At 10:00 AM this morning, a Northern District of NY federal judge signed a TRO stopping the new Governor and the Department of Health from a bunch of things relating to religious exemptions being denied to state health care workers.
Here is the order.
Here is the complaint. It is interesting because it’s not only about the religious exemption but also about natural immunity. Thomas More Society NY FED Hospital Pleading!!!
This might be a good template for other such actions for many reasons, not the least of which is that it seems to circumvent Jacobson, which is limited to upholding the constitutionality of state vaccine mandates under the state’s police power.
This is a different issue. There is a federal statute that accords certain religious accommodations/exemptions to employer mandates, the contours and processes are murky and undefined. Cases like this one invoke the constitutional buzzword “religion” and there is the aforementioned federal statutory basis that gets the attention and serious consideration of the Courts. Not enough attention on a straight state mandate because of Jacobson . But based on a right to practice religion under federal law, well that is apparently a whole different issue. Now, two federal courts have temporarily stopped states from interfering with the religious rights of workers.
This case is going to proceed quickly. Per the order, the judge wants to convert the TRO into a preliminary injunction unless the state objects (and it will I think) and proceed to a permanent injunction hearing. The other thing of note is that the state’s new order and the denials do not go into effect until later this month, so the judge pointed out that despite the TRO it has no practical effect for the next few weeks, which gives the state plenty of time to react. But Leticia and her crew will be mightly busy until then.
Between, this and the whole Biden OSHA thing, for which Jacobson is also not direct precedent, well, like I said, it’s going to get interesting and those opposing the mandates may continue to get some good news.
Rick Jaffe, Esq.