California Ban On Harassing Persons Entering Vaccination Site Violates 1st Amendment

In Right to Life of Central California v. Bonta, (ED CA, Oct. 30, 2021), a California federal district court issued a temporary restraining order barring enforcement of a portion of a California statute that protects patients near vaccine sites from "harassment." The statute was challenged by a right-to-life organization that approaches women entering a Planned Parenthood clinic. The clinic is covered by the statute because it offers HPV vaccine. The court concluded that the 1st Amendment's free speech protections are violated by the prohibition on "harassing" anyone entering or exiting within 100 feet of the site.  The harassment ban bars approaching within 30 feet of such person to give them a leaflet or handbill, or to display a sign, or engage in oral protest, education or counseling. The court did not enjoin enforcement of the ban on obstructing, injuring, intimidating, or interfering with such person.  ADF issued a press release announcing the decision.

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.

2nd Circuit Hears Arguments On New York Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments in Dr. A v. Hochul. (Audio of oral arguments (mp3 file download)). In the case, a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. (See prior posting.) The case was consolidated for oral argument with We the Patriots USA, Inc. v. Hochul which poses similar issues. (Memorandum of Law ).

Washington Vaccine Mandate Upheld Over Free Exercise Challenge

 In Wise v. Inslee, (ED WA, Oct. 25, 2021), a Washington federal district court refused to enjoin Washington state's COVID vaccine mandate for for educators, healthcare workers, and state employees and contractors. One claim was that the mandate violates free exercise rights. The mandate recognizes that individuals may be entitled to disability related or religious accommodations under various anti-discrimination statutes. According to the court:

Plaintiffs appear to argue Proclamation 21-14 is facially neutral but not generally applicable because it essentially creates “an unlawful faith-based barrier to gainful employment.”....

As Defendants rightly indicate, because there are no exemptions for political, personal, or other objections, if anything, the Proclamation encourages religious practice....   Plaintiffs cannot demonstrate a discriminatory application solely because they disagree with the availability of accommodations. Plaintiffs have failed to demonstrate how the Proclamation is not generally applicable....

Plaintiffs’ objections to the Proclamation relate primarily to their disagreement with Defendants’ judgment regarding public health, which is insufficient to overcome the constitutionality of Defendants’ actions in enacting and promulgating the Proclamation, regardless of which level of scrutiny is applied.

Center Square 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.

Justice Breyer Refuses To Enjoin Maine Vaccine Mandate Pending Appeal

As previously reported, a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The 1st Circuit refused to issue an injunction pending appeal, and plaintiffs sought similar relief from the U.S. Supreme Court through a filing with Justice Breyer. Yesterday in John Does 1-2 v. Mills, Justice Breyer issued an Order reading:

The application is denied without prejudice to applicants filing a new application after the Court of Appeals issues a decision on the merits of the appeal, or if the Court of Appeals does not issue a decision by October 29, 2021.

AP reports on developments.

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.

Maine's Vaccine Mandate Without Religious Exemption Upheld

In Jane Does 1-6 v. Mills, (D ME, Oct. 13, 2021), a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The court, denying a preliminary injunction, said in part:

Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs’ refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs....

The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest ...—over religious interests.

In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs....

The court rejected plaintiffs' Title VII failure to accommodate claim by concluding that plaintiffs had not exhausted their administrative remedies.

UPDATE: After the 1st Circuit refused to issue an injunction pending appeal, plaintiffs filed a Motion For Writ of Injunction Pending Appeal with the U.S. Supreme court on Oct. 15. (Liberty Counsel press release.)

Suit Uniquely Brings Together Issues of Abortion and Vaccines

Suit was filed this week in a California federal district court challenging California's recently enacted SB 742 which creates a 30-foot floating buffer zone to prevent harassment or interference with any person who is entering or exiting a vaccination site. The buffer zone applies to anyone within 100 feet from the vaccination site entrance. The complaint (full text) in Right To Life of Central California v. Bonta, (ED CA, filed 10/13/2021), raises the challenge in a unique factual context. Right to Life is an organization that attempts to dissuade women from having abortions and which provides support to pregnant women and those who have had abortions. Its Outreach Center is located next door to a Planned Parenthood clinic and its staff regularly approaches women who are entering Planned Parenthood. The new law prevents this-- even when outreach staff is on its own property-- because the contiguous Planned Parenthood Center offers HPV vaccine. The complaint alleges that the new law violates plaintiff's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

New York Enjoined Over Elimination of Religious Exemptions In Vaccine Mandate

In Dr. A v. Hochul, (ND NY, Oct. 12, 2021), a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The court concluded that the absence of an exemption conflicts with the anti-discrimination provisions of Title VII and with the Free Exercise clause.  The court said in part:

What matters here is not whether a religious practitioner would win or lose a future Title VII lawsuit. What matters is that plaintiffs’ current showing establishes that § 2.61 has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.....

