Emergency Application for Writ of Injunction — Dr. A v. Hochul

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No. 21A____ 
 
 
 
 
In the Supreme Court of the United States 
 
DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I., DR. J.,  
NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S.,  
NURSE S., PHYSICIAN LIAISON X.,  
Applicants, 
v. 
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY, DR. 
HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, IN 
HIS OFFICIAL CAPACITY, LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, 
IN HER OFFICIAL CAPACITY, 
Respondents. 
 
 
EMERGENCY APPLICATION FOR WRIT OF INJUNCTION OR,  
IN THE ALTERNATIVE, PETITION FOR WRIT OF CERTIORARI  
AND STAY PENDING RESOLUTION 
 
To the Honorable Sonia Sotomayor, Associate Justice of the Supreme Court  
of the United States and Circuit Justice for the Second Circuit 
 
 
MARK RIENZI 
DANIEL BLOMBERG  
DIANA VERM THOMSON 
ADÈLE KEIM 
KAYLA A. TONEY 
JAMES J. KIM 
THE BECKET FUND FOR RELIGIOUS LIBERTY 
1919 Pennsylvania Ave. NW, Suite 400 
Washington, D.C. 20006 
 
 
 
 
 
(202) 955-0095 
mrienzi@becketlaw.org 
 
THOMAS BREJCHA 
   Counsel of Record 
STEPHEN M. CRAMPTON 
THOMAS MORE SOCIETY 
309 West Washington Street, Suite 1250 
Chicago, IL 60606 
tbrejcha@thomasmoresociety.org 
CHRISTOPHER A. FERRARA 
THOMAS MORE SOCIETY 
148-29 Cross Island Parkway 
Whitestone, Queens NY 11357 
(718) 357-1040 
MICHAEL MCHALE 
THOMAS MORE SOCIETY 
10506 Burt Circle, Suite 110 
Omaha, NE 68114 
 
Counsel for Applicants 
Dated: November 12, 2021 

 
 
i 
QUESTIONS PRESENTED 
1. Whether an administrative rule is generally applicable when it bans 
specific religiously motivated conduct inside a covered facility while expressly 
permitting otherwise identical secular conduct in the same facility at the same time. 
2. Whether an administrative rule mandating vaccination for health care 
workers is religiously neutral for purposes of the Free Exercise Clause when it targets 
religion by removing a religious exemption while retaining a medical exemption, 
when the governor declared that the removal was intentional and that religious 
objectors to vaccination are “not doing what God wants,” and when the State enforces 
that view by punitively denying unemployment benefits to terminated religious 
objectors. 
3.  Whether a state administrative rule can forbid private employers from 
offering any religious accommodations under Title VII other than exclusion from the 
employer’s premises. 
 
 
 

 
 
ii 
RULE 29.6 STATEMENT AND PARTIES TO THE PROCEEDING 
Pursuant to Supreme Court Rule 29.6, Applicants Doctor A, Nurse A, Doctor C, 
Nurse D, Doctor F, Doctor G, Therapist I, Doctor J, Nurse J, Doctor M, Nurse N, 
Doctor O, Doctor P, Technologist P, Doctor S, Nurse S, and Physician Liaison X were 
plaintiffs below in proceedings before both the U.S. Court of Appeals for the Second 
Circuit and the U.S. District Court for the Northern District of New York, and they 
each represent that they do not have any parent entities and do not issue stock. 
Respondents, who were defendants in the state court proceedings, are Kathy 
Hochul, in her official capacity as Governor of the State of New York, Dr. Howard A. 
Zucker, in his official capacity as Commissioner of the New York State Department 
of Health, and Letitia James, in her official capacity as the Attorney General of the 
State of New York.  
 
Respectfully submitted, 
/s/ Thomas Brejcha 
 
 
 
   Counsel of Record 
THOMAS MORE SOCIETY 
309 W. Washington St., Suite 1250 
Chicago, IL 60606  
(312) 782-1680 
tbrejcha@thomasmoresociety.org 
 
Dated: November 12, 2021 
 
 
 
 

 
 
iii 
LIST OF RELATED PROCEEDINGS 
 
Dr. A. v. Hochul, No. 21-2566, (2d Cir. Nov. 4, 2021), Appx.1-54. 
Dr. A. v. Hochul, No. 1:21-cv-1009 (N.D.N.Y., Oct. 12, 2021), Appx.55-88.  
We the Patriots, Inc. v. Hochul, No. 21A125 (Application for injunctive relief,  
Nov. 1, 2021). 
 
