On May 15, 2023, the Ninth Circuit, in Keene v. City and County of San Francisco, in a ruling that may signal a return to some semblance of normalcy in the post-COVID-19 world, reversed a federal trial court in California’s denial of a request for injunctive relief by two former employees who were denied religious exemptions from their municipal employer’s vaccine mandate. While Keene is non-precedential and did not address the underlying claims on the merits of the employees’ statutory and ultimately constitutional questions, the Ninth’s Circuit’s order in favor of the two employees is noteworthy (even though the COVID-19 vaccine mandates have expired) because it represents a victory for religious freedom.
The two recently retired employees in Keene unsuccessfully challenged their city and county’s vaccine mandate because they refused to be inoculated on the basis that the COVID-19 shots and their boosters are, or may be, derived from stem cells of aborted fetuses. More specifically, the plaintiffs alleged that regardless of which pharmaceutical firm prepared and marketed the vaccines, and without naming any in particular—whether Johnson and Johnson, Moderna, and Pfizer, among others—stated being forced to receive the shots would have violated their sincerely held statutory and constitutional rights to the free exercise of their pro-life religious beliefs. The plaintiffs added that being forced to get vaccinated would have violated their rights to the free exercise of their religious beliefs because officials refused to accommodate them by allowing them to engage in the now widespread practice of working from home or wearing personal protective equipment at their offices.
The Ninth Circuit, in its brief analysis, made four important points in allowing the former employees’ claim of religious discrimination to proceed.
First, the panel rejected the trial court’s summary declaration that the plaintiffs had not “demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine.” Moreover, the panel rebuffed the trial court’s statement that “[t]here are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.” Instead, the Ninth Circuit acknowledged that “the record reflects that the COVID-19 vaccines are, albeit remotely, “derived” from aborted fetal cell lines. . . . This directly contradicts the district court’s conclusion.” In light of legitimate differences of opinion over whether COVID-19 vaccines use cells from aborted fetuses, it is disappointing that the trial court judge failed to engage in thorough review of the medical evidence in rendering such a summary order.
Second, the Ninth Circuit observed that the trial “court’s factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.” In other words, the panel returned the dispute to the trial court because the judge failed to apply the proper legal standards as to what it means to have a sincere religious belief. The Ninth Circuit thus directed the trial court to complete a more thorough analysis of whether public officials could have come up with way accommodate the plaintiffs’ religious beliefs.
The Ninth Circuit’s third point was that the trial court erred in denying the plaintiffs’ claim that by losing their jobs they had not suffered irreparable harms. In fact, the court retorted that the two women faced “a Hobson’s choice: lose your faith and keep your job, or keep your faith and lose your job.” How a judge could refuse to treat the loss of employment as not being an irreparable harm is tone deaf at best and driven purely by ideological biases at worst, two qualities that should not be present in a fair and impartial judiciary.
Fourth, the Ninth Circuit chided the trial court for its failure “to properly balance the equities and evaluate the public interest” because “there is no indication that the district court considered the public interest in enforcement of civil rights statutes.” The panel further reasoned that the trial court erred in failing to consider the protection against religious discrimination in the workplace as afforded by Title VII, the most far-reaching federal statute safeguarding the workplace rights of employees or the voluminous case law interpreting its provisions.
Keene is important because the Ninth Circuit’s rationale serves as a segue to reflections on broader questions about religious freedom under the First Amendment. The significant, simmering issue that it brings to the fore is in the form of a highly politicized expression often present in public discourse: “my body, my choice.” In other words, Keene raises an important question about what it means to be “pro-choice” in a broader context as well as the context of abortion. For example, “pro-choice” advocates disagreed vociferously with what they consider governmental intrusions by limiting access to abortion such as when the Supreme Court returned questions about its status and legality to the states in Dobbs v. Jackson Women’s Health Organization. However, in an admittedly different context, why does this freedom of choice over what one does with one’s body not work both ways, such as when dealing with vaccine mandates grounded in religious objections?
Why should governmental officials have the authority to order public employees to get vaccinated or lose their jobs, or deny others the ability to travel absent proof of having received heretofore untried COVID-19 vaccinations? If having choice is so important when it comes to abortion, then why is it apparently ignored when addressing whether or not individuals can avoid being subjected to receiving vaccines that could impact not only their health but also force them to violate their deeply held religious beliefs?
Tensions over the status of religious freedom are exacerbated amid debate over the effectiveness and potential side effects of the COVID-19 vaccines, regardless of who manufactured and/ or distributed the different vaccines. This issue is even more perplexing because in Keene governmental officials apparently ignored Title VII’s requirement that they had to try to accommodate the plaintiffs by making an effort to find a way allowing the women to honor their sincerely held religious beliefs. The whole controversy, and ensuing litigation, could have been avoided had officials conferred with the employees and reached a compromise when they requested the accommodation that they be permitted to perform their duties remotely or wear protective gear to the workplace.
