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Lawsuit: NY’s Gov’s Vax Mandate Deliberately Ignores Constitution and Federal Law Prohibiting Religious Discrimination

Lawsuit: NY’s Gov’s Vax Mandate Deliberately Ignores Constitution and Federal Law Prohibiting Religious Discrimination

Although the regulation allows for a medical exemption from the vaccination requirement, it provides no religious exemption whatsoever. This was no oversight.

“For almost eighteen months, [healthcare workers] were part of the endlessly praised ‘front line’ in the ‘battle against COVID.’ Today, they are pariahs, imminently at risk of professional destruction, loss of livelihood and reduction to second-class citizenship because they cannot in conscience, given their sincere religious beliefs, consent to be injected with vaccines that were tested, developed or produced with cell lines derived from the bodies of aborted babies.”

So begins the lawsuit against New York governor Kathy Hochul, who, through her Commissioner of the Department of Health, issued a diktat mandating that all healthcare workers in the state be vaccinated against COVID-19 – with no exemption permitted for those with sincerely held religious objections.

The Emergency Regulation  

On Aug. 26 – three months after Gov. Cuomo ended the COVID-related “state disaster emergency” and rescinded all of the executive orders that followed – his successor, Gov. Kathy Hochul, directed the New York State Department of Health to issue an “emergency regulation” mandating the vaccination of all “personnel” of “covered entities” in the field of medical and health services.

The regulation provides that “covered entities shall continuously require personnel to be fully vaccinated against COVID-19, with the first dose for current personnel received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities.”

Although the regulation allows for a medical exemption from the vaccination requirement, it provides no religious exemption whatsoever.

This was no oversight.

On August 18, 2021, in the last days of his administration, Gov. Cuomo issued an order through his Commissioner of the Department of Health requiring all hospitals and nursing homes to require their staff to be fully vaccinated against COVID-19, with the first dose received no later than September 27, 2021.

Unlike Hochul’s mandate, however, Cuomo’s provided that “covered entities shall grant a religious exemption for COVID-19 vaccination for covered personnel if they hold a genuine and sincere religious belief contrary to the practice of immunization, subject to a reasonable accommodation by the employer.”

In superseding Cuomo’s order, Gov. Hochul deliberately eliminated the religious exemption language – a fact she admitted to during a press conference last Wednesday.

The Lawsuit And TRO

Last week, a group of Christian health care practitioners represented by the Thomas More Society –  seventeen plaintiffs including “practicing doctors, M.D.s fulfilling their residency requirement, nurses, a nuclear medicine technologist, a cognitive rehabilitation therapist and a physician’s liaison” – brought a lawsuit arguing that the lack of a religious exemption renders the vaccine mandate unconstitutional.

These plaintiffs object to the COVID-19 vaccines on religious grounds because, they allege, the vaccines “all employ fetal cell lines derived from procured abortion in testing, development or production of the vaccines.”

According to the Complaint:

Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).

Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.

Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Among other things, the plaintiffs allege in their complaint that the vaccine mandate violates Title VII of the Civil Rights Act of 1964.  Under that federal statute, employers with more than 15 employees are prohibited from “discriminat[ing] against any individual” in his or her employment “because of such individual’s . . . religion.”

Title VII requires covered employers (which includes the plaintiffs’ employers) to reasonably accommodate their employees’ sincere religious beliefs and practices, unless the employer can show that any accommodation would impose an undue hardship on the employer.

The plaintiff’s complaint also alleges that the vaccine mandate trammels the Free Exercise Clause of the First Amendment, which protects citizens’ right to practice their religion as they please.

The First Amendment and Title VII apply to all of the states, of course.  In fact, under the Supremacy Clause of the U.S. Constitution, federal law “shall be the supreme law of the land” to which all contrary state laws must yield.

However, as the plaintiffs outline in their complaint, Hochul’s diktat purports to override federal protections under Title VII and the Free Exercise Clause and instead “command[s] employers to deny religious accommodation of sincere religious objections to vaccination.”

Hochul’s Lawless Defiance

For these reasons, a federal judge in Utica, New York granted a temporary restraining order last week enjoining the state from enforcing the mandate, which is set to take effect Sept. 27, while the lawsuit plays out. That TRO has been extended until October 12, pending decision on the motion for a preliminary injunction.

This is significant, because in order to succeed in an application for a TRO, the plaintiffs had to demonstrate, among other things, that they had a likelihood of success on the merits of the lawsuit.  The court’s determination that the plaintiffs satisfied this requirement bodes well for their case.

Remarkably, even in the face of that, Gov. Hochul has doubled down.

