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Our doctor advised it would not be a good idea for us to get Covid-19. We already wheeze after ascending the stairs or rolling the garbage bin to the curb or opening the mail, so any further respiratory burden seems like a bad idea. Thus, even though some have declared the pandemic over, we remain cautious.  Good luck inviting us to any public place.  Pascal may have said that all of humanity’s problems stem from man’s inability to sit quietly in a room alone, but he wasn’t talking about us. We’re quite happy to avoid the madding and infectious crowds by sitting home with a good book or mediocre tv show, or by planting a nose against the kitchen window, watching the red shouldered hawk wait for dinner to show up at the pond. You might even say that we live deliberately. 

Our doctor also advised us to get every Covid booster vaccination as soon as possible, and we have done so.  Some of our Twitter acquaintances and frenemies have told us that the boosters will kill us or will permit Melinda Gates to spy on our every movement.  Those threats do not bother us.  If anyone is going to go through all the trouble to plant a chip in our arm, they’re probably not looking to bump us off any time soon.  And, as mentioned above, we don’t actually engage in a lot of movement, so fair play to anyone who chooses to spy on us.  We’ll be a stationary dot on the screen, reading The New Yorker or glaring outside at the geese.  

So, yes, we are unabashedly pro-vax.  Bring on the hate emails.  We’ll toss the virtual missives into the virtual fireplace.   And we’ll wish you good luck.  

But we do not wish good luck to litigants challenging vaccine mandates. When governments or employers insist that public-facing employees must be vaccinated in order to perform their jobs, we are relieved and  grateful. If employees decide to give up their jobs rather than be vaccinated against Covid, we shake our heads at their tenacity and grieve for their health, but so be it.  We might call it a remarkable sacrifice, or a stupid sacrifice. Or a remarkably stupid sacrifice. And yet, in truth, some employees do not want to sacrifice anything.  They want to remain unvaxxed “truebloods,” inflicting their viral silliness on the rest of us.  Luckily, pretty much every time the antivaxxers sue to get their way, they lose.  

For example, they lost in Wise v. Inslee, 2022 U.S. Dist. LEXIS 76793 (E.D.Wash. April 27, 2022), the last, dusty 2022 case sitting on our desk. (Yes, it’s been sitting there for eight months. We have a very messy desk.)  Let’s review yet another smack down of the antivaxxer position and then pray that 2023 brings us less disease and insanity.  

The plaintiffs in Wise brought a putative class action challenging the state of Washington’s vaccination requirements for certain employees.  The plaintiff’s arguments had more quantity than quality.  We count six basic theories, which equates to the number of Covid-19 jabs we’ve had (five) plus the inevitable next one.  We’ll go through them quickly.  It won’t hurt a bit.  You might feel a slight pinch (especially if you’re a conspiracy-mongering, science-distrusting lunatic).

Jab 1: Free Exercise Clause

The plaintiffs argued that the vaccine mandate “impairs their ability to freely exercise their sincerely held religious beliefs.”  The court concluded that “[t]his argument is blatantly incorrect,” even if one were to forgive the split infinitive.  The vaccine mandate is facially neutral – it does not single out any religions for mistreatment.  Nor was there any evidence of intent to hound any particular religions.  Consequently, the mandate is subject to rational review, which it easily passes.  Going back to the SCOTUS Jacobson case in 1905, the sane among us have recognized that the right to practice religion “does not include liberty to expose the community or the child to communicable disease or … ill health or death.”

Jab 2: Due Process

The Wise court discussed both substantive due process (a legal theory that manages to sound and actually be dopey simultaneously) and procedural due process (a term straight from the Department of Redundancy Department, and which would not exist save for the ridiculous existence of the other kind).  Turning first to procedural due process, the vaccine mandate was generally applicable, meaning that the employees were not entitled to process above the notice provided by the enactment and publication of the mandate.  Turning to substantive due process (which we were taught long ago in law school had been discredited in the wake of the Lochner error, er, era), the plaintiffs were not “completely prohibited from seeking employment in their respective fields; they are free to seek employment with employers that do not require vaccination or that have accommodations available for unvaccinated employees.”  With all due respect, so much for the plaintiffs’ due process claims.

Jab 3: Contract Clause

The plaintiffs never cited any particular contractual provision that had allegedly been hobbled by the vaccine mandate; all they did was refer to their collective bargaining agreements.  In any event, the Wise court held that the vaccine mandate served the state’s compelling interest in reducing Covid-19 infections.  Unless the plaintiffs could show that the mandate was an “unreasonable and inappropriate response to Covid-19” — and they could not — the Contract Clause claim was a goner.

Jab 4: Americans with Disabilities Act

The plaintiffs did not identify “any facts alleging disability discrimination,” but it does not matter, because the plaintiffs had not exhausted administrative remedies by filing a claim with the EEOC.  The plaintiffs said there was a big backlog at EEOC, but the court said too bad.  Let’s face it: any time a court can rid itself of a claim for failure to exhaust administrative remedies, it is going to do so.  

Jab 5: Title VII

The plaintiffs “failed to allege facts that would support the prima facie elements for workplace discrimination because there is no indication that Plaintiffs faced adverse employment decisions due to their sincerely held religious beliefs rather than a failure to comply with the [vaccine mandate].”  Also, again, the plaintiffs failed to exhaust administrative remedies.

Jab 6: Section 1983

Under section 1983, plaintiffs can sue people acting under color of state law who deprived the plaintiffs of constitutionally protected rights.  But here, the plaintiffs were unable to muster up “any violations of constitutional or federal law.”  As with all of the plaintiffs’ causes of action, there was no there there. 

And there you have it.  The antivaxxers once again offered arguments shot through with holes. They might think they are immune to logic, but they are not.  The Wise decision was, indeed, wise.