We the Patriots, Inc. v. Hochul, No. 21-2179 (2d Cir. Nov. 4, 2021). 
 
We the Patriots, Inc. v. Hochul, No. 1:21-cv-04954 (E.D.N.Y., Sept. 13, 2021). 
 
 
 
 
 

 
 
iv 
TABLE OF CONTENTS 
QUESTIONS PRESENTED  .......................................................................................... i 
RULE 29.6 STATEMENT AND PARTIES TO THE PROCEEDING ......................... ii 
LIST OF RELATED PROCEEDINGS ......................................................................... iii 
TABLE OF AUTHORITIES ......................................................................................... vi 
JURISDICTION ............................................................................................................. 5 
BACKGROUND AND PROCEDURAL HISTORY ....................................................... 5 
A. The Applicants ..................................................................................................... 5 
B. New York’s Mandate ............................................................................................ 6 
C. District Court Proceedings ................................................................................ 10 
D. Second Circuit Proceedings ............................................................................... 11 
E. Consequences for Applicants ............................................................................. 13 
REASONS FOR GRANTING THE APPLICATION .................................................. 14 
I. Applicants are likely to prevail because New York’s ban on religious 
exemptions violates the Free Exercise Clause. ..................................................... 15 
A. Applicants have made out a prima facie Free Exercise case because their 
claims are both sincere and religious. .............................................................. 15 
B. New York’s ban is not neutral or generally applicable. ................................... 15 
1. New York’s medical exemption treats comparable secular conduct 
better than religious conduct. ..................................................................... 16 
2. New York’s broadened medical exemption is an individualized 
exemption. .................................................................................................... 18 
3. New York targeted religion by removing the religious exemption. ............ 19 
4. New York officials targeted religious objectors. .......................................... 21 
C. New York’s ban independently triggers strict scrutiny by categorically 
denying unemployment compensation to religious objectors. ......................... 23 
D. New York’s ban fails strict scrutiny. ................................................................. 25 

 
 
v 
1. New York has not shown that it needs greater restrictions than 47 
other states and the federal government. ................................................... 25 
2. New York has shown that it can accommodate religious objectors. ........... 27 
3. New York’s categorical denial of unemployment benefits is not the 
least restrictive means of serving any valid interest. ................................ 29 
II. New York’s categorical ban on religious accommodations directly conflicts 
with Title VII. ......................................................................................................... 29 
III. Immediate injunctive relief is warranted to prevent irreparable harm and 
would serve the public interest. ............................................................................. 34 
IV. Alternatively, Applicants respectfully request that the Court either stay 
enforcement of New York’s mandate or treat this application as a petition 
for certiorari and grant certiorari forthwith. ........................................................ 35 
ADDENDUM ............................................................................................................... 38 
APPENDIX OF EXHIBITS 
Exhibit 1, Appx.1 ............................................ October 29, 2021: Second Circuit Order 
Exhibit 2, Appx.4 ....................................... November 4, 2021: Second Circuit Opinion 
Exhibit 3, Appx.55 ............................................... September 14, 2021: N.D.N.Y. Order 
Exhibit 4, Appx.61 ................................................ October 12, 2021: N.D.N.Y. Opinion 
Exhibit 5, Appx.89 .............. November 5, 2021: N.D.N.Y. Order Vacating Prelim. Inj. 
Exhibit 6, Appx.94 .............................................................................. First Amendment 
Exhibit 7, Appx.96 .............................................................................. 42 U.S.C. 2000e-7 
Exhibit 8, Appx.98 ................ August 18, 2021: N.Y. DOH Order for Summary Action 
Exhibit 9, Appx.106 ......................... August 26, 2021: N.Y. DOH Amendment to Rule 
Exhibit 10, Appx.132 ..................... September 13, 2021: N.D.N.Y. Verified Complaint 
Exhibit 11, Appx.200 ...................... September 17, 2021: Thomas More Society Letter 
 
 