“I’m not aware of a sanctioned religious exemption from any organized religion. In fact, they are encouraging the opposite,” she said at her news briefing last week. “They’re encouraging their members. Everybody, from the pope on down, is encouraging people to get vaccinated.”

One has to wonder if Hochul is receiving any legal counsel at all.

To begin, she focuses on what she claims leaders of “organized religion” say.  But that’s a totally irrelevant consideration.

The test for “religion” within the meaning of Title VII is whether the employee’s sincere and meaningful beliefs occupy in his or her life a place parallel to that filled by traditional notions of God.

Thus, the issue is whether the employee holds a particular belief, not whether others of his or her faith – including ecclesiastical “leaders” – do, as well.

Indeed, the website of the U.S. Equal Employment Opportunity Commission – the federal agency tasked with enforcing federal laws, like Title VII, that make it illegal to discriminate against employee on the basis of religion –  contains a “question and answers” page that provides:

“For purposes of Title VII, religion includes “not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.”

Further, the EEOC’s Guidelines on Discrimination Because of Religion, which is codified in the Code of Federal Regulations, explicitly states that “the fact … that the religious group to which the individual professes to belong may not accept [the employee’s] belief will not determine whether the belief is a religious belief of the employee” for purposes of Title VII.

It’s hard to believe that the governor of New York isn’t aware of the law.  Thus the only reasonable inference to draw is that Hochul is willfully ignoring the Constitution and federal statutes in favor of government-imposed value judgments on religious doctrine.

It is hard to conceive of a more blatant violation of the Free Exercise Clause or a clearer case of inappropriate entanglement of church and state.

Next, under Title VII, covered employers are obligated to accommodate their employees’ religious objections unless – and only unless – they can demonstrate that doing so would create an undue hardship on their businesses.

Hochul, acting ultra vires and in flagrant violation of the law, has simply exempted all covered employers from having to make this showing.

Power to the Bureaucrats          

While Hochul’s flouting of federal law could be due to a contempt for religious faith, it also owes in large part to a government-knows-best hubris.

Her vaccine edict provides that healthcare employers “shall continuously require personnel to be fully vaccinated.”  But the regulation leaves it to the Department of Health to determine when that is.

And, as the plaintiff’s correctly note in their complaint, the use of the word “continuously” in the decree “appears to contemplate however many booster shots of COVID vaccine federal and state health bureaucrats demand.”

After all, in other countries, “fully vaccinated” now means three shots or possibly four.  And, Pres. Biden suggested in an Aug. 18 speech that third shots may be required, stating that “It will make you safer, and for longer, and it will help us end the pandemic faster.”

Appearing on MSNBC this weekend, Dr. Anthony Fauci, the chief medical advisor to President Biden, said that the FDA’s decision not to recommend third-shot booster vaccinations for most Americans was “not the end of the story.

The upshot is that by leaving open-ended the determination of whether someone is, at any given point, “fully” vaccinated puts immense power in the hands of unelected agency apparatchiks, gives the administrative state vast authority over individuals’ bodies, and fundamentally alters the relationship between citizens and their government.


In their complaint, the plaintiffs assert that “never in the history of this country—indeed, never in the history of the world—has a government attempted to impose mass vaccination on an entire class of citizens under threat of loss of livelihood and professional standing.”

But that’s exactly what New York is doing.

In his treatise Leviathan, seventeenth-century political philosopher Thomas Hobbes argued that societies should be governed by rulers with absolute authority – he described them as “mortal gods” – who operate outside the limitations of law and whom all people should obey without question.

Our Framers sensibly rejected Hobbes’ approach in favor of one that protects unalienable rights and embraces limited government.

Too bad Kathy Hochul didn’t get the memo.


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Put a vaccine requirement to receive welfare and see how fast the liberals lose their minds.

    Lucifer Morningstar in reply to Olinser. | September 22, 2021 at 8:28 am

    Put a vaccine requirement on all the bureaucrats like Hochul that they must be “continuously vaccinated” and the see how fast they stop pushing these illegal vaccine mandates.

      Nah, these people are up-to-date on their vaccinations. Politically they have to be, no matter what qualms they might have. It would be too damaging if it got out that they weren’t. So requiring it wouldn’t affect them; it would just make them even more self-righteous.

I fear it will be a slow crawl through the courts and many will lose their jobs over this unconstitutional diktat. Maybe there will be big payback in the end.
Do we even have faith in SCOTUS anymore? Let’s hope and pray they stand for truth and the US Constitution.

    Olinser in reply to lc. | September 21, 2021 at 9:50 pm

    No, I don’t have faith. I have faith in the cowardice of the Roberts court.

