Hell if I know, but I think we all might find out soon.
Later today, October 27th, the Second Circuit Court of Appeals will decide whether the New York state emergency order which mandated the COVID shot for all state health care workers will go into effect, or whether it will continued to be stayed pending the trial of permanent injunction case.
You will recall that a Northern District federal judge granted a TRO and then a preliminary injunction barring enforcement of the order on the grounds that it did not provide for a religious accommodation (what some call an exception). The district court held the order violated employees’ Title VII rights and also the free exercise clause of the First Amendment’s protection of religious rights.
On the other hand, a Brooklyn federal judge denied a preliminary injunction against the same law. However, the Second Circuit previously issued its own stay of the emergency order pending further consideration, and that further consideration would be today’s hearing which will take up the two cases with opposite results.
I think the dispositive issue in the case is whether the law is neutral on its face or whether it discriminates against religion. If it is neutral on its face and only incidentally burdens religion, then the court will use a very low (and practically non-existant) rational relationship test and uphold the NY emergency order. If, on the other hand, the court finds that it singles out people with religious beliefs and hence is not neutral, then strict scrutiny will be applied and the order will be struck down, probably under both theories (Title VII and the free exercise clause). Strict scrutiny requires the use of the least restrictive means possible to achieve an important and compelling state interest. The reason this emergency order cannot meet that requirement is that the first iteration of the order (issued by then-Commissioner Zucker) had a religious accommodation in it. It’s going to be mighty hard to explain why the second iteration, issued eight days after the first is the least restrictive means. That fact alone kills the order, IMO.
Another important and related issue is whether the religious accommodation/exception is on the same footing as a medical exemption excusing compliance with the emergency order, as the NY order does have a medical exception. Those challenging the order say that they are the same and that the medical exemption show that the law is not neutral on its face. As far back as Jacobson, the Supreme Court at least assumed that a mandatory vaccination law had to contain a medical exception. The idea of a religious exception was not addressed in the case.
The recent Supreme Court cases which overturned state restrictions on religious gatherings under lockdown orders probably make clear that Jacobson can’t be used to justify non-neutral based restrictions to religious practices. Beyond that, these cases might also show that in close cases, the Supremes will find that a law which affects religious practices is not neutral or have only an incidental effect on religion. Hence strict scrutiny is triggered, which means the law will be struck down.
Here is the information about Today’s hearing. It should be super interesting. Here is the audio link to Today’s 2:PM audio hearing.
In case you haven’t seen it, here is the reply brief in support of the Northern District’s granting of a preliminary injunction. It’s a good read. Hochul Reply Brief
But even more interesting is a recent Maine case that might have made it up to the Supremes on its so-called shadow docket. Maine issued an order similar to the New York order mandating COVID vaccine for health care workers with no religious accommodation. The district court denied the requested preliminary injunction. The First Circuit refused to stay the Maine order pending appeal of the denial of the preliminary injunction, and then denied the appeal. The plaintiffs have gone to the Supreme Court requesting a stay of the order. Justice Breyer ordered the state to respond. Here are the State’s papers in opposition to the request for a stay. Does v. Mills Maine Writ-Scotus Opposition. The papers set out the history of Maine’s exemptions to mandatory vaccination and how the law is neutral, yada, yada. It’s also a good read.
That Justice Breyer, a liberal is involved and ordered the state to respond is probably welcome news to the plaintiffs. If the Supremes decide to issue a decision on the stay motion, that would be a very good thing because the country needs some clarity on whether the state is required to have a religious accommodation in a COVID employee mandate. I think a decision would also have application to private employers because of the Title VII issues which apply to private and public employers alike. The sooner the Supremes weigh in on this, the better.
So, while I sure as hell don’t know if people have a right to a religious accommodation/exemption from an employee COVID mandate, I think we’re all going to know pretty soon.
And what about kids and school children? Well, that’s the next big battle now that one of the vaccines has EUA approval for 5-11-year-olds. More about that another time.
Rick Jaffe, Esq.