 
 
vi 
TABLE OF AUTHORITIES 
Page(s) 
Cases 
303 Creative LLC v. Elenis, 
746 Fed. Appx. 709 (10th Cir. 2018) ............................................................ 2, 12, 19 
Ansonia Bd. of Educ. v. Philbrook, 
479 U.S. 60 (1986) ...................................................................................... 29, 30, 32 
Brown v. Entertainment Merchs. Ass’n, 
564 U.S. 786 (2011) ................................................................................................ 25 
Calvary Chapel Dayton Valley v. Sisolak, 
140 S. Ct. 2603 (2020) ............................................................................................ 37 
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 
508 U.S. 520 (1993) ................................................................................................ 28 
City of Boerne v. Flores, 
521 U.S. 507 (1997) .......................................................................................... 25, 28 
Dahl v. Board of Trustees of Western Michigan University, 
15 F.4th 728 (6th Cir. 2021) ............................................................................ 2-3, 37 
Dignity Health v. Minton,  
No. 19-1135, 2021 WL 5043742 (Nov. 1, 2021) ..................................................... 36 
Does v. Mills, 
No. 21A90, 2021 WL 5027177 (Oct. 29, 2021) ........................................... 18, 19, 36 
Does v. Mills, 
No. 21-1826, 2021 WL 4860328 (1st Cir. Oct. 19, 2021) ......................................... 3 
EEOC v. Abercrombie & Fitch Stores, Inc., 
575 U.S. 768 (2015) ..................................................................................... 10-11, 29 
Employment Div. v. Smith,  
494 U.S. 872 (1990) .................................................................................... 15, 20, 24  
Fraternal Ord. of Police v. City of Newark, 
170 F.3d 359 (3d Cir. 1999) .................................................................................... 37 
Fulton v. City of Philadelphia, 
141 S. Ct. 1868 (2021) ..................................................................................... passim 

 
 
vii 
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,  
546 U.S. 418 (2006) ................................................................................................ 25 
Gulino v. New York State Educ. Dep’t, 
460 F.3d 361 (2d Cir. 2006) .................................................................................... 32 
Hobbie v. Unemployment Appeals Commission of Florida, 
480 U.S. 136 (1987) ................................................................................................ 24 
Hollingsworth v. Perry, 
558 U.S. 183 (2010) ................................................................................................ 36 
Holt v. Hobbs, 
574 U.S. 352 (2015) .................................................................................... 26, 27, 28 
Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm’n, 
138 S. Ct. 1719 (2018) ...................................................................................... 21, 22 
McCullen v. Coakley, 
573 U.S. 464 (2014) ................................................................................................ 27 
O’Connor v. Bd. of Educ. of Sch. Dist. 23,  
449 U.S. 1301 (1980)  .................................................................................................. 32 
Roman Catholic Diocese v. Emami,  
No. 20-1501, 2021 WL 5043558 (Nov. 1, 2021) ..................................................... 36 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) .............................................................................. 14, 23, 25, 35 
Sherbert v. Verner, 
374 U.S. 398 (1963) ................................................................................................ 24 
Stormans v. Wiesman, 
794 F.3d 1064 (9th Cir. 2015) ...................................................................... 2, 12, 19 
Tandon v. Newsom, 
141 S. Ct. 1294 (2021) ..................................................................................... passim 
Thomas v. Review Bd. of Ind. Emp. Sec. Div., 
450 U.S. 707 (1981) .................................................................................... 22, 24, 29 
Trinity Lutheran Church of Columbia, Inc. v. Comer, 
137 S. Ct. 2012 (2017) ............................................................................................ 20 
Winter v. Natural Res. Def. Council, 
555 U.S. 7 (2008) .................................................................................................... 15 

 
 
viii 
Wisconsin v. Yoder, 
406 U.S. 205 (1972) ................................................................................................ 15 
Statutes 
28 U.S.C. 1651 ............................................................................................... 1, 5, 14, 35 
28 U.S.C. 2101 ............................................................................................................. 35 
Regulations 
86 Fed. Reg. 61,402 (Nov. 5, 2021)........................................................................................ 27 
86 Fed. Reg. 61,555 (Nov. 5, 2021) ........................................................................ 27, 30 
Other authorities 
EEOC, What You Should Know About COVID-19 and the ADA, the 
Rehabilitation Act, and Other EEO Laws (updated Oct. 28, 2021) ...................... 30 
Rob Frehse, New York State Health Care Workers Will No Longer Have 
Religious Exemption to COVID-19 Vaccine Mandate, Court Rules, 
CNN (Oct. 29, 2021, 10:29 PM) .................................................................... 8, 11, 33 
N.Y. Exec. Order 210 (June 24, 2021) ........................................................................... 6 
N.Y. Exec. Order No. 4 (Sept. 27, 2021) .................................................................. 8, 14 
New York Dep’t of Labor, Frequently Asked Questions (FAQs) 
Regarding the August 26, 2021 – Prevention of COVID-19 
Transmission of Covered Entities Emergency Regulation (last 
visited Nov. 11, 2021) ............................................................................................. 31 
N.Y. State Dep’t of Health, Unemployment Insurance Top Frequently 
Asked Questions (Sept. 25, 2021) ....................................................................... 9, 23 
N.Y. State Governor’s Office, Governor Cuomo Announces COVID-19 
Vaccination Mandate for Healthcare Workers (Aug. 16, 2021)............................... 6 
N.Y. State Governor’s Office, In Preparation for Monday Vaccination 
Deadline, Governor Hochul Releases Comprehensive Plan to 
Address Preventable Health Care Staffing Shortage (Sept. 25, 2021) ............. 9, 23 
N.Y. State Governor’s Office, Rush Transcript: Governor Hochul 
Attends Service at Christian Cultural Center (Sept. 26, 2021) ......................... 9, 21 

