Religion and the Law

Court Refuses to Block Maine Rule Categorically Denying Religious Exemptions from Healthcare Workers COVID Immunization Mandate


From Jane Does 1-6 v. Mills, decided yesterday by Chief Judge Jon Levy (D. Me.), upholding Maine's COVID vaccine mandate for healthcare workers, which lacks a religious exemption (compare the different result in Dr. A. v. Hochul in New York on Tuesday; I find this Maine court  decision to be more persuasive than the New York one):

The Plaintiffs object to receiving the COVID-19 vaccines based on their stated belief that "life is sacred from the moment of conception[.]" They contend that the development of the three COVID-19 vaccines employed or benefitted from the cell lines of aborted fetuses. Specifically, the Plaintiffs object to the Moderna and Pfizer vaccines because both are mRNA vaccines which, the Plaintiffs claim, "have their origins in research on aborted fetal cells lines." Plaintiffs also object to the J&J vaccine, asserting that aborted fetal cell lines were used in both its development and production. They allege that the use of fetal cell lines to develop the vaccines runs counter to their sincerely held religious beliefs that cause them to oppose abortion.

In their responses to the Plaintiffs' motion seeking preliminary injunctive relief, the Defendants have not challenged the sincerity of the Plaintiffs' asserted religious beliefs or that those beliefs are the reason for the Plaintiffs' refusal to be vaccinated. I therefore treat these facts as established for purposes of deciding the Preliminary Injunction Motion.

The Court held that the law was a religion-neutral, generally applicable requirement and thus not subject to strict scrutiny under the Free Exercise Clause:

[T]he COVID-19 vaccine mandate challenged here is facially neutral. Neither the applicable statute nor the Rule mention religion, even by implication. Operating in tandem, they require that all healthcare workers employed at designated healthcare facilities receive the COVID-19 vaccination. They do not treat the COVID-19 vaccine differently than any other vaccinations mandated under Maine law….

The Plaintiffs contend that the COVID-19 vaccine mandate is not neutral because the removal of the religious exemption from the Rule "specifically target[ed] Plaintiffs' religious beliefs for disparate and discriminatory treatment." They assert that "Maine has plainly singled out religious employees who decline vaccination for especially harsh treatment (i.e., depriving them from earning a living anywhere in the State), while favoring employees declining vaccination for secular, medical reasons."

This argument mirrors claims made recently by healthcare providers challenging New York's COVID-19 vaccine mandate, which also did not provide for religious exemptions. Dr. A. v. Hochul (N.D.N.Y. Oct. 12, 2021). However, the challenged New York regulation is distinguishable from Maine's COVID-19 vaccine mandate, because the New York regulation originally provided for a religious exemption which was then removed only a few days before the requirement became effective; additionally, New York provides religious exemptions to other mandated vaccinations for healthcare workers. For these reasons, the court determined that the intentional, last-minute change to the language in the New York regulation was a "religious gerrymander" that required strict scrutiny.

In contrast, the Maine Legislature removed the religious exemption as to all mandated vaccines by amending 22 M.R.S.A. § 802(4-B) in 2019. Following the unsuccessful People's Veto held in 2020, DHHS removed the religious exemption from the Rule in April 2021 to conform the Rule to the 2019 statutory change. This revision pre-dated the COVID-19 vaccine requirement and served to ensure that the Rule was consistent with Maine law. The history associated with the revision of the Rule does not demonstrate animus toward religion….

In Tandon v. Newsom (2021), the Supreme Court granted injunctive relief against enforcement of a California regulation that prohibited indoor private gatherings of more than three households during the COVID-19 pandemic. The prohibition had the effect of restricting at-home religious gatherings while allowing groups of more than three households to gather in public settings, such as hair salons, retail stores, and restaurants. In enjoining the regulation's enforcement, the Court explained that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise."

"[W]hether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue." "Comparability is concerned with the risks various activities pose, not the reasons" motivating the activities. The Court's majority concluded that private indoor gatherings of three or more households were comparable to groups of the same or a greater number of households in public businesses, which were not prohibited by the regulation, and granted an injunction against the policy's enforcement pending appellate review.

Citing Tandon, the Plaintiffs argue that the Free Exercise Clause prohibits the treatment of "any secular activity more favorably than religious activity" (emphasis in original). This misstates Tandon's holding because it omits the crucial modifier—"comparable"—from the analysis of whether a secular activity has been treated more favorably than a religious activity.