Returning to the broader status of religious freedom (even if not directly related to Title VII) issues continue to persist on the extent to which people of faith—most often, but not exclusively, Christians in the United States—can freely live and profess their beliefs in the public square. For instance, controversies and litigation have arisen, as here in Keene, over employees’ rights to have their pro-life perspectives respected, to not working on the sabbath, and being able to wear distinctive religious garb in the workplace.
Another question impacting religious freedom, although framed under the First Amendment right to free speech, is whether people of faith can be compelled to violate their deeply held religious beliefs by being compelled to make their professional services available to those with whose values they disagree. At issue in 303 Creative v. Elenis is whether a Colorado statute can compel a wedding website designer “to speak or stay silent violates the free speech clause of the First Amendment.” The Supreme Court will soon resolve whether a divided Tenth Circuit had the authority to compel the website designer to choose to not make her services available to assist a couple plan for their “same-sex marriage” because doing so would have violated her Christian beliefs. Of course, this case is likely to apply to whether other professionals can choose to offer their services to people they select.
Religious freedom, often referred to as “the first freedom” in light of its being enumerated as the initial right in the First Amendment, is a constitutional cornerstone of American society. As such, it is crucial for all to respect religious freedom in its various manifestations. At the very least, then, because we live in a world where, unfortunately, another pandemic can seemingly break out at any time, legislators, policy makers, and employers, whether public or private, must be sure to balance public health needs and individual rights to choose in a wide range of settings. Balance is crucial even in an emergency because, as former Attorney General William Barr wisely stated, “Our federal Constitutional rights don’t go away in an emergency.”
Governmental officials must tread lightly in balancing the need to maintain public welfare by attempting to implement vaccine mandates during health emergencies and protecting the constitutional rights of Americans. Consequently, any restrictions governmental officials seek to impose on the rights of Americans must be drawn as narrowly as possible, meaning they must use the least restrictive means possible in achieving their ends. Even in emergencies, governmental officials must avoid unnecessarily limiting fundamental constitutional rights in such important areas as bodily integrity and exercising the First Amendment right to the free exercise of religion, matters at issue in Keene.
How disputes such as Keene play out will go a long way determining whether freedom of religion and of choice are truly viable options for all Americans or are becoming little more than empty platitudes when applied to people of faith.
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A Day late and a Dollar Short
First, do no harm, as it is never necessary or proper to destroy innocent human life, to save a human life.
Second, there is no legal or moral justification to mandate a vaccine that does not provide immunity or stop the spread of a particular disease, and has the potential to cause harm in certain vulnerable individuals.
Third, why has there been no accountability for those who caused severe physical, spiritual, psychological, mental, and emotional harm by failing to do the proper risk/benefit analysis, while locking down the healthy, and in some cases, failing to protect the elderly by directly exposing them to infected individuals that could have been treated in one of the numerous emergency temporary facilities whose beds remained empty, but instead, the choice was made to place infected individuals in various nursing facilities that housed the most vulnerable?
[T]here is no legal or moral justification to mandate a vaccine that does not provide immunity or stop the spread of a particular disease…”
I would say there is no legal/moral justification to mandate any vaccine ever. If it works, the person who got it is perfectly safe from said disease, and should be able to walk through a hospital ward of sick and/or dying people with no thought for his health. And if the vaccine does not work, then…it doesn’t work. And why are people trying to mandate it, except to enrich the pharmaceutical companies.
My body my choice is the exact same slogan used by the pro-choice people. Evidence as if more was needed that both sides of America’s (phoney) culture war are two sides of the same libertarian coin.
It’s addressed, even if briefly, in the article. Did you actually read it? The taking of an unborn child’s life is objectively evil. Period. The refusal to take a under-tested, experimental “vaccine” (as it doesn’t fit the traditional definition of a vaccine), under pressure, in a highly charged and (often purposefully) confused and chaotic context is a prudential decision. And now, nearing the middle of 2023, the many doubt, questions, and concerns that some of us had about the technology, efficacy, and morality are being borne out. (For the record, I am decidedly not libertarian; I’m far more of a Burkian-Kirkian-Augustinian paleo-conservative.)
When my man Trump pushed this through I knew it was to get reelected. Hold harmless for those pushing it as well. There should be a national push to get people in shape, starting with yours truly, in order to have better ability to fight off viruses – I’m still more concerned about the flu and I had covid pnem.
