It seems like each day brings new lawsuits and/or decisions on the mandatory vaccination issue.

Yesterday, the Sixth Circuit denied the Michigan university’s attempt to stay the district court’s preliminary injunction barring the university from denying student athletes from participating in sports activities because they were unvaccinated Here is the decision.

6thcircuit

People opposed to mandatory vaccination and in favor of a strong if not absolute right to a religious exemption will be pleased for many reasons. Lawyers in the field will be pleased because the appellate court used/ratified the strict scrutiny test, which basically means the subject law/regulation/action will most likely be struck down (unless the state can prove a compelling state interest and that the rule was the least restrictive means possible.)

The effect of the decision is that these athletes (and presumably any other athlete whose religious exemption was denied), cannot be stopped from playing sports because they are unvaccinated if they had filed a religious exemption which was denied. I am not completely sure about this because the record in the case was unclear about a few important things, like whether the religious exemptions were denied or granted but the accommodation was that they couldn’t play or practice, but still maintained their scholarships.

There was not a fully developed record on the need for the vaccine for public safety. The rationale for the denial of the exemption/accommodation was unclear and not compelling to the appellate court since there was neither a general student vaccine mandate, nor was there a vaccine mandate for students participating in intramural sports. A more thought-out and coherent policy might have survived constitutional scrutiny, but who knows. But, I do read these inconsistencies as being important to the appellate court in reaching its decision.

This decision was based on the “free exercise” part of the First Amendment religious protection. This means the case only applies to state actors. So it would not be precedent for private universities.

The other question I have and I think remains open is whether the government has to have in place a religious exemption/accommodation for students under the free exercise clause. New York state removed the actual religious exemption to mandatory vaccination a couple years ago and that law survived a constitutional challenge, and no one seemed too concerned about the free exercise rights of NY public school students.

There is some language in the Sixth’s opinion indicating or implying that public entities do not have to grant a religious exemption, but if it does, it couldn’t discriminate against students on the basis of their religious practices. If you’re alittle fuzzy about how this all fits together, join the club.

Per my previous post, I think the Second Circuit’s upcoming hearing on October 14th on the NY state health care workers’ religious exemption might give us a better understanding about some of these issues. There was a more developed record on that preliminary injunction case than in this Michigan case That case nominally involved the Civil Rights act. I am also unclear about how the Free exercise clause works with the Civil Rights act which appears to be the basis of the employee challenges to the vaccine mandates on religious grounds.

One good thing about all these decisions is that the more they conflict with each other, the more likely the Supremes are going to have to weigh in and straighten out this mess.

The way I read the legal landscape, the Supremes don’t necessarily have to take up a Jacobson challenge, but they are going to have to set some rules and decide whether there is a right to a religious exemption to a vaccine mandate and if so, what are the minimum procedure requirements which a school or employer has to utilize, and how deep can they can inquire to determine the applicant’s sincerity of the religious beliefs, if at all.

To date, the best arguments seems to be based on religion rights. The worst on a liberty right, control over one’s body and informed consent. The first two of which are settled law (for now at least) based on Jacobson. The last has not gotten any traction in the courts. That’s how I see it anyway.

Another interesting if expected development is that Kaiser was just sued in a California federal court based on its vaccine mandate. You all will really love that complaint since it raises essentially all the scientific and legal arguments made in all prior cases, like natural immunity is better than vaccine induced immunity, the vaccine doesn’t protect against transmission, etc. It’s all there and you will love reading it. Here it is.
kaiser1.

Rick Jaffe, Esq.