    To be blunt, I fully expect this to get struck down. But they’ve left such a glaring hold in it, I expect them to strike it down ONLY on religious freedom grounds.

    Then they’ll ‘fix’ that part of it and issue the same mandate. And then we have to do this bullshit again. And again. Until SCOTUS finally makes a CLEAR ruling on the actual mandate itself.

    But again, the only thing I have faith in is the cowardice of the Roberts court.

    Lucifer Morningstar in reply to lc. | September 22, 2021 at 8:38 am

    Nope, no faith that the SCOTUS will do the right thing. John Roberts has been cowed into compliance with the democrat threats to “pack the court” with liberals to get the decisions they want. To be blunt, I fully expect the Roberts’ court to find a throughly twisted interpretation of the Constitution and the law to find the NY vaccine mandate to be both Constitutional and legal.

    And Kavanaugh and what’s her name will go right along with it. Guaranteed.

    stevewhitemd in reply to lc. | September 22, 2021 at 12:02 pm

    The slow crawl (usual) in the courts is why the TRO and preliminary injunction are important. With those in place no one will lose a job until this is adjudicated.

    I suspect the governor knows that the order is unconstitutional; she’s playing to her Karen constituency and letting the courts do the dirty work. It’s not how governors are supposed to behave, but she doesn’t worry about things like that.

    Milhouse in reply to lc. | September 23, 2021 at 11:15 am

    Not many “will lose their jobs over this unconstitutional diktat”, because it isn’t unconstitutional for many people. The constitution only requires an exemption for those few who really do have a sincere religious objection, and the government is entitled to contest that sincerity and make the person prove it. If they were smart they would grant the exemption in principle, and focus on denying individuals who applied for it without evidence of sincerity. They’d get 99.9% of what they want, and be OK with the courts. But they insist on total control, because that’s what it’s really about. The totalitarian instinct.

“Too bad Kathy Hochul didn’t get the memo.”

Yet she took the Article VI oath (for the federal constitution) and the counterpart oath for the NY constitution.

Could it be that she might have lied?

    TX-rifraph in reply to fscarn. | September 22, 2021 at 7:32 am

    She agrees with Hobbes as any sociopath would. She has no conscience. If you ever wondered how Stalin or any other dictator could kill fellow citizens, watch how she behaves and listen to her words.

Subotai Bahadur | September 21, 2021 at 9:21 pm

We are dealing with a Democrat controlled state, specifically New York. In states of that ilk, the Constitution does not ever restrict the powers of the State, but only the lives of the ruled.

And since the Supreme Court has already demonstrated that the current Federal government can defy it with no consequences, it is but a short step to have the state of New York, which supports the current Federal government share in that lack of consequences. To avoid the public embarrassment, the court will either rule for the State of New York or find a way to avoid ruling. That last being something that they have developed quite a talent for.

Subotai Bahadur

Too bad Kathy Hochul didn’t get the memo.
Oh she knows, she doesn’t care. Her way or the highway.
I’m hoping she gets deathly ill and the nearest hospital is so understaffed they have to send to somewhere far away. And that she suffers the entire time.

Atheists have no means of objecting under Federal law?

    The Friendly Grizzly in reply to randian. | September 22, 2021 at 4:41 am

    More than once, I’ve read the sentiment that atheism is a religion so, why not?

    Milhouse in reply to randian. | September 23, 2021 at 11:20 am

    That’s right, because the first amendment specifically protects the right to the free exercise of religion. That clause doesn’t protect atheists’ rights, just as the second amendment doesn’t protect the rights of people who don’t own guns and don’t want to, and the takings clause doesn’t protect the rights of those who have no property for the government to take.

So then, Cuomo in granny panties.

Why is this any sort of surprise? Since when have communists ever had any respect for the constitution, religious rights or personal rights?

Hochul doesn’t understand the difference between prudential judgement and infallible doctrine. Not that odd, a lot of Catholics don’t either. The Pope stating that the greater good is served to be vaccinated is equal to a statement in faith by any other Catholic. It is not superior, because it is not infallible. It does not meet the requirement for infallible doctrine.

Any Catholic can, based on their judgement decide that the relationship of the fetal derived cells is too close to the vaccine to allow them to take the vaccine. The essential moral framework that life begins at conception, held by the Catholic Church is the basis for their objection.

That objection, by refusal, is a protest that encourages the development of vaccines that are not ethically compromised by fetal cell use. It is a valid position and equally valid to the prudential judgement of any church leader.

I took the vaccine. In my judgement the cell use is distant enough from the actual vaccine that I do not believe I am committing a moral wrong. I know others who feel the opposite and are equally committed Catholics. All of us are following doctrine.