In the unique context of a vaccine mandate intended to protect public health, there is a fundamental difference between a medical exemption—which is integral to achieving the public health aims of the mandate—and exemptions based on religious or philosophical objections—which are unrelated to the mandate's public health goals. The risks associated with the two are not comparable. Reducing the risk of adverse medical consequences for a high-risk segment of the population is essential to achieving the public health objective of the vaccine mandate. A religious exemption would not address a risk associated with the vaccine mandate's central objectives. Under Tandon's reasoning, rational basis review applies.

Tandon is distinguishable from this case in another respect. The vaccination requirement challenged here does not prevent the Plaintiffs from exercising their religious beliefs by refusing to receive the COVID-19 vaccination. In contrast, in Tandon interference with the free exercise of religion was direct because the statute prevented like-minded persons from gathering together to perform religious rituals. Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs' refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs….

Additionally, in probing for covert animus, what matters is the State's motive in removing the vaccine exceptions for religion and philosophy from the statute in 2019 because it was then—not in 2021 as Plaintiffs assert—that the change took effect. The Plaintiffs have not offered any reasoned explanation as to why Maine's COVID-19 vaccine mandate for healthcare workers should be viewed as targeting religious beliefs while vaccines for other communicable diseases that may have involved fetal cell lines in their development or production should not. The record establishes that the Maine Legislature's object in eliminating the religious and philosophical exemptions in 2019 was to further crucial public health goals, and nothing more.

Specifically, the Legislature considered data establishing that it was the religious and philosophical exemptions to mandatory vaccines that had prevented Maine from achieving herd immunity as to several infectious diseases, which is a prerequisite to eliminating those diseases. Measles, for example, requires a 95% population-level vaccination rate, and this was undermined in the years prior to 2019 by the large percentage of unvaccinated persons resulting from the religious and philosophical exemptions…. "… The average philosophical and religious exemption rate for kindergarten-aged students in Hancock County, ME was 8.7 percent…. There are schools [in Hancock County] experiencing non-medical exemption rates as high as 33.3 percent." … "[N]on-medical exemptions, which include religious and philosophical reasons, were reported at 5.0% for Maine, compared to the national rate of 2.0%." Medical exemptions, in contrast, accounted for 0.3% of the overall exemption rate….

The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine's core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest—such as the uniformity of appearance of uniformed officers considered in Fraternal Order of Police—over religious interests. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs.

The medical exemption applicable to the COVID-19 vaccine and the other vaccines required under Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate's general applicability….

The court also concluded that, even if the mandate were judged under strict scrutiny, it would pass:

Curbing the spread of COVID-19 is "unquestionably a compelling interest." … The record establishes that "[t]he gold standard to prevent and stop the spread of communicable diseases, including COVID-19, is vaccination." High vaccination rates minimize the number of unvaccinated individuals in group settings—such as healthcare environments—which ultimately facilitates population-level immunity and prevents outbreaks of these diseases both within these settings and in the general population. Achieving the high levels of vaccination needed to establish population-level immunity is crucial to protect the health of the most vulnerable individuals, including "individuals with weakened immune systems, infants too young to be vaccinated, and persons unable to be vaccinated [for medical reasons]." …

The Plaintiffs' sole challenge to the scientific rationale put forward by the State Defendants for the vaccine mandate is based on the Plaintiffs' citation to an article published in National Geographic Magazine that reports on a preliminary study that found that vaccinated persons with breakthrough COVID-19 infections can transmit the virus. This preliminary finding, however, does not address the broader question of whether COVID-19 vaccinations reduce the risk of people spreading the virus that causes COVID-19….

Plaintiffs further contend that the COVID-19 vaccine mandate is not the least restrictive means of achieving the State's goal to protect public health and the healthcare system from communicable disease. They argue that there are alternatives to vaccination that would not restrict their religious beliefs, and that Maine has not demonstrated that these alternatives would not achieve the objectives of the Rule. Plaintiffs specifically point to the use of PPE [personal protective equipment, such as masks] and frequent testing as less restrictive tactics that Maine could employ.