A “libertarian” Catholic, is an oxymoron, “4For it is impossible for those who were once illuminated, have tasted also the heavenly gift and were made partakers of the Holy Ghost, 5Have moreover tasted the good word of God and the powers of the world to come…”, to not believe that Christ’s Sacrifice On The Cross will lead us to Salvation, but we must desire forgiveness for our sins, and accept Salvational Love, God’s Gift Of Grace And Mercy; believe in The Power And The Glory Of Salvation Love, and rejoice in the fact that No Greater Love Is There Than This, To Desire Salvation For One’s Beloved.
“Hail The Cross, Our Only Hope.”
A libertarian Catholic is not an oxymoron. If you’d like to learn more, perhaps start with Stephanie Slade: https://reason.com/podcast/2022/02/23/stephanie-slade-what-kind-of-libertarian-are-you/
With all due respect, you are simply mistaken.
Catholics must desire Salvation for “me and for thee”.Love exists in relationship. Only The Truth Of Love, Our Savior, Jesus The Christ, can set us free and lead us to Salvation.
“4For it is impossible for those who were once illuminated, have tasted also the heavenly gift and were made partakers of the Holy Ghost, 5Have moreover tasted the good word of God and the powers of the world to come…”, to not believe that Christ’s Sacrifice On The Cross will lead us to Salvation, but we must desire forgiveness for our sins, and accept Salvational Love, God’s Gift Of Grace And Mercy; believe in The Power And The Glory Of Salvation Love, and rejoice in the fact that No Greater Love Is There Than This, To Desire Salvation For One’s Beloved.
“Hail The Cross, Our Only Hope.”
Perfect Love does not divide, it multiplies, (Filioque), as in the Miracle Of The Loaves and Fishes.
Amazing you hypocrites. You don’t want the government to tell you want do during a health crisis (your body, your choice) and yet you think it’s your right to tell people what they can and cannot do with their bodies because of your religious beliefs.
Rick: If this passes for a smart comment in your neck of the woods, I suggest you get out a bit more, open a book (a dictionary or Strunk and White would be good), and contemplate the nature of rights, reality, personhood, and freedom.
What was the health crisis?
A virus that was an important factor in the deaths of more than a million Americans and that has left another couple of million severely sick.
Was it the virus that killed so many people, or was it human intervention? In other words, would a lot less people have died if we had done nothing? We know that many deaths were caused in the hospital by the use of ventilators. We also know that telling people to stay inside also increased your chances of getting sick.
Would we have been better off doing nothing? Undoubtedly so. How can many third world countries who did nothing have barely been affected by Covid? The answer is clearly our interventions (as was the case with the Spanish Flu, where a ton of deaths are now attributed to iatrogenic causes).
History has repeated itself once again.
Rick, if it’s strictly about my body, perhaps but even then, if I try to jump off a bridge people will generally try to stop me.
Another human’s body, nope. My bodily rights end where another human being begins.
“While Keene is non-precedential and did not address the underlying claims on the merits of the employees’ statutory and ultimately constitutional questions, the Ninth’s Circuit’s order in favor of the two employees is noteworthy (even though the COVID-19 vaccine mandates have expired) because it represents a victory for religious freedom.”
It somewhat represents a victory for justice. Now the judge who made the mistake ought to be disqualified, impeached, and a new judge assigned.
Technically, there is no such thing as religious freedom. Objectively, a person is bound to become Catholic.
“In fact, the court retorted that the two women faced “a Hobson’s choice: lose your faith and keep your job, or keep your faith and lose your job.” How a judge could refuse to treat the loss of employment as not being an irreparable harm is tone deaf at best and driven purely by ideological biases at worst, two qualities that should not be present in a fair and impartial judiciary.”
There is no such thing as reparable harm. POSSIBLY compensation (e.g. judicial corruption) at some point in the distant future won’t stop a person from starving or going into debt (damage credit?) now. And there are lost opportunities (i.e. opportunity costs) associated with a disruption with regards to normal income. Also, a job is more than just an income. There are educational, social, and possibly other benefits.
The Ninth Circuit’s statement is incorrect. What would happen is a person would be induced into committing a sin. Losing faith is not the same as committing a sin. There are sins against the faith, but not every sin is such.
“The panel further reasoned that the trial court erred in failing to consider the protection against religious discrimination in the workplace as afforded by Title VII, the most far-reaching federal statute safeguarding the workplace rights of employees or the voluminous case law interpreting its provisions.”
This is mistaken. Title VII is illegitimate because The Civil Rights Act of 1964 is unconstitutional by the Tenth Amendment. That said, religious discrimination isn’t always just. The relevant statutes here are any in the state of California.
“Why should governmental officials have the authority to order public employees to get vaccinated or lose their jobs, or deny others the ability to travel absent proof of having received heretofore untried COVID-19 vaccinations?”
In this case, it is illegitimate/abusive “authority” acing under color of law. Did Stalin have authority to punish those who justly opposed him politically? No.
The answer to the question is the heresy of legal positivism, the fraud of the germ theory and fraudulent mathematical models based on the same, and the likely fraud that is/was the COVID-19 “pandemic.”
