As we mentioned in last year’s comprehensive “Survival of the Vaxxest” blogpost on the constitutionality (for over a century) of governmental vaccine mandates, there is no appellate precedent requiring any sort of religious exemption to such mandates.  Freedom of religion does not mean freedom to infect everyone else.

While some jurisdictions allow exceptions to mandatory vaccination for “religious” reasons, that’s a matter of grace, not any sort of constitutional requirement.  No appellate court has ever required such an exemption, and that has been litigated a lot.

Here are the Supreme Court decisions on point.  Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (affirming the constitutionality of criminal enforcement of a vaccine mandate that had no religious exemption; no religion-specific argument raised); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (“The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”); Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 888-89 (1990) (“compulsory vaccination laws” not subject to “strict scrutiny” through “[t]he First Amendment’s protection of religious liberty”).

Today we report on more developments along those lines, from New York – which learned the hard way a few years ago from a measles outbreak caused by anti-vaxxers misusing religious exemptions, and thus abolished religious exemptions altogether.  First, the Supreme Court has now repeatedly rejected attempts to enjoin New York’s governmental vaccine mandates.  See Keil v. New York, NY, 2022 WL 660611 (U.S. March 7, 2022); We the Patriots USA Inc. v. Hochul, 142 S. Ct. 734 (2021); Dr. A v. Hochul, 142 S. Ct. 552 (2021).  That means that all New York City and State employees will now be treated equally by their vaccine mandate, and that nobody can claim religion as a basis for seeking special treatment not available to the rest of us.

The Supreme Court’s most recent denial came in an appeal of Keil v. City of New York, 2022 WL 619694 (2d Cir. March 3, 2022):

We further hold that the district court properly determined, in applying rational basis review, that there were “no facts before it on which it could conclude that the Citywide Panel’s process was irrational in any way or infected with hostility to religion.”

Id. at *4.  Kiel only made the rubble bounce, given the Second Circuit’s previous decisions in We the Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021).

In contrast, [the vaccine mandate] requires all covered employees who can safely receive the vaccine to be vaccinated.  It applies whether an employee is eager to be vaccinated or strongly opposed, and it applies whether an employee’s opposition or reluctance is due to philosophical or political objections to vaccine requirements, concerns about the vaccine’s efficacy or potential side effects, or religious beliefs.  The absence of a religious exception to a law does not, on its own, establish non-neutrality such that a religious exception is constitutionally required.

Id. at 282.

Another recent vaccine mandate decision out of New York is Dr. A. v. Hochul, ___ F. Supp.3d ___, 2022 WL 548260 (N.D.N.Y. Feb. 23, 2022), which is essentially a remand from We the Patriots.  This latest opinion is particularly interesting to us because the anti-vax plaintiffs seized upon one of our favorite tools – FDCA-based preemption – in an attempt to stop the Empire State’s vaccine mandate.  They failed.

The unsuccessful preemption claim in Dr. A sought to use the federal COVID-19 regulation implementing the federal government’s vaccine mandate on medical personnel (something we discussed towards the end of our post, here) offensively against New York State’s vaccine mandate.  That regulation “requires healthcare facilities that participate in the federal Medicare and Medicaid programs to ensure that their covered staff are fully vaccinated against COVID-19.”  2022 WL 548260, at *3 (citation omitted).  The straw these plaintiffs grasped was that part of the federal regulation “recogniz[ing] that ‘in some circumstances, employers may be required by law to offer accommodations for some individual staff members.’”  Id. at *4 (quoting 86 Fed. Reg. 61555, 61572 (HHS Nov. 5, 2021)).  Because the federal mandate contemplated exemptions in a general sense, the Dr. A plaintiffs argued that it required granting their exemptions in this particular instance.  Id.

Didn’t work.  Plaintiffs’ biggest problem was that the regulation’s preemption provision established a floor, not a ceiling for state-law vaccine mandates:

The CMS Mandate states that it is intended to “preempt[] State and local laws to the extent the State and local laws conflict with this rule.”  86 Fed. Reg. at 61613.  However, this preemption provision is limited to “any State or local law providing for exemptions to the extent such law provides broader grounds for exemptions than provided for by Federal law.”

2022 WL 548260, at *4.  Their second biggest problem was that, because they had to argue implied preemption (given the “floor” nature of regulation’s express preemption), they faced the presumption against preemption, which still exists in at least some implied preemption cases.  Id.

Thus, the Dr. A plaintiffs got nowhere with their preemption claim.

To be sure, plaintiffs are correct that the CMS Mandate speaks in terms of both “accommodation” and “exemption.” . . . But these features of the CMS Mandate and its accompanying litigation fall far short of establishing a likelihood of success on the merits of a conflict preemption claim. . . .  Although the Supreme Court . . . made reference to the fact that the CMS Mandate includes “exemption” language, the Court did not consider the question of religious accommodation at all.  Absent a direct ruling on that particular legal issue, the Second Circuit’s pre-existing conclusion; i.e., that [the federal mandate] “does not require employers to violate Title VII” despite forbidding “exemptions,” must still control.

Id. (citations omitted).

The general statement in the federal vaccine mandate that various exemptions “may” apply did not create any entitlement to an exemption for these (or any other) particular plaintiffs.  All that regulation required was that state mandates comply with Title VII of the Civil Rights Act – the “existing federal law” referenced in the regulation.  Id. at *5.

Nowhere does the text of the CMS Mandate express a requirement that an employee with a sincere religious objection be provided an exemption instead of some other accommodation, whether under Title VII or any other federal anti-discrimination law.

Id.  Further, even if the regulation provided some sort of “remedy,” that remedy was to pursue a Title VII claim, which not one of these sixteen plaintiffs had ever done.  Id. (“the remedy for that harm would most likely be found in filing a properly exhausted Title VII claim”).

Finally, plaintiffs’ attempt to rely directly on the Free Exercise Clause failed because, as we – and more importantly the Supreme Court – have previously stated, the constitution does not require religious exemptions to vaccine mandates.

[E]ven assuming one or more plaintiffs were actually denied unemployment insurance based on their refusal to be vaccinated . . ., the burden would then fall on plaintiffs to demonstrate that the State singled out religious objectors (as opposed to those who might have refused vaccination on other grounds) to satisfy [the Supreme Court’s] “valid and neutral law of general applicability” test.

Id. at *6 (emphasis original).  But as we pointed out at the beginning of this post, the New York mandate was completely neutral.  It didn’t allow any religious or other philosophical exemption at all, much less “singling out” religious anti-vaxxers for disparate treatment.

We noticed a footnote in Dr. A that one of the original plaintiffs dropped out when s/he moved to another state after being fired for refusing to comply with the mandate.  2022 WL 548260, at *1 n.1.  If the rest of these plaintiffs feel so strongly, they should do the same.  And conversely, the State of New York (and other pro-vaccination states) should encourage medical personnel of the opposite persuasion – those looking for sane governmental COVID-19 policies, largely vaccinated patient and co-worker populations, higher wages, and better benefits – to move to New York from other states.