The record demonstrates that PPE and regular testing are not sufficient to achieve Maine's compelling interest in stopping the spread of COVID-19. Regular testing, an alternative method proposed by the Plaintiffs, was considered and ultimately rejected because "regular testing for the presence of the virus in employees is insufficient to protect against the Delta variant." The speed of the Delta variant's transmission outpaces test-result availability. With weekly or twice-weekly testing, "[a]n employee who tests negative on a Monday morning could be exposed that afternoon, and, within 36 hours, could be spreading the virus to others over the course of the several days until the next test." Further, "[b]ecause test results are not available for at least 24 hours, and sometimes up to 72 hours, daily PCR testing is insufficient for the same reasons." Daily testing, therefore, would require the use of rapid antigen tests, which are both less accurate and in short supply. Accordingly, regular testing is not an alternative measure that would effectively serve to stop the spread of COVID-19.

The use of PPE is also not an equivalent alternative measure. PPE is an important measure to prevent the spread of transmissible diseases, including COVID-19, but "it does not eliminate the possibility of spreading COVID-19, especially in healthcare settings." …

Next, Plaintiffs argue that Maine currently stands alone in the nation by not providing religious exemptions to vaccine mandates for healthcare workers, which necessarily demonstrates that less restrictive alternatives are available. The Plaintiffs reason that if every other state has been able to offer religious exemptions to COVID-19 mandates, Maine should as well. However, the Plaintiffs have not provided any scientific or expert evidence demonstrating the efficacy of the approaches adopted in other states. Maine may be one of the first states to conclude that it is wise to mandate vaccinations for certain healthcare workers, but it does not follow that other, less demanding approaches are equally effective or even appropriate given the circumstances presented in this state….

{At least two other states have adopted COVID-19 vaccine mandates which do not provide religious exemptions. In August 2021, the State of New York mandated COVID-19 vaccinations for healthcare workers in the state and did not include a religious exemption within the mandate. A preliminary injunction against the requirement was granted on October 12, 2021, Dr. A. v. Hochul; as previously discussed, this case is distinguishable from Maine's vaccine mandate. Rhode Island has also mandated COVID-19 vaccinations for healthcare workers and did not provide for religious exemptions to that requirement; a temporary injunction was denied on September 30, 2021.}

And the court rejected the claim that the Maine mandated violated the Title VII employer duty of reasonable accommodation of religious objectors:

Title VII requires that employers "offer a reasonable accommodation to resolve a conflict between an employee's sincerely held religious belief and a condition of employment, unless such an accommodation would create an undue hardship for the employer's business." … At the time of filing, Plaintiffs had not exhausted the administrative remedies available to them for their claim of unlawful employment discrimination, such as pursuing a complaint with the Maine Human Rights Commission or Equal Employment Opportunity Commission.

The Supreme Court has "set a high standard for obtaining preliminary injunctions restraining termination of employment." The case must present a "genuinely extraordinary situation" to support granting an injunction; allegations of "humiliation, damage to reputation, and loss of income" are insufficient to meet that standard, as are "deterioration in skills" and "inability to find another job." Courts generally do not grant preliminary injunctions to prevent termination of employment, because "the termination … of employment typically [is] not found to result in irreparable injury." Injuries incurred in employment discrimination claims may be addressed through remedies at law, such as reinstatement, back pay, and damages. In addition, in the ordinary course, Title VII violations must be addressed first through the administrative processes available under federal law.

The Plaintiffs have not shown that the injuries they have suffered or may suffer—the loss of their employment and economic harm—meet the high standard for preliminary injunctive relief required to restrain an employer from terminating an employee's employment…


NEXT: Religious Worship, Political Commentary About Religion, and Federal Power Under the Commerce Clause

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  1. When in 2016 Vermont eliminated nonreligious objections to vaccination, the number of religious objections soared. IOW, the most of the religious objectors were full of shit. They were grabbing onto any excuse they could find to resist vaccination. The same would undoubtedly occur with the Covid vaccine.

    1. I had the same thought. It's just common-sense.
      A: "The only way for you to get Desired Outcome is to claim D. You will not get Desired Outcome if you claim A, B, C, E, or F."
      B: 'Okay, I claim D, then.'

      I'm not making a political point. I have no doubt that this "What will accomplish my desired goal?" approach spans any political or ideological spectrum.

    2. Even if true (and it certainly is), that doesn't change the rights and issues for the minority who sincerely hold their religious objections. The existence of fraud means that you need to get better at detecting and blocking fraud, not that you throw the baby out with the bathwater.

