Second Circuit strikes down Department of Education vaccine mandate as unconstitutional

The Second Circuit has enjoined the City of New York from enforcing a  mandatory vaccination order against people who work for the public schools. The Court reasons that the religious accommodation provisions are probably unconstititional

The case is Kane v. DeBlasio, issued on November 28. The Second Circuit rarely issues full opinions over the weekend, but this one came out on Sunday, less than a week after oral argument. The expeditious ruling reflects the urgency of the case, yet another in the Covid-19 rulings that the courts have been grappling with for more than a year, as judges try to balance constitutional standards with the public interest in stopping the spread of the virus.

The Department of Education order, issued on August 24, said that all DOE staff must receive at least one dose of the vaccine by September 27. Unvaccinated employees would be placed on leave without pay without losing their health insurance. Since this order omitted any provision for religious accommodations, the United Federation of Teachers took the case to an arbitrator, who issued accommodation standards that allowed employees to submit a request that is "documented in writing by a religious official," such as clergy. 

Under the arbitrator's ruling, the accommodation request would be denied if "the leader of the religious organization has spoken publicly in favor of the vaccine," as discerned from the media, including an online source. The request would also be denied if the objection is personal, political, or philosophical and not religious. I don't know where the arbitrator came up with these standards but the Court of Appeals (Livingston, Kearse and Lee) notes that the City's lawyers conceded on appeal that the arbitrator's ruling was "constitutionally suspect." Concessions like that are taken into account by judges, who appreciate the lawyers' candor.  

The Court of Appeals finds that the vaccine mandate is not unconstitutional on its face, as it does not directly single out people for their religious views and it also applies to everyone, whether they are religious or not. But the arbitration award likely violates the religious freedom provisions of the Constitution, for a variety of reasons.

First, the arbitration ruling allows City officials to pass judgment on the legitimacy of someone's religious beliefs, as the reasonable accommodation test devised by the arbitrator provides that "exemption requests shall be considered for recognized and established religious organizations" and requests will be denied if your religious leader has spoken publicly in favor of vaccines. Courts and arbitrators cannot deny a religious accommodation based on someone else's religious views, even a religious leader's views. 

In addition, the accommodation standards have been applied differently by other arbitrators in reviewing religious accommodation requests. These decisionmakers appears to have substantial discretion in making these decisions. That is improper under the First Amendment's religion clause. 

To win an injunction, you also have to show that, without the immediate injunction, you will suffer irreparable harm. Losing money is usually not enough to show irreparable harm. The Court finds in favor of the plaintiffs on this issue because they face the threat of permanent discharge from their public employment. You do not see this reasoning very often, and the Court further explains itself in footnote 18, noting this is an "unusual case" because (1) plaintiffs have shown the likely violation of their First Amendment rights, and (2) the accommodation procedures at issue in this case require the plaintiffs to forego a lawsuit to avoid harm and the City has consented to entry of an injunction that will provide for these claims to be promptly decided under constitutional procedures. 

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