Updated at 7:00pm Eastern, Oct. 19, 2021 | United States Supreme Court Associate Justice Stephen G. Breyer denied a petition for emergency injunction made by a group of 2,009 Maine health care workers who are challenging Maine Gov. Janet T. Mills and her COVID-19 vaccine mandate. They argue Maine’s refusal to consider religious exemptions to the mandate violates their religious liberties and Title VII of the Civil Rights Act of 1964. Breyer denied the petition without prejudice, so it can be re-filed if lower courts don’t rule on the case merits by Oct. 29.
“We are pleased that the Supreme Court is ready to consider this case if we do not get relief at the First Circuit Court of Appeals or if the lower court does not rule by October 29,” said Matthew D. Staver, chairman of Liberty Counsel, a public-interest law firm that represents the health-care workers. “As of Monday, our case is now fully briefed at the court of appeals. We look forward to an expedited ruling. There is no question that Gov. Janet Mills cannot nullify federal law and the First Amendment to the U.S. Constitution.”
Liberty Counsel filed the emergency petition Oct. 15 after both the federal district and appeals courts refused to issue an injunction against what it described as the state’s “unconstitutional, unlawful and unconscionable” jab mandate. Maine policy requires health care workers get a COVID shot by Oct. 29 or face termination. Workers are not considered “fully vaccinated” until two weeks after the shot, so Oct. 15 was the last day they could take the COVID jab. Maine policy allows for medical exemptions, but as of Aug. 14, the state no longer permits religious exemptions, the legal filing said.
“The governor cannot override federal law and force health care workers to violate their sincerely held religious beliefs by forcing them to inject an experimental substance,” Staver said. “All Maine health care workers have the legal right to request reasonable accommodation for their sincerely held religious beliefs and forcing COVID shots without exemptions is unlawful.”
“For many years” in compliance with federal law, Maine permitted health-care workers to apply for and receive exemptions based on their sincerely held religious beliefs, the petition said. “Yet, on August 14, 2021, Maine stripped all protections for religious objectors to any vaccination requirement in conjunction with its emergency declaration that all health-care workers in Maine receive a COVID-19 vaccination,” the document said.
The original federal lawsuit filed Aug. 25 names Gov. Mills, Jeanne M. Lambrew, commissioner of the Maine Department of Health and Human Services; Nirav D. Shah, director of the Maine Center for Disease Control & Prevention; along with five health care providers. Plaintiffs are identified as Jane Does 1-6, John Does 1-3, Jack Does 1-1,000 and Joan Does 1-1,000. The case is John Does 1-3, et al. v. Janet T. Mills, Governor of Maine, et al.
The state has argued that the shot mandate is an important part of keeping health-care workers and patients safe from spread of COVID-19. According to Maine’s Division of Disease Surveillance, as of Oct. 13, staff vaccination rates include 91.6 percent in hospitals, 85.8 percent in nursing homes, 84.3 percent in intermediate-care facilities for the intellectually disabled, 88 percent in assisted housing and 92 percent in ambulatory surgical centers.
The U.S. District Court for the District of Maine denied a preliminary injunction in the case, and also denied an injunction pending appeal. The U.S. Court of Appeals for the First Circuit denied an emergency motion for injunction pending appeal. The lawsuit argues that the Maine vaccine mandate is a violation of Title VII of the Civil Rights Act and the Free Exercise Clause of the U.S. Constitution’s First Amendment.
“The seminal issue before this court can be boiled down to a simple question: Does federal law apply in Maine?” the Supreme Court petition reads. “Though the question borders on the absurd, so does defendants’ answer to it. Defendants have explicitly claimed to health-care workers in Maine, including plaintiffs, that federal law does not apply, and neither should they.”
Under the U.S. Constitution’s Supremacy Clause, federal law and the federal Constitution are supreme over state statutes and edicts. “And here, the federal law is clear: There can be no dispute that Title VII of the Civil Rights Act prohibits defendants from discriminating against plaintiffs on the basis of their sincerely held religious beliefs,” the petition said. It accused Maine of a “conspiracy and scheme” to discourage and prevent religious exemptions.
The petition cited another case of health-care workers suing a governor over a vaccine mandate. The U.S. District Court for the Northern District of New York issued a preliminary injunction Oct. 12 against Gov. Kathy Hochul and the state’s mandate for health-care workers. In that case, U.S. District Judge David N. Hurd wrote that Title VII “does not demand mere neutrality with regard to religious practices” but rather “it gives them favored treatment.” Hochul said the state will appeal Judge Hurd’s decision.
Liberty Counsel’s petition also cited a preliminary injunction issued against Western Michigan University, which denied religious exemptions to its shot mandate for student athletes. That injunction was upheld by the U.S. Court of Appeals for the Sixth Circuit. In that case, the courts ruled the denial of religious exemptions violated the Christian student athletes’ rights to free exercise of religion.
Liberty Counsel argued that because Maine allows medical exemptions to the shot mandate, the policy is not neutral or generally applicable. In such cases, courts apply a standard called strict scrutiny, which requires that governments must have a compelling need for their action and must prove they used the least-restrictive means to create a tailored solution. Judge Hurd ruled the New York shot policy would likely fail a strict scrutiny test. In the Western Michigan case, the appeals court said because the university offered to consider exemptions, strict scrutiny must be applied.
The petition said the same workers who bravely cared for patients suffering from COVID-19 for the past 18 months “have now been cast as evil villains for requesting exemption and accommodation from the governor’s edict for their sincerely held religious beliefs.”
“When we have demanded much of our health-care heroes, we owe them nothing less than the full measure of our own commitment to constitutional principles,” the petition reads. “Anything less would be desecrating the sacrifice these medical heroes made for untold numbers of people—including defendants—when the call of duty demanded it of them.”
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