  2. Wow, a common sense approach to the issue.

    As for those persons in Maine who object to the vaccine on religious grounds, I humbly suggest they go back and re-examine their faith and its requirements that they care for their fellow men and women. But if they can find something in their religious teachings that say one honors God and their faith by spreading disease and pestilence and carrying a virus that can infect their community, well I will revise my position but until then . . .

    1. Sidney,
      you need not make a unfalsifiable claim to reject this absurd objection.

  3. I find this "religious objection rather absurd, especially with respect to the Pfizer-BionTech and the Moderna vaccines which at most used cells during trial tests at several tens (if not hundreds) of generations removed from any fetal tissue.
    The very people make this objection to COVID vaccines benefit – as do we all - from actions that resulted from killing other humans in anger less than ten human generations ago.

    1. The Pope seems ok with it.

      1. The Nazis ran experiments on concentration camp prisoners, some of which had to do with developing a protocol for safely recovering victims of extreme hypothermia. You can imagine the methodology. We resisted using, or even investigating, those protocols for decades because of the ethical problem of benefiting from such “research”. Many people died who might have lived if those protocols were in use, so that similarity exists as well. If you can’t see where a person might have concerns, go jump in a lake.

  4. The use of fetal stem cells lines is so ubiquitous that I doubt anyone can in good faith say they object to using products that in some way used these cells lines. The cell lines find use broadly in medicines but also in other biological research including food and cosmetics.

    I think this is why religious organization like the Catholic Church have really backed off on objection to vaccines and other research. The genie is out of the bottle and it just too hard to track it all in a good faith effort.

    1. The difficulty in identifying products that have used aborted fetus cell lines is not actually an argument against objecting to the use of products where the use of aborted fetus cell lines has been identified.

      1. The lack of interest in identifying products that have used "aborted fetus cell lines" is actually an argument that the objections being raised here are not sincere.

  5. There are some, very few people who have legitimate religious objections to vaccines, so they should be allowed to opt out. But what do you do about all those who will try to abuse the system by lying? You could make the exemptions quite hard to get, but courts frown upon questioning one's religious beliefs. So you are back to no exemptions and realize that a few will be given the short stick.

    1. No. You aren't. The fact that some may get away with falsely claiming a religious exemption does not in fact require you to deny religious exemptions to everyone. You can in fact accept that as the cost of not denying religious exemptions to those who sincerely hold them.

      The decision is quite poor on identifying what the cost of granting religious exemptions would be. The argument that doing so is not comparable to the cost of allowing medical exemptions is particularly glaring. It goes on at some length in the attempt to justify that claim, but it appears to me to be just a hash of ipse dixit. Why, again, should those who ought not be forced to take the vaccines for medical reasons not also be required to forfeit medical employment in their field in ME? The risk to patients from such individuals is just the same as for ones religiously exempted (and equally nugatory, IMHO).

      1. "The argument that doing so is not comparable to the cost of allowing medical exemptions "
        There you go with your own ipse dixit.

  6. As with eugenics, we'll someday look back on these mandates and shake our heads.

    1. Far more likely the opposite. History will take a dim view of those who have been refusing to take the vaccine spreading lies about it. The current politics that causes people to oppose all covid prevention measures will fade and what will be left is confused people in the future.

      1. Molly,
        History may also take a dim view of the people who treat as lepers those who have doubts about vaccination.
        The dynamics of this pandemics are not nearly as simplistic as many like to claim when urging vaccination. You have seen it on this blog that there is al lot more talk about the politics of vaccination than about actual evidenced-based medicine.

        1. People who have doubts care about evidence and expert guidance. People who have doubts don’t spread lies about vaccines. People who have doubts don’t try to prevent others from getting the vaccine. There are not many who have doubts any more, those who are left are actively anti-vax for ideological reasons.

          1. You keep talking about "lies" without identifying any.

            YOUR ideological reasons are all that is evident.

            1. Molly knows all about lies. Also prevarication, argument from authority, and the motte and bailey fallacy. She's an absolute expert on all that. All one has to do is read her commentary to see her familiarity there.

          2. "There are not many who have doubts any more..."
            There you go again.
            Your argument rests on an ipse dixit assertion.

  7. You will note that the court punted on the Title VII issue Without resolving it. And that’s the problem employers are going to face. The EEOC is demanding that employers grant religious exemptions to vaccination, thus putting employers in the uncomfortable position of having to determine what does and does not constitute a valid and sincere religious objection.

