"We cannot enjoin what no longer exists"

This COVID-19 vaccination challenge reaches the Court of Appeals nearly five years after the virus ripped its way across the United States and around the world. Plaintiffs argue that the vaccine mandate from the State of New York and their private employer violated the religious freedom protections under the Constitution and federal law, as they claimed to have a sincerely-held religious belief against ingesting the vaccine. While some of these challenges have succeeded in the last few years, many of them now are being dismissed as moot. This is one of the mootness cases.

The case is John Does v. Hochul, a summary order issued on December 20. The case is moot because the vaccine mandate in this case was repealed in October 2023. That means there is no live controversy under the Constitution, which does not authorize theoretical lawsuits. The Court of Appeals (Cabranes, Sullivan and Perez) states, "we cannot enjoin what no longer exists."

The mootness rule has an exception: the court can still rule on the regulation if the regulation might resurface in the future. The state's repeal of the vaccination requirement corresponded with similar repeals around the country as the COVID-19 pandemic began taking on new personalities. While people still get COVID-19, the state has not tried to resurrect the vaccine mandate. As such, plaintiffs are not under "a constant threat" that the mandate will return. While the state continues to defend the vaccine mandate in court, that does not overcome mootness. Nor was the repealed vaccine mandate a mere litigation tactic, the Court of Appeals holds. 

As for plaintiff's Title VII lawsuit against their private employers, that claim fails under Rule 12, which means the case will never go beyond the pleading stage, and there will be no discovery. What dooms this portion of the case is the principle that the private employer can defend against certain forms of religious discrimination if a reasonable accommodation would cause an "undue hardship" on the entity. That is the case here, even at the pleading stage, the Court of Appeals holds, because the private employers had to comply with state regulations in enforcing the vaccine mandate. Cases hold that an accommodation that would violate legal obligations constitute an undue burden under Title VII. If the private employers in New York were to accommodate the plaintiffs, they would be in violation of New York's regulations. That's an undue hardship under the precedents.