The court also concluded that the law is neither neutral nor generally applicable. The state's original vaccine mandate included both medical and religious exemptions. Subsequently religious exemptions were eliminated. The court said in part:

This intentional change in language is the kind of “religious gerrymander” that triggers heightened scrutiny.

The court had previously issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the decision. AP reports on the decision.

 

6th Circuit: Christian Student Athletes Wrongly Denied Exemption From COVID Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (6th Cir., Oct. 7, 2021), the U.S. 6th Circuit Court of Appeals upheld, pending appeal, a district court's injunction barring Western Michigan University from enforcing its COVID vaccine mandate against 16 Christian student athletes who had applied for religious exemptions. The university requires student athletes to be vaccinated, but provides for medical and religious exemptions. Plaintiffs here however were denied a religious exemption. The court said in part:

[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so....

True, the University did maintain plaintiffs’ athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University’s policy of conditioning “full involvement in the athletic department” on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized....

Because the University’s policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as “strict scrutiny.” ... The University’s interest in fighting COVID-19 is compelling..... But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.”... That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities....

Fox2Detroit reports on the decision.

Rhode Island Vaccine Mandate, Silent On Religious Exemptions, Is Upheld

In Dr. T v. Alexander-Scott, (D RI, Sept. 30, 2021), a Rhode Island federal district court refused to issue a temporary restraining order to prevent enforcement of a Rhode Island Department of Health Emergency Regulation that requires all healthcare workers (except if medically exempt) to be vaccinated against COVID-19. Plaintiffs challenge the absence of a provision for religious exemptions.  Rejecting plaintiffs' 1st Amendment challenge, the court held that the regulation is a neutral law of general applicability. Responding to plaintiffs' claim that the Regulation is in conflict with Title VII, the court said in part:

Nothing in the language [of the Regulation] prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs. Indeed, the Regulation is silent on the issue of religious exemptions. Title VII requires employers to accommodate religious beliefs, practices, or observances only to the extent that doing so would not impose “undue hardship” on the employer.... While the Regulation may make it more difficult for employers to accommodate religious objections; it does not create a “physical impossibility.”

Limited Religious Exemptions From Vaccine Mandate Challenged

Suit was filed this week in a Colorado federal district court challenging provisions limiting religious exemptions from the University of Colorado Medical School's vaccine mandate.  The school offers a religious exemption only to those whose objections are based on a religious belief whose teachings are opposed to all immunizations. The complaint (full text) in Jane Doe, M.D. v. University of Colorado,(D CO, filed 9/29/2021), says in part:

[The policy] imposes two necessary conditions to ... any religious accommodation, namely:

a. ... [A] sincere religious belief that opposes acceptance of “all immunizations” and vaccines; and

b. That the person requesting a religious accommodation be a member of an organized religion whose tenets include a hierarchically promulgated, authoritative position on the moral liceity of “all immunizations” and vaccines....

Both conditions are clearly forbidden by the Establishment, Free Exercise, and Equal Protection clauses of the United States constitution and the Religious Freedom provisions of the Colorado constitution.... [They] privileg[e] hierarchically prescribed religious belief over autonomously prescribed (yet sincerely held) religious belief.

Thomas More Society issued a press release announcing the filing of the lawsuit.

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.)

Suit Challenges Absence Of Religious Exemptions In New York's Vaccine Mandate For Health Care Workers

Suit was filed Friday in a New York federal district court by New York health care workers challenging the absence of religious exemptions in New York state's mandate that all health care workers be vaccinated against COVID-19. The complaint (full text) in John Doe I v. Hochul, (ED NY, filed 9/10/2021) and the accompanying motion and memorandum of law (full text) seeking a temporary restraining order and preliminary injunction allege free exercise, equal protection and Title VII violations, among others. Plaintiffs allege in part:

Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude them from accepting any one of the three currently available COVID-19 vaccines derived from, produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal cell lines.

