Key Cases

COVID-19

Religious Exemption to States' Mandatory Vaccination Statute Not Necessary

In Does 1-6 v. Mills, No. 1:21-cv-00242, 2021 WL 4783626 (D. Me. Oct. 13, 2021), the court denied injunctive relief to plaintiff healthcare workers and providers who sued, alleging that a state regulation requiring all employees of designated healthcare facilities to be vaccinated, subject to a medical exemption but no religious exemption, violated the Free Exercise Clause and Title VII. The court determined that the state statute, 22 M.R.S.A. § 802 (1989), was amended to remove the religious exemption before the pandemic, did not prevent healthcare workers from exercising their religious beliefs (although they might lose their jobs), and did not advantage secular philosophical or politically based objections to the mandate. It also determined that exempting individuals for medical reasons was an essential part of a public health response as compared to exempting them for religious reasons. The court concluded that the statute was facially neutral, generally applicable and subject to rational basis review, but even if strict scrutiny applied, the court decided that the standard was satisfied because vaccination is the gold standard to stop the spread of the disease. The court ruled that the plaintiffs failed to show that the injuries they have or may suffer; i.e., the loss of employment and economic harm, meet the standard for injunctive relief under Title VII.

Similarly, in We The Patriots USA, Inc. v. Conn. Office of Early Childhood Dev., No. 3:21cv597, 2022 WL 105191 (D. Conn. Jan. 11, 2022), the court ruled that mandatory vaccination as a condition to school enrollment without religious exemption does not violate free exercise. Connecticut law previously allowed students to obtain a religious exemption, but Section 1 of Conn. Public Act. No. 21-6 provides no religious exemption to students who do not have a prior existing exemption. According to the court, the requirement is a neutral law of general applicability that is rationally related to a legitimate state purpose. The court distinguished the medical exemption from a religious exemption because the medical exemption ensures that children are not harmed by vaccines that are contraindicated, whereas a religious exemption does not protect schoolchildren. The court also dismissed several counts against state agency defendants due to Eleventh Amendment immunity, counts brought by associational plaintiffs for lack of associational standing, and individual claims for violation of privacy and medical freedom, equal protection, childrearing and the Individuals with Disabilities Education Act (IDEA).

In Does 1-11 v. Bd. of Regents of the Univ. of Colo., No .21-cv-02637, 2022 WL 252320 (D. Colo. Jan. 27, 2022), the court ruled that 17 current and former employees and students of the University of Colorado's Anschutz Medical Campus failed to state a free exercise claim, although the university declined to grant several of them religious accommodations. When the case began, a religious exemption was feasible "based on a person's religious belief whose teachings are opposed to all immunizations." But the university amended its policy, such that a religious accommodation is not available if it would "unduly burden the health and safety of other individuals, patients or the campus community." Consequently, "[r]eligious accommodations are not currently available to students or applicants." A few employees qualified for a religious accommodation under the amended policy because they could work remotely, but the university advised that granting an exemption to others who interact with patients, faculty and staff would cause an undue burden. The defendants argued that the amendment had "the aim of suppressing religious belief, rather than protecting the health and safety of students, staff and community." The court ruled otherwise that it was merely an adaptation to the pandemic. Additionally, the court ruled that the school is not required to offer a religious accommodation to students, is not prevented from treating students and employees differently because Title VII applies to one but not the other, and was not persuaded that allowing a medical exemption but not a religious exemption defeats the general applicability of the policy. Finding the policy neutral, generally applicable and, thus, consistent with free exercise, the court denied the plaintiffs injunctive relief.

No Damages for School Shutdown Order

In Beshear v. Pleasant View Baptist Church, No. 2:20-cv-00166, 2021 WL 4496386 (E.D. Ky. Sept. 30, 2021), the court denied the plaintiff compensatory and punitive damages, as well as injunctive relief against the governor because of his executive order, which temporarily halted in-person classes for public and private schools. E.O. 2020-969. The court determined that the governor was protected by qualified immunity against compensatory damages and denied injunctive relief because the Kentucky Supreme Court upheld legislation that curtailed the governor's power to respond to emergencies such as the COVID-19 pandemic.

Mask Mandate No Free Exercise Violation

In Resurrection Sch. v. Hertel, No. 1:20-cv-1016, 2021 WL 5121154 (W.D. Mich. Nov. 3, 2021), the court denied injunctive relief to a private religious school and two parents on behalf of their children for violation of their free exercise rights against the county health officer and county prosecutor from enforcing an emergency order requiring all persons in educational settings to wear face masks. The plaintiffs argued that the mandate inhibits teaching a proper Catholic education. They asserted that the executive order targets religious schools because 97 percent of students in public schools are already attending a district where masks have been required. But the plaintiffs' argument failed because the executive order created a uniform mandate for all schools and students, whether they go to school at a public school or private religious school. The court determined that exemptions to the mandate are bright line rules, rather than "individualized exemptions"; e.g., when a child is napping, eating or has hearing issues. The court determined that the order is neutral, generally applicable and thus subject to rational basis review. The court decided that the order easily satisfied the standard.