    One of my clients just had an employee object to COVID vaccination on purported religious grounds. The client responded by pointing out that the employee had just volunteered to receive hepatitis B vaccinations eight days earlier. The employee then retorted that he had a religious objection only to vaccines that he did not volunteer to receive. The client is not accepting this as a valid objection but the case could very well end up before the EEOC.

    1. " but the case could very well end up before the EEOC."...
      and thrown out.

  8. The challenge of the court to get fired and see if the discrimination claim succeeds reminds me of Dirty Harry asking "do you feel lucky?"

    I would not uphold these requirements under strict scrutiny, but I think they do pass the applicable standard.

  9. Citing Tandon, the Plaintiffs argue that the Free Exercise Clause prohibits the treatment of "any secular activity more favorably than religious activity" (emphasis in original). This misstates Tandon's holding because it omits the crucial modifier—"comparable"—from the analysis of whether a secular activity has been treated more favorably than a religious activity.

    Just an advocacy tip, but NEVER do this. If there's a legal test announced in a court decision, state it correctly, and deal with all the elements in some fashion. Omitting a crucial element is an absolute red flag for courts- even courts that may be sympathetic to your arguments.

  10. Southern Baptist Convention mandates COVID-19 vaccine for its missionaries

    several large churches have announced that they will not be granting any exemptions, including the Greek Orthodox Archdiocese of America, Evangelical Lutheran Church in America, and the Church of Jesus Christ of Latter-day Saints. Previously, Catholics, who are anti-abortion, expressed concern that coronavirus vaccine research used fetal cell lines. However, the vaccine itself does not contain any and the Vatican announced that Catholics may receive the vaccine in good conscience.

    So, unless you have prior documentation of being a Christian Scientist or the like, you're just full of shit.

    1. Courts may not decide whether a person claiming a religious belief is in fact full of shit. There was a case in Massachusetts where a judge took evidence about whether working on a holiday was in fact prohibited by an employee's religion. The appeals court said the judge should not have done that. The law has since been amended to be more protective of employees who want days off for religious reasons.

      1. That is the current approach. It is not likely to survive American progress, however.

  11. Curbing the spread of COVID-19 is "unquestionably a compelling interest." … The record establishes that "[t]he gold standard to prevent and stop the spread of communicable diseases, including COVID-19, is vaccination."

    1: Yes, the gold standard IS vaccination. But vaccination provides immunity to a disease, which the Covid shots do not. So they're not vaccines, and calling them such doesn't make it so (how many legs does a dog have, if you call a tail a leg? 4. because it doesn't matter what you call it, it's not a leg).

    2: MN is 84% vaccinated for Covid among the 18+ crowd:
    MN currently has more Covid cases than it did last April, when the State was mostly unvaccinated:

    So the claim that "getting the jab" "stops the spread of Covid" is a clearly false statement.

    So, since the opinion is based on lies (the shots are "vaccines") and statements that just aren't in congruence with reality, the opinion is trash.

    1. Sorry, 77.4% vaccinated. Point remains

    2. Oh, and more MN numbers:
      94.4% of MN 65+ are "vaccinated" (note that doesn't include the ones who previously had it, which since previous infection gives better protection that the "vaccine", means the "protected" percentage is actually higher than that)
      MN gives demographic numbers by age here:

      I happen to have the 10/3 numbers to compare against. 70% (70.04%, if you wish to be precise) of the Covid deaths in MN since Oct 3 have been in the 65+ crowd. While that's an improvement over the overall numbers (86%. but then, Waltz was one of the scumbag Dem Governors who ordered LTCF's to accept Covid+ people from hospitals, so Covid was murderous to the older population in MN at the beginning), it's nothing like what you would expect if the shot was huge protection.

      So no, there's no legitimate justification for the mandates.

    3. MN currently has more Covid cases than it did last April, when

      most people were confined to their homes.

      1. No, they weren't.

        They were wearing masks, which are pretty much useless, but in April of 2021 people went out all the time.

        I pulled data from 8/20/20, which is the 1st time MN published the age demographic data in the form they currently use, 3/4/21, a point when roughly 50% of the 65+ crowd had at least one shot, and now.

        For the 14 and under crowd (you know, the people not "vaccinated)" there were roughly 10k more cases from 8/20/20 to 3/4/21 than there were from 3/4/21 to last Friday.

        For every other age group, ti's been the other way. More cases, and for most more deaths.

        The data's all publicly available. The "Covid vaccines" haven't done jack shit to slow the spread of Covid

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