The suit, filed by Liberty Counsel (press release) is similar to one filed by the same organization last month against the state of Maine. (See prior posting.) Yesterday's New York Times carried a lengthy article on the growing reliance on religious objections to COVID-19 vaccinations.

UPDATE: A similar suit was filed on Monday in the Northern District of New York on behalf of health care personnel, brought by the Thomas More Society.  Dr. A. v. Hochul, (ND NY, filed 9/13/2021) (full text of complaint).

TRO Requires University Soccer Team To Grant Religious Exemptions From Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (WD MI, (Aug. 31, 2021), a Michigan federal district court issued a temporary restraining order requiring the University to grant religious exemptions from its COVID vaccine requirement to four members of the women's soccer team. The university had previously denied the students' exemption requests. The 14-day TRO was issued on the basis of an ex parte motion.  The court said in part:

On the record before this Court, and understanding that WMU has not been afforded an opportunity to response, WMU’s vaccination requirement for student athletes is not justified by a compelling interest and is not narrowly tailored.... WMU has asserted that it has a compelling reason, albeit in a perfunctory manner. WMU appears to conclude that unvaccinated players pose a risk to the health of the vaccinated players.

Great Lakes Justice Center issued a press release announcing the decision, and providing links to pleadings in the case.

Denial Of Religious Exemption From Vaccine Mandate OK'd

In Harris v. University of Massachusetts, (D MA, Aug. 27, 2021), a Massachusetts federal district court rejected student Cora Cluett's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. According to the court:

[Student Affairs Vice Chancellor DeVeau] denied her appeal, since he determined from the substance of her request that she was Roman Catholic and concluded from his research that the COVID-19 vaccine would not violate tenets of that faith.... In interpreting Cluett’s faith to be Roman Catholic, De Veau stated “[i]f this is incorrect, please let me know.”... De Veau then cited a statement from the United States Conference of Catholic Bishops that receiving the COVID-19 vaccines was “morally justified.”

The court held first that insofar as plaintiff was asserting state law claims against state officials, these are barred by the 11th Amendment because Ex parte Young only creates an exception for federal constitutional claims. As to Cluett's 1st Amendment Free Exercise claims, the court said in part:

... UMass is under no constitutional obligation to offer a religious exemption to its Vaccine Requirement. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) ....  Certainly, once the university offers religious exemptions, it must not administer them in an unconstitutional way.... Here, however, Cluett has not alleged anything to suggest that Defendants have administered their religious exemption policy in a way that burdens some religions but not others, ... or that Defendants have coerced her in her religious practices....

Suit Challenges Vaccine Mandate Without Religious Exemption

Suit was filed yesterday in a Maine federal district court on behalf of over 2000 health care workers (all filing anonymously) challenging Maine Governor Janet Mills' order that all health care workers be vaccinated against COVID-19, without any accommodation or exception for religious objections. Medical exemptions are still available.  The complaint (full text) in Jane Does 1-6 v. Mills, (D ME, filed, 8/25/2021), alleges free exercise and religious discrimination violations, saying in part:

The dispute in this case is not about what accommodations are available to Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on compliance with certain reasonable requirements....The dispute is about whether Defendants are required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs....

Plaintiffs all have sincerely held religious beliefs that preclude them from accepting or receiving any of the three available COVID-19 vaccines because of the connection 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 have all informed their respective employers that they are willing to wear facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and otherwise comply with reasonable conditions that were good enough to permit them to do their jobs for the last 18 months with no questions asked.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Religious Objections To Medical College's COVID Vaccination Requirement Upheld

In Magliulo v. Edward Via College of Osteopathic Medicine, ((WD LA, Aug. 17, 2021), a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning plaintiff students' enrollment on their receiving a COVID-19 vaccination. The students had requested an exemption from the college's requirements for religious reasons-- they believed the vaccine was derived from aborted fetal tissue. The college would grant the exemption only if the objecting students complied with extensive restrictions. The court held that Louisiana statutes allow students to assert religious or philosophical objections to the vaccine requirement. It also concluded that the refusal to exempt religious objectors violates the free exercise clause of the Louisiana constitution and the Louisiana Preservation of Religious Freedom Act.  The Louisiana Attorney General had backed the students' position in the case, and the AG's Office issued a press release discussing the decision.