Plaintiffs in religious exemption lawsuits in Philadelphia and Connecticut this week received favorable rulings. Since May, at least 10 appellate courts have issued decisions in favor of employees who sued their employers over COVID-19 religious or moral exemptions or policies
By Brenda Baletti, Ph.D. | August 1, 2024 |The Defender
An appeals court on Monday ruled in favor of a former Philadelphia assistant district attorney who said she was wrongfully denied a religious exemption for the COVID-19 vaccine and subsequently fired when she didn’t get vaccinated.
On Tuesday, the Connecticut Supreme Court sent a case challenging Connecticut’s school vaccine religious exemption policy back to the Superior Court.
In addition to these two decisions, since May at least 10 appellate courts have issued decisions in favor of employees who sued their employers over COVID-19 religious or moral exemptions actions or policies.
‘Religious rights to refuse unwanted vaccination must be respected’
In April 2022, Rachel Spivack sued the City of Philadelphia and her former boss, District Attorney Larry Krasner, alleging he violated her First Amendment rights and the Commonwealth’s Religious Freedom Protection Act when he denied her COVID-19 vaccine religious exemption while allowing other types of exemptions.
The lower court sided with Krasner’s office and dismissed the case. However, the U.S. Court of Appeals for the 3rd Circuit this week reversed the lower court’s decision and sent the case back to the lower court for trial.
“We are grateful that the Appeals Court recognized that these important issues deserve a jury’s consideration,” attorney Lea Patterson, who argued Spivack’s case before the court, said in a press release. “No American should lose her job for living according to her sincerely held religious beliefs.”
During the pandemic, as an independently elected official Krasner could implement a series of policies governing COVID-19 mitigation measures in his office that were more restrictive than those instituted by the city.
Krasner’s office issued a vaccine mandate for all eligible employees in August 2021, about a month before Spivack, a non-unionized employee, began working there.
Spivack sought a religious exemption based on her Orthodox Jewish beliefs, submitting a letter from her rabbi and providing a detailed explanation of her religious beliefs, as per office policy.
Krasner said his office changed its policy between August 2021 and January 2022, deciding to categorically deny all religious exemptions without individual assessment.
He argued the law allowed him to deny exemptions based on religious beliefs if they created an undue burden on the office. However, whether he conducted individual assessments is one of the facts disputed in the case.
Krasner’s policy did allow a medical exemption for one employee and exemptions for unionized employees whose terms of employment are governed by their union contracts with the city rather than with his office.
However, Spivack was informed in March 2022 that she was denied accommodation in a form letter indicating she did not present a credible claim that her opposition to the vaccine is based on religious beliefs.
Spivack attempted to work with the office to find ways to keep her job without getting vaccinated, offering to mask and test weekly, but the office refused and terminated her employment on April 8, 2022.
Spivack sued Krasner and the city later that month. The District Court that first heard the case granted Krasner’s motion for summary judgment — or a ruling in their favor without a trial — saying there was no evidence his decision was based on religious intolerance.
In its decision issued Monday, the 3rd Circuit disagreed with the lower court, saying there were disputed facts that a jury should resolve.
A reasonable jury could find that Krasner’s comments “evince hostility toward religion that undermines” the neutrality of his office’s policies, or it could also reach the opposite conclusion, the ruling said. Therefore “neither party is entitled to summary judgment on neutrality” and the case should be heard by a jury.
Attorney Ray Flores, who was not involved in the case, told The Defender the decision to send the case back to a jury trial was significant. “When future mandates are being contemplated, universities, the government, the private sector and the military are all on notice that religious rights to refuse unwanted vaccination must be respected.”
‘A victory for religious freedom in Connecticut’
The Connecticut Supreme Court on Tuesday sent a case challenging Connecticut’s school vaccine religious exemption policy back to the Superior Court for further review.
Connecticut law, which requires students to receive certain immunizations before attending school, allows some medical exemptions and, until 2021, also allowed religious exemptions.
However, in 2021 state officials repealed the longstanding religious exemptions from childhood immunization requirements for schools, colleges and daycare facilities.
At the time lawmakers passed the appeal, Connecticut’s statewide school vaccination rate was among the highest in the nation and well above the 95% rate recommended by the Centers for Disease Control and Prevention (CDC). Lawmakers said they ended the exemption arguing the percentage of vaccinated kindergarten students was decreasing and the percentage of religious exemptions was growing.
The new rule allowed existing students who already had vaccine exemptions to keep them, but the repeal otherwise applied to all students in the state.
Two Connecticut parents, Keira Spillane and Anna Kehle, in 2021 sued the governor, the heads of the state’s Departments of Education and Public Health, and a local school and board of education, alleging the new policy violated their and their children’s rights to freely exercise religion, to equal protection of the laws and to free public education.
They asked the judge to find the law unconstitutional and to grant a permanent injunction against it.
The defendants filed motions to dismiss the case. The trial court denied the defendants’ motion to dismiss, agreeing with the plaintiffs that their claims regarding their state and constitutionally protected rights were valid.
