The Second Circuit has held that the State of New York's requirement that healthcare workers take the Covid-19 vaccination is likely constitutional and cannot be struck down at this time. This ruling overturns a preliminary injunction against the mandatory vaccination issued by a federal trial court in Utica, and it affirms a second ruling that that upheld the mandatory vaccination rule by a federal trial court in Brooklyn.
The case is We the Patriots, Inc. v. Hochul, issued on November 4, one week after oral argument. The challenge arises from the absence of any religious exception from the mandatory vaccination rules. For that reason, the plaintiffs bring this case under the Free Exercise Clause of the First Amendment (also known as the religious freedom clause) and Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in employment. A central component of their argument is that, since the mandatory vaccination rules contain a medical exemption for people who get sick from the vaccine, the lack of a religious exemption singles out religion and is therefore illegal.
Under the Free Exercise Clause, a facially-neural law that has the incidental effect of burdening religious activities is constitutional. The Supreme Court said that in Employment Division v. Smith (1990), written by Justice Scalia. At the time, legal scholars raised holy hell about this ruling, claiming it discarded decades of Supreme Court authority that said that even neutral laws that burdened religious activities are presumed unconstitutional unless the government could advance a compelling reason for applying it to religious practices. In that case, the government was able to restrict religious but ceremonial drug use by a Native American tribe, because the law applied to everyone. But if the law singles out religious practices on its face, in contrast, then the law is unconstitutional unless the government can articulate a compelling reason for this selective legislation. So, for example, if a religion advocates human sacrifices, then a law prohibiting the religion from doing that will will not be struck down under the Free Exercise Clause.
The New York vaccine mandate for health care workers is neutral and does not single out religion, the Court (Carney, Walker and Sack) says, even though the original, albeit emergency, mandatory vaccination law did provide for such an exemption before New York revised it after further deliberation to remove the religious exemption. That sequence of events does not mean the revised regulation is hostile toward religion; nor does it mean the absence of a religious exemption means that religion is being singled out. On its face, the revised regulation means it is neutral toward everyone, except for people who claim a medical exemption.
The medical exemption does not change things, the Court holds, because the medical exemption is not comparable to the religious exemption. The Court accepts the state's justification for the distinction between medical and religious exemptions, stating:
the State maintains [that] the medical and any religious exemption differ in an important respect: applying the Rule to those who oppose vaccination on religious grounds furthers the State’s asserted interests, whereas applying the Rule to those subject to medical contraindications or precautions based on pre-existing conditions would undermine the government’s asserted interest in protecting the health of covered personnel. Vaccinating a healthcare employee who is known or expected to be injured by the vaccine would harm her health and make it less likely she could work.
In addition, "the State has also presented evidence that raises the possibility that the exemptions are not comparable in terms of the 'risk' that they pose. It notes that the medical exemption is defined to be limited in duration, as the vaccine requirement is 'inapplicable only until such immunization is found no longer to be detrimental to such personnel member’s health.' . . . In contrast, a sincerely held religious belief that vaccination is inconsistent with one’s religion is unlikely to change to permit vaccination in the future, absent the approval of new vaccines that are developed in a different way. The statistics provided by the State further indicate that medical exemptions are likely to be more limited in number than religious exemptions, and that high numbers of religious exemptions appear to be clustered in particular geographic areas."
What about the Title VII claim alleging the mandate discriminates against religion in the workplace? That argument also fails, the Court of Appeals says, because allowing employees to forego the vaccine is not the only religious accommodation that management may extend to employees. Any reasonable accommodation that does not cause the employer undue hardship will do. The limited preliminary injunction record does not provide the Court of Appeals with enough information for it to know whether there were many or few such accommodations available to religious employees.
Of course, this fight is not over. I am sure the plaintiffs' attorneys are seeking Supreme Court review on this issue. The conservative Justices have been favorably inclined toward religious freedom arguments in recent years, especially in the context of Covid-19 policies. They may use this case to reevaluate its prior interpretations of the Free Exercise Clause, as well, to make it easier to challenge government policies that in some way infringe on religious practices.
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