Service Members' Religious Accommodation Claims to Vaccine Mandate Forestalled or Rejected

Two district courts heard argument by armed service members concerning the vaccine mandate. In Church v. Biden, No. 21-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021), the court ruled that 18 civilian employees and two active-duty Marines failed to carry their burden of demonstrating a substantial likelihood of success. They argued that mandatory vaccination provisions contained in Executive Order 14043 and in the U.S. Department of Defense (DoD) Vaccine Mandate infringe on their First Amendment right to the free exercise of religion and contravene the Religious Freedom Restoration Act (RFRA). Several of the employees still had pending requests for religious exemption during which time they could retain their temporary-exempted status. The service members received an initial denial of their request, but still had administrative appellate rights and during the pendency of the appeal were entitled to a temporary exemption from the mandate. When balancing harms, the court expressed unease about the impact on military readiness and unit cohesion if the court enjoined the DoD vaccine mandate.

In Navy Seal v. Biden, No. 8:21-cv-2429, 2021 WL 5448970 (M.D. Fla. Nov. 22, 2021), the court deferred ruling on the plaintiff's free exercise claim until the court receives more data on the extent to which the branches are granting religious exemptions from the COVID-19 vaccination. The plaintiffs object on religious grounds to the COVID-19 vaccine. They argue the military's exemption process is a ruse for a pervasive policy to deny individual consideration of each claim for a religious exemption and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine. From time of approval of Pfizer's COVID-19 vaccine in late August 2021 through mid-November 2021, the military had received about 16,643 requests for religious exemption, denied 2,223 resulting in 466 appeals, finally denied only one request and granted none. The court observed that the greater the number of exemptions and accommodations granted, the more adverse the effect on the readiness of the force, but the less convincing is the ruse argument. Conversely, the fewer the exemptions, the more persuasive is the ruse argument and the less convincing is the argument that the military has a compelling reason not to grant the exemption and accommodations. The court required the defendants to file every 14 days beginning on Jan. 7, 2022, a notice providing separately for each branch of the armed services the aggregate number of religious and medical exemption requests from COVID-19 vaccination, the number of denials, the number of those denials in which the chaplain determined that the asserted belief is sincere, the number of appeals, the number of court martials and separation proceedings involving a religious exemption denial and the like. The court granted the defendants summary judgment on the plaintiffs' other claims to enjoin E.O. 14043 pertaining to federal contractors, as no plaintiffs are civilian employees, and under the informed consent provisions of 21 U.S.C. § 360bb-3 for lack of a private right of action.

Title VII

Morals Clause Ruled Within Religious Exemption to Title VII and Enforceable by Religious and Certain Non-Religious Businesses

In Bear Creek Bible Church v. Equal Employment Opportunity Comm'n, Case No. 4:18-cv-00824-O, 2021 WL 5449038 (N.D. Tex. Nov. 22, 2021), the court certified 1) a class of "Religious Business-Type Employers," for-profit entities such as Braidwood Management Inc. that produce a secular product for whom faith is a motivating part of the businesses' missions and 2) an "All Opposing Employers Class," employers in the United States that oppose homosexual or transgender behavior for religious or nonreligious reasons. The court determined that RFRA and the First Amendment permits them to enforce certain morals clauses that otherwise could violate Title VII of the Civil Rights Act of 1964. The court declined to certify a class of church-type employers such as plaintiff Bear Creek Church, but did so by virtue of concluding that the religious exemption to Title VII permits them to enforce a morals clause.

Section 702(a), exempts "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." 42 U.S.C. § 2000e-1(a). "Religion" is defined to include "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000e. Accordingly, departing from two other recent decisions reported in past issues, the court ruled that the plain text of the exemption "is not limited to religious discrimination claims; rather, it also exempts religious employers from other forms of discrimination under Title VII, so long as the employment decision was rooted in religious belief." Therefore, a "religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice or belief."

The court added that the structure of the Title VII religious exemption supports this interpretation. Besides the religious exemption in § 2000e-1(a), a second exemption covers those with "alien" employees in § 2000e-1(a). Title VII provides no limitation to the alien exemption. Accordingly, "[i]f the religious exemption were somehow limited only to certain types of Title VII claims (i.e., of religious discrimination), one would expect the alien exemption to have a parallel limitation (i.e., claims of race or national origin discrimination), but it does not. The court also analyzed the Bostock opinion in an effort to determine whether the test for forbidden gender discrimination is favoritism that disadvantages one sex as compared to another or gender blindness. The court found ambiguity and echoes of both; therefore, the court concluded that the proper test must be favoritism, plus blindness to sex if the secondary trait is homosexuality or transgenderism. Put otherwise, "if the secondary trait at issue is homosexual or transgender identity, then the employer must satisfy both the favoritism and the blindness test."