Bottom line, no church, including the Catholic Church has issued a statement ‘compelling’ their practitioners to get the vaccine. The argument that any, or all, might ‘encourage’ it does not invalidate religious exemption.

    Dathurtz in reply to kyrrat. | September 22, 2021 at 6:17 am

    When is the last time the pope even spoke Ex Cathedra?

    I can’t imagine any person taking seriously the judgements of this pope. Unless out of simple respect for the office.

    stevewhitemd in reply to kyrrat. | September 22, 2021 at 12:05 pm

    In late 2020, the Congregation for the Doctrine of the Faith stated that “it is morally acceptable to receive COVID-19 vaccines that have used cell lines from aborted fetuses in their research and production process”, but only where other alternatives are non-existent (or currently unavailable), or when there’s the risk of a worse danger. The Pope approved this document. The document does not compel Catholics to receive the vaccine, and any Catholic may choose to regard this judgment as wrong.

      Yes, that is a statement of prudential jugement. It is not Ex Cathedra. It does not meet the requirements to be so. (Look it up if you are curious. The criteria is available online.)

    Milhouse in reply to kyrrat. | September 23, 2021 at 11:28 am

    Hochul doesn’t understand the difference between prudential judgement and infallible doctrine.

    That’s irrelevant. Even if the Pope were to declare ex cathedra that supporting the vaccine is official Roman Catholic doctrine, that would simply mean that someone with a sincere religious objection to the vaccine would not be a good Catholic. It wouldn’t affect their rights under the US constitution, or under Title 7.

    US law doesn’t care whether someone’s beliefs are aligned with those of a major religious grouping. Even if someone is the only person in the world to sincerely hold a certain belief, that belief has the same protection as one adhered to by billions. The only criterion is that the person does sincerely believe it, and is not just faking.

Vax has externalities that are within the government’s power. It’s not only you that needs your protection. Courts so far tend to defer to federal agencies.

The religious exemption is a workaround for some other mistake in precedent, to bring one Constitutional right to work against a mistake about another, at least in baking wedding cakes.

FortesFortunaJuvat | September 22, 2021 at 8:05 am

communists don’t care about the Constitution or the limitations imposed on government by that document or even their own state constitutions. They know all too well that it takes months, if not years, to obtain any judicial relief from their criminal acts and in the time that takes, they are well on their way to causing the damage they fully intend to inflict with their agenda.

Unless, or until, the judicial system is modfied to allow for citizen actions against government tyranny to always be heard on an expedited basis then the commies will use the system to maximize the damage they inflict.

Q: What would be a quick way to address both the Covid epidemic and the rising violent crime rate in this country ?

A: Kick every female Democrat governor and every black female Democrat mayor out of office.

“Deliberately ignores Constitution”

Gee whiz! That ain’t news. Democrats have been doing that for years.

DoD is trying something similar. They start from the false premise that since the leadership of the religious organizations in the US haven’t publicly opposed the vax that any application for a religious exemption is bogus. Next is an interview (hearing?) conducted by the unit Chaplain to gauge the ‘sincerity’ of the applicant’s religious conviction. All of this seemingly precludes any respect for independent thought or individually held convictions which is inconsistent with past practice by DoD and with Federal law.

Lot’s of folks scammed their way out of the military during the early/mid 2000’s. Even folks who joined or reenlisted post Iraq invasion who clearly knew the Nation was at war. As soon as they got deployment orders, poof/presto say the magic words conscientious objector and they were able to duck out. Even some who went AWOL then retroactively claimed to be a conscientious objector.

    Milhouse in reply to CommoChief. | September 23, 2021 at 11:34 am

    DoD is trying something similar. They start from the false premise that since the leadership of the religious organizations in the US haven’t publicly opposed the vax that any application for a religious exemption is bogus. Next is an interview (hearing?) conducted by the unit Chaplain to gauge the ‘sincerity’ of the applicant’s religious conviction. All of this seemingly precludes any respect for independent thought or individually held convictions which is inconsistent with past practice by DoD and with Federal law.

    Not so. It doesn’t preclude such respect, it just plays the odds. Most people who claim simultaneously to adhere to an established religion and to sincerely hold a doctrine that is not supported by that religion are faking.

    It’s the chaplain’s job to assess the sincerity of each individual applicant’s belief. Having much experience with sincerely held beliefs qualifies the chaplain to make such an assessment; but affiliation with a specific religious group tends to bias the chaplain against beliefs his group disagrees with, so he has to consciously overcome that bias. The system depends on the chaplain’s honesty in making that assessment.