 
 
ix 
N.Y. State Governor’s Office, Video, Audio, Photos & Rush Transcript: 
Governor Hochul Attends Services at Abyssinian Baptist Church in 
Harlem (Sept. 12, 2021) ................................................................................... 10, 21 
N.Y. State Governor’s Office, Video & Rough Transcript: Governor 
Hochul Holds Q&A Following COVID-19 Briefing (Sept. 15, 2021) ................ 7, 21 
Safer Federal Workforce, Vaccinations (last visited Nov. 10, 2021) ......................... 26 
Sup. Ct. R. 11 ............................................................................................................... 36 
Sup. Ct. R. 23 ............................................................................................................... 35 
 

 
 
 
1 
To the Honorable Sonia Sotomayor, Associate Justice of the United States Supreme 
Court for the Second Circuit: 
Pursuant to Rules 22 and 23 of this Court, and 28 U.S.C. 1651(a), Applicants 
respectfully request an injunction preventing enforcement of New York’s ban on 
religious exemptions for healthcare workers opposed to mandatory COVID 
vaccination. In the alternative, Applicants ask that enforcement of New York’s rule 
be stayed, and/or this application be treated as a petition for certiorari and granted, 
so that this Court can promptly address on its merits docket the important issues 
presented here. In either case, Applicants request an administrative stay during the 
emergency briefing and deliberations on this application. 
This application arises from New York’s extraordinarily punitive COVID vaccine 
mandate, which the district court rightly held is “not a neutral law,” but a “‘religious 
gerrymander’” that “targets religious opposition to the available COVID-19 vaccines.” 
New York is a national outlier: While 47 states and the federal government respect 
religious objectors, New York punishes them. In fact, after originally announcing that 
it would respect religious objections, New York made a U-turn, revoking the religious 
exemption entirely, while at the same time broadening its medical exemption. It now 
allows medically exempt unvaccinated employees to continue normal job 
responsibilities so long as they wear personal protective equipment (PPE), but it 
refuses to allow unvaccinated religious objectors to work on-site at all. Worse, New 
York now even bars religious objectors who lose their jobs from receiving 
unemployment compensation. Other workers’ unemployment claims “are reviewed on 

 
 
 
2 
a case-by-case basis,” but healthcare workers fired over the vaccine mandate without 
a medical exemption “will be ineligible” for unemployment benefits.  
New York’s approach is therefore nothing like the “across-the-board” law in Smith 
that only “incidentally” burdened religion, and it should easily have triggered strict 
scrutiny under Fulton and Tandon—as the district court correctly held. Indeed, New 
York’s recent addition of a categorical denial of unemployment compensation to 
religious objectors makes this an easy case under this Court’s unemployment-
compensation cases—Sherbert, Thomas, and Hobbie—which all survived Smith.  
The Second Circuit candidly acknowledged that New York’s mandate imposes 
“meaningful burdens” on Applicants’ religious exercise. But it held that those 
“meaningful burdens”—even on a textual constitutional right—were not “of a 
constitutional dimension.” The panel openly admitted that it is “reasonable” to treat 
unvaccinated employees as “present[ing] statistically comparable risks” of spreading 
COVID, whether they were unvaccinated for religious or medical reasons. And the 
panel acknowledged that medically exempt employees were allowed to “continue 
normal job responsibilities” while wearing PPE—an option categorically denied to 
religious objectors. But the panel nevertheless applied only rational basis review, 
relying in part on decisions from other circuits that have badly misconstrued the Free 
Exercise Clause, including the heavily criticized decisions in 303 Creative LLC v. 
Elenis, 746 Fed. Appx. 709 (10th Cir. 2018), and Stormans v. Wiesman, 794 F.3d 1064 
(9th Cir. 2015), cert. denied, 136 S. Ct. 2433 (2016) (No. 15-862) (Alito, J., dissenting). 
And it deepened the circuit split between Dahl v. Board of Trustees of Western 

