From Does 1-6 v. Mills, decided yesterday by the First Circuit (Judge Sandra Lynch, joined by Judges Jeffrey Howard & David Barron); seems quite right to me:
When a religiously neutral and generally applicable law incidentally burdens free exercise rights, we will sustain the law against constitutional challenge if it is rationally related to a legitimate governmental interest. When a law is not neutral or generally applicable, however, we may sustain it only if it is narrowly tailored to achieve a compelling governmental interest.
To be neutral, a law may not single out religion or religious practices…. To be generally applicable, a law may not selectively burden religiously motivated conduct while exempting comparable secularly motivated conduct. “A law is not generally applicable if it ‘invite[s]’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions.'” Under that rule, if a state reserves the authority to “grant exemptions based on the circumstances underlying each application,” it must provide a compelling reason to exclude “religious hardship” from its scheme. Nor is a law generally applicable “if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” …
[The healthcare worker vaccination mandate] is facially neutral, and no argument has been developed to us that the state singled out religious objections to the vaccine “because of their religious nature.” The state legislature removed both religious and philosophical exemptions from mandatory vaccination requirements, and thus did not single out religion alone.
The rule is also generally applicable. It applies equally across the board. The emergency rule does not require the state government to exercise discretion in evaluating individual requests for exemptions. Unlike, for example, Sherbert v. Verner (1963), in which the government had discretion to decide whether “good cause” existed to excuse the requirement of an unemployment benefits scheme, here there is no “mechanism for individualized exemptions” of the kind at issue in Fulton. Instead, there is a generalized “medical exemption … available to an employee who provides a written statement from a licensed physician, nurse practitioner or physician assistant that, in the physician’s, nurse practitioner’s or physician assistant’s professional judgment, immunization against one or more diseases may be medically inadvisable.” No case in this circuit and no case of the Supreme Court holds that a single objective exemption renders a rule not generally applicable.
The rule is also generally applicable because it does not permit “secular conduct that undermines the government’s asserted interests in a similar way.” We conclude that exempting from vaccination only those whose health would be endangered by vaccination does not undermine Maine’s asserted interests here: (1) ensuring that healthcare workers remain healthy and able to provide the needed care to an overburdened healthcare system; (2) protecting the health of the those in the state most vulnerable to the virus—including those who are vulnerable to it because they cannot be vaccinated for medical reasons; and (3) protecting the health and safety of all Mainers, patients and healthcare workers alike. Maine’s three interests are mutually reinforcing. It must keep its healthcare facilities staffed in order to treat patients, whether they suffer from COVID-19 or any other medical condition. To accomplish its three articulated goals, Maine has decided to require all healthcare workers who can be vaccinated safely to be vaccinated.
Providing a medical exemption does not undermine any of Maine’s three goals, let alone in a manner similar to the way permitting an exemption for religious objectors would. Rather, providing healthcare workers with medically contraindicated vaccines would threaten the health of those workers and thus compromise both their own health and their ability to provide care.
The medical exemption is meaningfully different from exemptions to other COVID-19-related restrictions that the Supreme Court has considered. In those cases, the Supreme Court addressed whether a state could prohibit religious gatherings while allowing secular activities involving everyday commerce and entertainment and it concluded that those activities posed a similar risk to physical health (by risking spread of the virus) as the prohibited religious activities. See, e.g., Tandon (rejecting the California order that restricted worship but permitted larger groups to gather in “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants”); Roman Cath. Diocese of Brooklyn v. Cuomo (2020) (rejecting the New York order that restricted worship but permitted larger groups to gather at “acupuncture facilities, camp grounds, garages, as well as many [businesses] whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities”). In contrast to those cases, Maine CDC’s rule offers only one exemption, and that is because the rule itself poses a physical health risk {[that] can be serious and even life threatening} to some who are subject to it. Thus, carving out an exception for those people to whom that physical health risk applies furthers Maine’s asserted interests in a way that carving out an exemption for religious objectors would not….
Strict scrutiny does not apply here. But even if it did, the plaintiffs still have no likelihood of success….
We begin by asking “not whether the [state] has a compelling interest in enforcing its [rule] generally, but whether it has such an interest in denying an exception” to plaintiffs. If any healthcare workers providing such services, including the plaintiffs, were exempted from the policy for non-health-related reasons, the most vulnerable Mainers would be threatened.
Maine also reasonably used all the [alternative] tools available to fight contagious diseases. Its rule, thus, does not fail narrow tailoring…. There are … treatments that can be administered to infected patients once they have contracted the disease. Because those treatments do not prevent infections, Maine established in the record that reliance on such treatment options would not meet its goals….
[Other] measures like testing, masking, and social distancing … proved to be ineffective in meeting Maine’s goals. As to testing, Maine CDC concluded that regular testing cannot prevent transmission given how quickly an infected person can transmit the delta variant and how long accurate testing takes. And Maine experienced multiple COVID-19 outbreaks in healthcare facilities adhering to mandatory masking and distancing rules. Thus, Maine has shown that non-pharmaceutical interventions are inadequate to meet its goals.
Maine has demonstrated that it has tried many alternatives to get its healthcare workers vaccinated short of a mandate. These include vaccine prioritization, worksite vaccine administration, and prizes for vaccination. But both its healthcare-worker-focused efforts and general incentives have failed to achieve the at least 90% vaccination rate required to halt community transmission of the delta variant. Maine has no alternative to meet its goal other than mandating healthcare workers to be vaccinated….
[And] the rule is [not] either under- or overinclusive…. The regulation applies to all healthcare workers for whom a vaccine is not medically contraindicated. Indeed, eliminating the only exemption would likely be unconstitutional itself. See Jacobson v. Massachusetts (1905). Nor is the regulation overinclusive. It does not extend beyond the narrow sphere of healthcare workers, limiting the universe of people covered to those who regularly enter healthcare facilities. The emergency rule is thus focused to achieve the state’s goal of keeping its residents safe because it requires vaccination only of those most likely to come into regular contact with those for whom the consequences of contracting COVID-19 are likely to be most severe.
The court also rejected the plaintiff’s request for an injunction based on Title VII’s rule that employers must reasonably accommodate (when doing so doesn’t involve undue hardship) religious objectors; any Title VII claims, the court held, must go through the prescribed Title VII remedies (which include preliminary filing of complaints with the EEOC, and then review by the EEOC). Plus,
[E]ven if the appellants were entitled to an injunction, they have not shown a likelihood of success on the ultimate merits questions. The hospitals need not provide the exemption the appellants request because doing so would cause them to suffer undue hardship.
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