“The whole controversy, and ensuing litigation, could have been avoided had officials conferred with the employees and reached a compromise when they requested the accommodation that they be permitted to perform their duties remotely or wear protective gear to the workplace.”
Accommodation with tyranny is a part of the problem. Have people forgotten the lessons of civil “disobedience” from the past century?
“For instance, controversies and litigation have arisen, as here in Keene, over employees’ rights to have their pro-life perspectives respected, to not working on the sabbath, and being able to wear distinctive religious garb in the workplace.”
I recently came across a job with some of the most horrible working conditions. Imagine working physical labor in a warehouse between 0 and -15 degrees Fahrenheit, either second or third shift, and with only two non-weekend days off. So much for respecting the sabbath (i.e. Sunday) – or the well being of workers. This particular company has been targeted for boycott for pro-unborn-child-murder support.
“Even in emergencies, governmental officials must avoid unnecessarily limiting fundamental constitutional rights in such important areas as bodily integrity and exercising the First Amendment right to the free exercise of religion, matters at issue in Keene.”
I am taking this on authority (And I have a likely correct source.), but, my understanding is that the civil authority has no authority over the Catholic Church with regards to Her operations. This appears to be how the Catholic Church exercises Her EXCLUSIVE jurisdiction with regards to controversies surrounding marriages (i.e. man+woman) where at least one spouse is baptized. (FYI a potential First Amendment case.) And this extends to the worship of the Holy Sacrifice of the Mass and the administration of the sacraments.
If the Catholic Church has tolerated coercion of the civil authority by means of concordats, that doesn’t make the wrong right. I doubt the wisdom of such accommodations with tyranny.
It is important to note that although we must awake from sleeping in Gethsemane, this is not the same as being a “woke”.
A “woke” Catholic is an oxymoron. It is those who claim to be “woke”” Catholics, are attempting a Coup D’ETAT in both our Country and The Catholic Church because the”woke” desire to Render onto Caesar, what belongs to God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, The Author Of Love, Of Life, And Of Marriage.
“If having choice is so important when it comes to abortion, then why is it apparently ignored when addressing whether or not individuals can avoid being subjected to receiving vaccines that could impact not only their health but also force them to violate their deeply held religious beliefs?”
Because pregnancy isn’t contagious, and science trumps your beliefs. Your narcissistic hypocrisy is toxic to the rest of us. We need a vaccine against religion!
Your freedom to exercise your religion does not give you the right to force others to live according to your beliefs or to discriminate against them when they don’t. Do you really believe that’s what Jesus was teaching?
“We need a vaccine against religion!”
Lenin, Stalin, and Co. thought the same thing. That turned out swell–that is, if tens of millions killed, countless others imprisoned/tortured, loss of freedom, poverty, and social collapse are your thing.
“Do you really believe that’s what Jesus was teaching?”
Oh, please, do lecture us on what Jesus was teaching! Phhwww.
Pope Francis himself urged people to get vaccinated. Mandates might be a providential question, but the vaccines for the most part aren’t: https://www.catholicnewsagency.com/news/249960/vatican-reaffirms-support-for-covid-19-vaccines
Pope Francis says a lot of dumb things.
Indeed he does
Steve, if the vaccine does not stop you from getting Covid, which they once said it would, and if it doesn’t stop you from transmitting Covid, which they once a said it would, why would anyone inject themselves with a novel drug that doesn’t do any of the things that vaccines are supposed to do?
Why did they change the definition of a vaccine to accommodate mRNA “vaccines”?
This article contains a common error: namely, the mRNA covid vaccines were NOT made with stem cells. Stem cells have the potential to become any type of cell, such as bone, teeth, organ, skin, etc., which renders them unsuitable for vaccine use. These vaccines were prepared using derivatives of fetal lung cells from an abortion done about 1973. The original cells were treated in such a way that they became competent to replicate under cell culture conditions, and thus multiply. After going through dozens of such replications for decades, these replication-competent cells have become a stock reagent for much viral work and other types of laboratory work that requires cells of a certain type. They can be purchased from the American Type Culture Collection. Scientists purchase a small quantity of such cells, replicate them as much as necessary, and then freeze them for later use. At this point, one may argue whether these are still fetal cells or not. Additionally, the abortion was not done for the purpose of producing these cells. Rather the cells are an unintended byproduct of the abortion. One could argue that at least something good (these useful cells) has come of the abortion. The connection of these vaccines to abortion is very, very remote.
Clarification of my previous comment: the error is in calling the cells used for the mRNA vaccines “stem cells.” They are not. The article referenced for this terminology does not refer to these cells as “stem cells” but too many Catholic articles use such terminology. The article referenced, however, does err is describing the coronavirus as having DNA. It does not.