The defendants appealed to the Connecticut Supreme Court, which reversed part of the lower court’s decision, dismissing five of six counts against the plaintiffs and allowing the school vaccination mandate to remain in place.
However, it sent the case back to the Superior Court to review the plaintiffs’ claims related to Connecticut’s Religious Freedom and Restoration Act.
“It puts under the magnifying glass the need of strict scrutiny. It’s not over yet,” according to Brian Marks, professor of law and public health at the University of New Haven School of Health Sciences, News8 reported.
“Our case has always centered around Connecticut’s Religious Freedom Restoration Act and our firm belief that the removal of the religious exemption is in clear violation thereof,” the plaintiffs’ attorney said.
“This decision is a victory for our plaintiffs and a victory for religious freedom in Connecticut and we look forward to pressing ahead with our injunction motion so that we can get these disenfranchised children back to school while we await our trial.”
Attorney General William Tong said in a statement:
“This merely dismisses most aspects of the challenge while allowing plaintiffs to continue to press one remaining part of their case in state court, where we will aggressively defend the state’s necessary and lawful actions to protect public health.”
‘Just huge’: 10 favorable decisions by 7 circuit courts of appeals in last 3 months
Since May, at least 10 appellate courts have issued decisions in favor of employees who sued their employers over COVID-19 religious or moral exemptions, actions or policies.
Attorney Warner Mendenhall, who wrote about the trend on his Substack, told The Defender, “I’ve been watching the law for a long time, and I’ve never seen something like this.”
“Ten decisions out of seven circuit courts of appeals in the last three months, that’s just huge,” he said.
The 3rd, 6th, 7th, 8th, 9th, 10th and 11th Circuit U.S. Court of Appeals have all issued such decisions in the last few months.
The turning tide has major significance for possible future mandates, Mendenhall said.
“They have created a really good foundation for us to build on going forward.” He added that the cases were setting a precedent for exemptions based on reasons of conscience, not only for religious claims.
The series of successes are partially tied to last year’s U.S. Supreme Court ruling in the case of Groff v. DeJoy, Mendenhall said.
In that case, a Christian postal worker sued the United States Postal Service for compelling him to work on Sundays to deliver Amazon packages, despite his sincere religious belief that Sundays should be devoted to worship and rest.
The Supreme Court ruled that if employers seek to claim they cannot provide an accommodation because it would impose undue hardship on the business — as per Title VII of the Civil Rights Act of 1964 — they must show that the burden “is substantial in the overall context of an employer’s business.”
“Prior to Groff, the employers only had to show minimal hardship to deny an accommodation for a religious exemption request,” Mendenhall said. The decision shifted the burden onto the employer to show that accommodating someone’s religious or medical exemption requests would cause substantial hardship.
After that decision, he said, people started winning their cases and the value of their settlement claims went up. “It strengthened thousands of cases,” he said.
Each of the cases that appellate courts refused to dismiss and sent back to the lower courts to be heard “has something to say that’s important,” Mendenhall said.
For example, in Doe v. Board of Regents of the University of Colorado, students who were denied religious exemptions sought an injunction against the university’s vaccine mandate while their case against the university proceeded in court.
A lower court denied their injunction but the 10th Circuit in May found they are likely to win their case and granted the injunction. In that case, Mendenhall said, they are arguing an employer cannot disqualify a claim by finding inconsistencies in a person’s belief.
“The only issue,” he said, “is whether they are sincere.”
In another example, a lawsuit challenging the Los Angeles Unified School District’s COVID-19 vaccine mandate will proceed after the 9th Circuit in June ruled the school district misapplied the precedent-setting U.S. Supreme Court Jacobson v. Massachusetts ruling because unlike “traditional” vaccines, the COVID-19 shots don’t prevent infection and transmission.
And this week, in the case of Passarella v. Aspirus the 7th Circuit reversed a lower court’s dismissal of a case against an employer who denied an employee’s religious claims, arguing the claims were based more on safety concerns than on religious beliefs.
The appellate court ruled that religious claims can be linked to secular reasoning and kicked the case back to the lower court for further proceedings.
Mendenhall named several recently finalized exemption cases with the plaintiff victories.
For example, an Alabama court ordered Hank’s Furniture Inc. to pay $110,000 to settle a case where an employee’s request for a religious vaccine exemption was denied and the validity of her beliefs disputed. The company will also have to adopt a new policy that will interpret religious accommodations broadly.
In another example, The U.S. Navy settled a long-standing lawsuit over its COVID-19 vaccine mandate, marking a partial victory for thousands of sailors, including Navy SEALs, who refused the vaccine on religious grounds.
Several other major cases continue to move through courts, including several military class action suits. Thousands of individual employment claims have been settled, Mendenhall wrote.
Brenda Baletti, Ph.D., is a senior reporter for The Defender. She wrote and taught about capitalism and politics for 10 years in the writing program at Duke University. She holds a Ph.D. in human geography from the University of North Carolina at Chapel Hill and a master’s from the University of Texas at Austin.