The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is the threat of termination for failure to get vaccinated irreparable harm? In John Does 1-3 v. Mills, Justice Gorsuch's dissent answered that question, yes. Justice Barrett's concurrence seemed to assume the answer was no. The argument goes, if a person is wrongfully terminated, a court can later order reinstatement, backpay, and restoration of other benefits (such as seniority). Last month, a federal district court reached a similar conclusion in a challenge to United Airline's vaccine mandate. (For a change, I am not writing this post aboard a United flight). This court found that there was no irreparable injury because the employees could be awarded backpay.
The United employees sought an injunction pending appeal from the Fifth Circuit. On Monday, a divided three-judge panel (Stewart, Haynes, and Ho) denied the injunction. The majority endorsed the reasoning of the District Court's decision, and also cited the Supreme Court's new order in Dr. A v. Hochul. This shadow docket ruling had no reasoning, but apparently had precedential value.
Judge Ho dissented, and articulated a very different conception of irreparable injury.
First, Judge Ho acknowledges that in the "garden variety case," the threat of termination is not an irreparable injury. But this case is different:
United is not trying to fire anyone. Instead, the company is trying to make its employees obtain the COVID-19 vaccine, notwithstanding any religious objections they might have. Forcing individuals to choose between their faith and their livelihood imposes an obvious and substantial burden on religion. Make no mistake: Vaccine mandates like the one United is attempting to impose here present a crisis of conscience for many people of faith. It forces them to choose between the two most profound obligations they will ever assume—holding true to their religious commitments and feeding and housing their children. To many, this is the most horrifying of Hobson's choices. And it is a quintessentially irreparable injury, warranting preliminary injunctive relief.
I agree. This "crisis of conscience" distinguishes the COVID cases from conventional employment disputes.
Second, Judge Ho points out that the District Court's decision is inconsistent with recent circuit precedent concerning the OSHA vaccine mandate.
Indeed, just a few weeks ago, our court recognized that irreparable injury results when employees are forced to choose between their beliefs and their benefits. Our colleagues put it this way: "It is clear that a denial of the petitioners' proposed stay would do them irreparable harm," because the federal vaccine mandate "threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s)" (or put another way, "no jab, no job"). BST Holdings,L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021).
The panel here seemed to disregard the irreparable injury analysis from BST Holdings. I endorsed that analysis here.
Third, Judge Ho cites his January 2020 concurrence in Horvath v. City of Leander. This opinion, which concerned a vaccine mandate, was issued shortly before the COVID-19 pandemic exploded.
Shortly before the first official case of COVID-19 appeared in the United States, our court decided a case involving a religious objection to another vaccine mandate. A firefighter objected to taking both the flu vaccine and the TDAP vaccine on religious grounds. The city granted his first request for a religious accommodation, but denied the second. I wrote that a vaccine mandate that does not take faith-based objections into account may substantially burden religious liberty by "forc[ing] citizens to choose between one's faith and one's livelihood." Horvath v. City of Leander, 946 F.3d 787, 799 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part). The same underlying principles should apply here.
I've been surprised that Horvath has not gotten more attention. In many regards, Judge Ho presaged the analysis from Justice Gorsuch's dissent in John Does 1-3 v. Mills. Ho wrote:
Under Smith, government may regulate religious activity, without having to satisfy strict scrutiny, so long as the regulation is a "neutral law of general applicability." 494 U.S. at 879. That rule does not apply, however, where government grants exemptions to some but not to others. Religious liberty deserves better than that—even under Smith. Based on the record in this case, it is far from clear that the city's policy is a "neutral law of general applicability."
Specifically, the city granted exemptions in some contexts, but not others:
In addition, the record confirms that the city is apparently willing to grant exemptions in arguably analogous situations, such as under its flu vaccine policy. Yet for no reason—or at least none that is apparent from the record—the city denied that same request for a religious exemption on behalf of the same firefighter when it came to the TDAP vaccine. Remand would give the city the opportunity to demonstrate either that the flu vaccine is somehow not analogous to the TDAP vaccine (and that the vaccine policy is therefore neutral and generally applicable)—or that it has a compelling interest in insisting that Horvath take the TDAP vaccine, but not the flu vaccine.
Judge Ho was right, long before the pandemic began.
Finally, Judge Ho contends that monetary damages cannot remedy this injury:
It is difficult to imagine how a crisis of conscience, whether instigated by government or industry, could be remedied by an award of monetary damages. Take this case: The person who acquiesces to United's mandate despite his faith doesn't lose any pay. But he will have to wrestle with self-doubt—questioning whether he has lived up to the calling of his faith. Likewise, the person who refuses must also wrestle with self-doubt—questioning whether his faith has hurt his family, and whether living up to his commitments was worth sacrificing the interests of his loved ones. To hypothesize that the earthly reward of monetary damages could compensate for these profound challenges of faith is to misunderstand the entire nature of religious conviction at its most foundational level. And that is so whether the mandate comes from D.C. or the C-Suite.
Throughout the pandemic, I've found that many jurists "misunderstand the entire nature of religious conviction at its most foundational level." Perhaps the clearest statement of this misunderstanding came from Judge Easterbrook. He wrote, "Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways." The judiciary must do better.
In an appropriate case, hopefully soon, the Supreme Court should find that the threat of termination from a vaccine mandate is irreparable harm.