Yesterday, federal courts in the Northern and Southern districts of California denied requests for injunctive relief for Kaiser employees and San Diego school district kids whose parents didn’t want them to take the COVID vaccine.
No surprises here.
The SD school district case upheld the mandate that prohibits in-person learning or in-person extracurricular activities without complying with the vaccine mandate.
Here is the opinion. Thomas More SD TRO Denied.
The plaintiffs tried to assert a free exercise clause argument based on the two Supreme Court cases which overturned in-person restrictions to religious services (Cuomo and the second South Pentacostall case). But the district court correctly held that those cases do not apply. Those two cases involved regulation which directly impacted people’s right to worship in a house of worship, which directly impacts the free exercise of religion. Not wanting to take a vaccine because of religious beliefs, and having restrictions or being barred from a in-person learning, just is not a comparable restriction. This decision is in line with all district and appellate court decisions on the issue and related issues: the Sixth Circuit (the Indiana University case), the Second Circuit (the Health care workers’ cases), the Houston district court case (involving Methodist hospital nurses which gave little deference to their “vaccine preferences”), as well as the two central district of California cases which rejected challenges to vaccine mandates on different grounds, (at least one of which was also rejected by the 9th Circuit and the Supreme Court).
The Kaiser case was the same ol same ol, with some state privacy claims.
Here is that decision: 39 – Order denying re PI
People, I’m sorry, but the religious free exercise rights and the privacy argument isn’t going to work, probably not ever, but certainly not in a pandemic.
As I said many times in the past, the Constitution isn’t a suicide pact; you don’t have a right to endanger other people and judges don’t pay any attention to like-minded medical experts expressing a minority view about how safe the unvaccinated are.
It may turn out that everything you think is right.
And by the way, the entire argument, soup to nuts, is all laid out very cogently in Bobby Kennedy’s new book. If you haven’t ordered and read it yet, you should. Here is the link to it. https://www.amazon.com/Real-Anthony-Fauci-Pharma-Democracy/dp/B09LVYYTJJ/ref=sr_1_1?crid=5VHABU49QWEF&keywords=the+truth+about+anthony+fauci&qid=1637427199&sprefix=the+truth+about+%2Caps%2C176&sr=8-1 .
However, unless and until what Bobby K lays out becomes widely accepted, judges will continue to rule the way they are ruling in all these privacy, bodily integrity, informed consent, and free exercise cases involving vaccine mandates.
The only real open question at this point is how far the federal government can go or whether it has to be left to the state and local governments and private companies. So, the only sure-fire solution is to find a place with like-minded people, which many of you are doing. For sure, not what you wanted to hear, but that’s the reality which I don’t think will change in the short term or with the latest and greatest lawsuit.
All of these cases have to do with work and school. There is of course a still small but disturbing trend toward barring the unvaccinated from venues, activities and even eating and drinking establishments. There has been some pushback. If the fourth wave comes to the US and it’s big, that’s where the next round of litigation will occur.
If they start to restrict essential daily activities like shopping for basics, that’s where I can see the courts stepping in. I think this is a possibility if there is a big fourth wave because I don’t think the country will tolerate another lock-down. The new work-around to a full lock-down is Austria’s lock-down of the unvaccinated. I think that kind of restriction might change the mindset of the judiciary. But, I hope it does not come to that.
Rick Jaffe, Esq.