Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

6th Circuit: Employees Have No Free Exercise Claim Against Company That Denied Them a Religious Exemption from Vaccine Mandate

In Ciraci v. J.M. Smucker Company, (6th Cir., March 14, 2023), the U.S. 6th Circuit Court of Appeals held that employees of a company that sells food products to the federal government may not assert a 1st Amendment free-exercise claim against the company for denying them a religious exemption from a COVID vaccine mandate imposed by the company after the federal government required government contractors to do so. The court said in part:

Constitutional guarantees conventionally apply only to entities that exercise sovereign power, such as federal, state, or local governments.... Smucker’s may be a big company. But it is not a sovereign. Even so, did Smucker’s become a federal actor—did it exercise sovereign power?—for purposes of this free-exercise claim when it sold products to the federal government and when it imposed the vaccine mandate because the federal government required it to do so as a federal contractor? No, as the district court correctly held. We affirm....

Smucker’s does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That Smucker’s acted in compliance with a federal law and that Smucker’s served as a federal contractor—the only facts alleged in the claimants’ complaint—do not by themselves make the company a government actor.

The court went on to suggest that even if the company were a state actor, there may be no cause of action against them:

To the extent the claimants seek damages directly under the First Amendment against a federal official, they must rely on the kind of implied cause of action created by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). But extending Bivens is “disfavored” ...

That leaves claimants’ demands for a declaratory judgment, reinstatement, and other equitable relief. In equity, it is true, claimants sometimes may “sue to enjoin unconstitutional actions by state and federal officers” even in the absence of a statutory cause of action.... But today’s claimants seek more than a prohibitory injunction. They seek reinstatement and other affirmative relief. It is not clear whether, as a matter of historical equitable practice, we may infer, imply, or create a cause of action for such relief. But because the parties have not briefed or argued these points and because they do not go to our jurisdiction, we need not decide them today.

Minnesota Appeals Court Decides When Religious Reasons for Vaccine Refusal Were Proven

In three cases decided within days of each other, the Minnesota Court of Appeals wrestled with the question of whether employees' claims of religious objections to the COVID vaccine were credible.  At issue in each case was the former employee's entitlement to unemployment benefits.  If the religious claim was legitimate, vaccine refusal would not constitute disqualifying employment misconduct.

In Washa v. Actalent Scientific, LLC, (MN App, Feb. 22, 2023), the court reversed the decision of an unemployment law judge. It found that substantial evidence did not support the unemployment-law judge's finding that a medical lab technician's refusal was based on safety concerns rather than religious beliefs.  The technician had testified that he did not want to be defiled so that God could enter and he could avoid going to Hell.

In Quarnstrom v. Berkley Risk Administrators Company, LLC, (MN App., Feb. 22, 2023), the court remanded the case, finding that the unemployment-law judge had used the wrong standard in deciding whether an insurance adjustor's refusal was personal rather than religious. The court said in part:

The ULJ reasoned that Quarnstrom’s reasons for refusing the COVID-19 vaccine were not based on sincerely held religious beliefs because she did not cite to particular passages in the Bible, had not been instructed by a religious advisor to refuse the vaccine, and conceded that other members of her congregation could, consistent with their faith, choose to get a vaccine. But “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”...

In McConnell v. Federal Reserve Bank of Minneapolis, (MN App, Feb. 24, 2023), the court in a 2-1 decision held that the record did not support the unemployment-law judge's conclusion that vaccine refusal by an FRB employee was based on secular, not religious, reasons.  The majority said in part:

Although McConnell testified to concerns regarding the safety of the COVID-19 vaccine, she repeatedly tied those concerns back to her faith.... [S]he testified that, although she believes in some medical interventions, she “prayerfully consider[s] things.” The ULJ found McConnell’s testimony regarding safety concerns credible and rejected her testimony regarding her religious beliefs as not credible.... The ULJ offered no reason for crediting only part of McConnell’s testimony, and we can discern none.

Judge Segal dissented, saying in part:

I would conclude that, although it implicates constitutional rights, this appeal, like many others, turns on a credibility determination that is supported by the record. As such, I believe that precedent requires that we defer to the ULJ’s credibility determination.

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.

Court Rejects Free Exercise Claim of Judge Who Was Not Reappointed Because of Vaccination Status

In Donlon v. City of Hornell, (WD NY, Feb. 27, 2023), a New York federal district court refused to issue a preliminary injunction requiring the city to appoint plaintiff to another term as an assistant city court judge. Plaintiff was denied a religious exemption from the New York court system's COVID vaccination mandate.  This meant that she was unable to conduct in-person hearings and could not maintain a criminal calendar while working virtually. The court said in part:

Plaintiff has not demonstrated that the City’s alleged reasons for denying her reappointment were either “non-neutral or not generally applicable.”... 

In her papers, Plaintiff has a tendency to conflate her vaccination status with her religious beliefs, but the two are distinct....

Plaintiff acknowledges that the City’s concern was not her religious beliefs about vaccination, but the fact that her vaccination status interfered with her “ability to do [her] job while barred from the courtroom.”...

The City’s preference for a candidate who could hold proceedings in person and maintain the criminal caseload required of the position is “religion[] neutral.”... The City is free to prefer such a candidate, and Plaintiff is not, “under the auspices of her religion, constitutionally entitled to an exemption,”... or to “preferential . . . treatment.”... Furthermore, Plaintiff presents no evidence that the City’s preference was not generally applicable—i.e., that the City relied on this preference in a selective manner, imposing “burdens only on conduct motivated by religious belief.”... There were only two candidates for the position, and, in accordance with its “religion-neutral” preference, the City selected an attorney who was vaccinated and could therefore conduct proceedings in person.

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....

Denial of NYPD Officer's Religious Objection to Vaccination Was Arbitrary and Capricious

 In Grullon v. City of New York, (NY County Sup. Ct., Feb. 3, 2023), a New York state trial court held that the New York Police Department's denial in internal appeals of a police officer's religious objections to the Department's Covid vaccine mandate was arbitrary and capricious. The court said in part:

[D]espite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.

The court concluded that the officer is entitled to employment with a reasonable accommodation of weekly Covid testing.

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.

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.

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.