Employees Fired For Religious Refusal Of COVID Vaccine Bring Title VII Suit

Four former employees of a continuing care retirement community filed suit in an Alabama federal district court last week claiming that they were wrongly fired for refusing the COVID vaccine on religious grounds.  The 105-page complaint (full text) in Hamil v. Acts Retirement-Life Communities, Inc., (SD AL, filed 9/15/2002), contends that plaintiffs were subjected to a hostile work environment, harassment, and wrongful termination based on their sincerely held religious beliefs. They were denied religious exemptions, or had previously granted religious exemptions rescinded. According to the complaint:

Such conduct was undertaken to preserve Defendants' exorbitant sums of monetary assistance in the form of government grants, coronavirus relief funds, and Medicare and Medicaid funds....

In the case at hand, the crux of the issue is the unlawful employment practices undertaken by Defendant and not the constitutional validity of any vaccine mandate....

The complaint contains lengthy descriptions of plaintiffs' religious beliefs and alleges various violations of Title VII as well as numerous state law claims. 1819News reports on the lawsuit.

6th Circuit Refuses To Stay Class-Wide Injunction Against Air Force Enforcing Vaccine Mandate Against Religious Objectors

In Doster v. Kendall, (6th Cir., Sept. 9, 2022), the U.S. 6th Circuit Court of Appeals refused to grant an emergency stay of a class-wide injunction that was issued by an Ohio federal district court in a suit by Air Force and Space Force members who object on religious grounds to receiving the COVID vaccine. The district court enjoined the military from taking enforcement measures, while litigation is pending, against service members who have submitted confirmed requests for a religious accommodation from the military's vaccine mandate. The 6th Circuit said in part:

[T]he Department challenges only the merits of the district court’s decision to certify the class—the Department’s position being that, even if the named plaintiffs are likely to prevail on their individual claims, the court’s certification of the class was an abuse of discretion, and thus so too was the court’s issuance of a class-wide preliminary injunction....

The Department ... argues that RFRA claims categorically cannot be certified for class treatment. Here, for example, it says that the plaintiffs’ RFRA claim requires the court to determine separately for each service member whether the vaccination mandate is the least restrictive means of furthering a compelling governmental interest. We agree that most RFRA claims require that kind of individualized analysis; and we have no quarrel with the Department’s contention that such an analysis could not be conducted class-wide here. But the Department’s argument misconceives the nature of the RFRA claim that the district court certified. The court’s order emphasized on almost every page that the RFRA claim it certified was one based on a class-wide “clear policy of discrimination against religious accommodation requests.” ... That claim ... does not turn on an analysis of the class members’ individual circumstances and likely can be adjudicated class-wide.

Liberty Counsel issued a press release announcing the decision.

7th Circuit: Plaintiffs Failed To Show Facts Supporting Free Exercise Objections To COVID Vaccine Mandate

In Lukaszczyk v. Cook County, (7th Cir., Aug. 29, 2022), the U.S. 7th Circuit Court of Appeals, ruling on three separate district court cases, refused to order preliminary injunctions against local and state COVID vaccine mandates.  The court said in part:

The plaintiffs argue the mandates violate their constitutional rights to substantive due process, procedural due process, and the free exercise of religion. They also contend the mandates violate Illinois state law. Although the plaintiffs could have presented some forceful legal arguments, they have failed to develop factual records to support their claims. Because the plaintiffs have not shown a likelihood of success on the merits, we affirm the decisions of the district judges....

Discussing plaintiffs' Free Exercise claims, the court said in part: 

[I]f these assertions have merit, there is no record evidence to support them. The plaintiffs should have gathered facts and created a record detailing any wrongful denials of requests for religious exemptions. Instead, they made a facial challenge, which ignored the text of the policy’s religious exemption and the status of the plaintiffs’ exemption requests. This does not show a violation of their right to freely exercise their religions.