Applying this test, the court examined several policies of the All Opposing and Religious Business-Type Classes regarding sexual conduct, dress codes and restrooms and determined that they do not violate Title VII, but decided their policies concerning bisexual conduct, sex-reassignment surgery and hormone treatment do violate Title VII. Both classes require their employees to refrain from certain sexual activities such as sodomy, premarital sex, adultery and any other kind of sexual activity that occurs outside the context of a marriage between a man and a woman. "Because these prohibitions do not apply exclusively to bar homosexual conduct, the court finds that so long as the prohibitions apply evenly to men and women, the employer does not favor one biological sex over the other, and therefore does not violate Title VII."

Concerning dress codes, the All Opposing Employers Class enforces a dress code to uphold professionalism in the workplace, while plaintiff Braidwood Management Inc. and the Religious Business-Type Employer Class enforce dress codes in accordance with their religious beliefs about biological sex. For example, men may not wear earrings, but women may. Men who have customer contact must wear a tie and slacks, but women may not. Women can wear skirts, blouses, shoes with heels and fingernail polish, but men may not. According to the court, "[t]hese rules apply evenly to those who identify with their biological sex and to transgender individuals." Therefore, the court determined that these rules are lawful.

The All Opposing and Religious Business-Type Classes also prohibit employees from using a restroom designated for the opposite biological sex. "Like sex-specific dress codes, sex-specific bathrooms do not treat one sex worse than the other." Therefore, the court determined that these policies are lawful. Furthermore, the court ruled that "employers may have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex." For this additional reason, the court determined that separate bathrooms for opposite biological sexes are lawful.

Immigration

R-1 Applicant States Claim Against USCIS Under RFRA in Relation to Compensation Structure

The Immigration and National Act allows ministers and other religious workers to enter and stay in the U.S. under a non-immigrant visa, known as an R-1 visa, for up to five years. The petitioner must establish that the R-1 applicant has been a member of the same denomination as the petitioner for at least two years preceding the petition and demonstrate an intention and ability to compensate the R-1 applicant.

In National Capital Presbytery v. Mayorkas, No. 18-2681, 2021 WL 4860621 (D.D.C. Oct. 19, 2021), the director of the U.S. Citizenship and Immigration Services (USCIS) California Service Center denied the renewal petition of the National Capital Presbytery (NCP) because, inter alia, NCP failed to prove that it intended to compensate Rev. Lal Engzau, failed to show it controlled the funds of Mizo Presbyterian Church or could legally require Mizo to compensate him, and changed its compensation package so as to combine salary, housing and utility payments into a salary.

On appeal to the USCIS Administrative Appeals Office (AAO), NCP objected that its decision to petition for Rev. Engzau's visa rather than Mizo was a matter of ecclesiastical governance and, therefore, religious exercise and requested an exemption from USCIS's requirement that Mizo instead of NCP act as petitioner. The AAO affirmed the director's decision, whereupon the matter moved to the court.

The court granted in part the plaintiffs' cross-motion for summary judgment because "the government's action here implicates religious exercise by interfering with NCP's decision to employ Rev. Engzau as its minister and compensate him as it chooses." The court did not doubt that the rule at issue has as its purpose preventing fraud or that this was a compelling interest, but noted that the government did not allege fraud and, thus, could not show a compelling interest in denying NCP's petition for the reasons asserted. The court granted summary judgment to the defendants on the plaintiffs' Administrative Procedure Act (APA) and mandamus claims because the plaintiffs had an adequate remedy under RFRA.

Church Autonomy

Parents Qualify for Transportation Benefits to Send Children to Private School

In St. Augustine Sch. v. Underly, No. 17-2333, 2021 WL 5998534 (7th Cir. Dec. 20, 2021), the plaintiffs sought to qualify for transportation benefits for their children attending St. Augustine School. Wisconsin provides transportation benefits to most of its school-age children, but it limits those benefits to only one private school "affiliated or operated by a single sponsoring group." The then-state superintendent of public instruction and now Wisconsin governor, Tony Evers, decided that St. Augustine School, which describes itself as Catholic but independent of the church's hierarchy, is "affiliated with or operated by" the same sponsoring group as St. Gabriel High School, which is run by the Archdiocese of Milwaukee and therefore indisputably Catholic. In 2018, the Seventh Circuit agreed that the two schools were affiliated. The U.S. Supreme Court vacated that decision and remanded the case to the Seventh Circuit for further consideration in light of Espinoza v. Montana Dep't of Revenue, 140 S.Ct. 207 (2020).

On remand, the Seventh Circuit asked the Wisconsin Supreme Court for guidance on the proper way to determine "affiliation" under state law. The Wisconsin Supreme Court ruled that in determining whether schools are affiliated with the same religious denomination, the superintendent is not limited to consideration of a school's corporate documents but may also consider the professions of the school with regard to the school's self-identification and affiliation; however, the superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices or teachings.

Applying this test, the Seventh Circuit ruled that the superintendent's decision was not justified by neutral and secular considerations but instead rested on a doctrinal determination. "[W]e can find no reason why the state was entitled to accept St. Augustine's self-characterization as Catholic, while at the same time to reject its vociferous insistence that its understanding of what it means to be Catholic is significantly different from that of the diocesan schools." The Seventh Circuit reversed the district court and remanded the case for determination of the amount of monetary damages to which the plaintiffs may be entitled or what type of injunctive relief is proper.