Most courts – including SCOTUS – leaving vaccine mandates in place against religious liberty challenges

by | Dec 14, 2021

The U.S. Supreme Court this week – by a 6-3 vote – declined to take up two cases challenging New York’s mandate that all health care workers receive the COVID-19 vaccine. The move leaves the mandate, which does not offer a religious exemption, in place after the 2nd U.S. Circuit Court of Appeals denied the plaintiffs’ request to halt it. Justice Neil Gorsuch issued a dissenting opinion from the decision to deny the case, joined by Justice Samuel Alito. The dissent argues that New York’s mandate lacks religious neutrality because it initially included a religious exemption that was later stripped and because of certain controversial statements made by Gov. Kathy Hochul regarding the removal of the religious exemption.

Individuals claiming religious objections to the COVID-19 vaccine continue to file lawsuits across the country challenging the legality of vaccine mandates issued by governments and employers. But a survey of the cases winding their way through the legal system indicates that, like the Supreme Court this week, most courts are ruling against the religious objectors, leaving a variety of mandate approaches largely in place.

As usual, drawing bright-line conclusions about the state of the law would be a mistake! These cases emerge from diverse factual situations where the details hold a lot of legal significance. For example, is the entity mandating the vaccine part of the government or a private employer? Is there a religious accommodation allowed? Are there other non-religious exemptions allowed? What is the process of evaluating a religious exemption request? What are the consequences of refusing the vaccine? All of these concerns could tip the balance of interests in cases like these. Still, the vast majority of recent decisions (including one by the U.S. Supreme Court) have seen courts refuse to halt vaccine requirements for those refusing on religious grounds.

[For more on the intersection of vaccine mandates and religious liberty, check out Season 3, episode 3 of BJC’s essential podcast, Respecting Religion. BJC General Counsel Holly Hollman and Executive Director Amanda Tyler discuss the issue with clarity and detail. I highly recommend it!]

 Here is a rundown of recent cases:

 In John Doe v. San Diego Unified School District, the 9th U.S. Circuit Court of Appeals on November 28 halted a requirement issued by San Diego’s school district that students 16 and older must receive the COVID-19 vaccine to be allowed to participate in on-site education and extracurricular activities. But the injunction was granted only because the district allowed an automatic deferral for pregnant students, while offering no religious accommodation. The injunction was lifted – and the mandate reinstated – as soon as the exemption for pregnant students was removed less than a week later. See the December 4 ruling.

In Kane v. DeBlasio, the 2nd U.S. Circuit Court of Appeals halted the process the New York Department of Education implemented for reviewing religious accommodation requests from teachers and school administrators required to get the vaccine. The review process required applicants to provide documentation from a religious official supporting their request, and it called for the denial of a request where the leader of the applicant’s religious affiliation had spoken out in favor of receiving the vaccine. The court explained that “[d]enying an individual a religious accommodation based on someone else’s publicly expressed views … runs afoul of the Supreme Court … .” At the same time, the appeals court upheld the vaccine mandate generally as a “reasonable exercise of the State’s power to act to protect the public health.”

In Together Employees v. Mass General Brigham, Inc., the U.S. Supreme Court declined to grant a petition for emergency relief filed after the 1st U.S. Circuit Court of Appeals rejected an injunction request brought by health care workers whose requests for religious exemption from their employer’s vaccine mandate were denied. The court noted that an injunction for religious discrimination under the Civil Rights Act is appropriate only when there is the risk of irreparable harm. Because the harm here is financial (loss of wages due to the loss of employment), the court emphasized, it is reparable with a financial award if the health care workers are successful. As to the employees’ constitutional claims, because their employer is private and not a government actor, the court explained, Mass General cannot violate their employees’ First Amendment rights.

Likewise, in Federoff v. Geisinger Clinic, a district court in Pennsylvania made short work of health care worker requests for an injunction halting their employer’s mandate that they either receive the vaccine or submit to regular testing. Not only are their constitutional claims inappropriate against a private employer, the court noted, but their employment discrimination claims suffer from refusing to provide any information about their religious objection. Via Religion Clause, the court explains:

[W]hat the Employees have provided to the Court suggests that their religious objections are neither rooted in religion, nor truly objections. The Employees requested relief is at war with itself: it is particularly difficult, if not impossible, to square the Employees alternate requested relief—that I require all employees to be tested—with their supposedly deeply felt religious opposition to testing. If you are willing to be tested so long as the vaccinated are too, you are not religiously opposed to testing. On a separate note, the Employees’ hyper-focus on the “science” of testing and its potentially harmful health effects in their papers only furthers this Court’s skepticism that what objection they might have is rooted in a scientific or medical belief, not religion. Far from carrying their burden, the Employees pleadings and briefing fail to detail how their opposition to Geisinger’s policy is rooted in a religious belief. Their papers utterly fail to address the matter.  

In Troogstad v. City of Chicago, a federal district court in Illinois refused to halt a mandate that city employees receive the vaccine, rejecting plaintiffs’ claim that refusing a vaccination is a “fundamental right.” The request for an accommodation must be heard fairly, the court noted in its opinion, but there is no absolute right for exemption:

[W]hen a person’s decision to refuse a vaccine creates negative consequences (even life-threatening at times) for other people, that [privacy] interest is not absolute.


To be clear, if a particular employee is denied a religious exemption, she may challenge that denial, based on the particular facts of her case, as a violation of her free exercise rights. But no Plaintiffs have been denied a religious exemption on grounds other than failing to adequately articulate their individual circumstances, as the City Vaccination Policy requires.

In Seal I v Biden, a federal district court in Florida has deferred until at least January 7, 2022 a decision on a preliminary injunction request brought by members of the U.S. military against the Biden administration’s vaccine mandate for all servicemembers. The mandate includes a religious exemption process, but the plaintiff servicemembers argue that it is a sham because to date no exemptions have been granted. The court noted that it is too early to assess the data because so many applications remain pending, and it has ordered each branch of the military to provide regular data beginning January 7, 2022.

Meanwhile, the attorney general and governor of Oklahoma have sued the Biden administration over its vaccine mandate for all federal employees. Despite the fact that the mandate allows for religious accommodation, plaintiffs argue it violates the Free Exercise Clause.