“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.
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 Cuomo ended the COVID-related “state disaster emergency” and rescinded all of the executive orders that followed – his successor, Gov.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.
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.”
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.
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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