 
 
 
3 
Michigan University, 15 F.4th 728 (6th Cir. 2021) and Does v. Mills, No. 21-1826, 
2021 WL 4860328 (1st Cir. Oct. 19, 2021). As a result, Applicants and thousands of 
other healthcare workers are poised to suffer irreparable harm, even while 47 other 
states and the federal government demonstrate that such harm is entirely 
unnecessary.  
The panel did agree that New York’s mandate cannot override the civil rights 
protections provided to employees by Title VII. And on November 5, the federal 
government issued its own vaccine mandates which repeatedly emphasized that 
religious employees retain their full Title VII right to reasonable accommodation. Yet 
rather than interpret its rule to be consistent with Title VII and the new federal rules, 
New York has now informed this Court that its rule allows far less: the only 
accommodation New York will allow is complete removal of the religious employee 
from the category of “personnel” under the rule. Response Br. at 36, We the Patriots, 
Inc. v. Hochul, No. 21A125 (Nov. 10, 2021) (citing the definition of “personnel” at 
Section 2.61(a)(2)). New York now even admits that the injunction in this case was 
“preventing” New York from “interfering” with employers’ voluntary grants of 
religious exemptions. Response Br. at 13. Under Title VII, an employer who can 
reasonably accommodate an employee’s religious exercise must do so, and states are 
not empowered to “interfere” with federal law. New York’s aggressive position also 
directly contradicts recent EEOC guidance on Title VII, and it means that Applicants 
cannot be accommodated on-site, even when their employers previously determined 
that they could be accommodated without undue hardship.  

 
 
 
4 
If New York reverses course here and agrees to (1) allow employers to offer the 
full scope of Title VII protections and (2) allow religious objectors to continue their 
“normal job responsibilities” alongside their medically-exempt coworkers who are 
doing the same, then this Court could safely deny the petition. Ideally, any such 
denial would be accompanied by a statement clarifying that the basis for doing so is 
New York’s acknowledgement that its law allows employers to offer what Title VII 
and the Free Exercise Clause require. But if New York offers anything less—if it 
continues to assert the power to “interfere” in religious but not medical 
accommodations—then this Court should either issue an injunction or grant 
certiorari now to address these recurring issues on the merits docket. 
Finally, while a typical employment dispute will not necessitate emergency 
intervention, this case is anything but typical. Applicant healthcare workers face 
what the panel deemed “difficult, apparently unusual questions as to imminent 
irreparable harm.” That is because the panel found it “not at all clear” that Applicants 
could ever recover meaningful remedies from either the State or employers under the 
current  mandate. Worse, unlike typical Title VII plaintiffs, Applicants will be 
foreclosed by the State from pursuing other job prospects in their fields and 
simultaneously prevented even from obtaining unemployment benefits to feed their 
families while their case proceeds. New York has attainted them in all but name. 
Just as with COVID worship restrictions, vaccine mandates raise difficult 
questions about balancing indubitably strong public health interests on one side and 
core constitutional rights on the other. But it is not difficult to see that New York’s 

 
 
 
5 
uniquely punitive treatment of religious objectors, which is an extreme outlier 
nationally, violates the Free Exercise Clause. All Americans, especially our 
healthcare workers, deserve better. 
JURISDICTION 
 
Applicants appeal from the Second Circuit’s reversal of the district court’s grant 
of a preliminary injunction. This Court has jurisdiction under 28 U.S.C. 1651. 
BACKGROUND AND PROCEDURAL HISTORY 
A. The Applicants 
“Heroes work here.” This phrase describes Applicants, healthcare workers who 
have served tirelessly during all phases of the COVID pandemic, since long before 
vaccines were available. For example, Therapist I is a Catholic brain injury specialist 
who temporarily served in the COVID unit of a nursing home to help with staffing 
shortages, and then returned to his rehabilitation clinic. Appx.155 ¶¶ 91-92.1 Doctor 
J is a Catholic OB/GYN who treated many patients with COVID while she herself 
was pregnant. Appx.156 ¶ 99. Dr. O is a Catholic surgeon who treated many COVID 
patients, Appx.163 ¶ 141, and Dr. F is a Catholic oral surgeon who never turned away 
a patient with COVID who needed care in the rural upstate region that his clinic 
serves. Appx.152 ¶ 76. Dr. P is a third-year OB/GYN resident who cared for many 
COVID patients during her ICU rotation. Appx.165 ¶ 151. Three Applicants are 
 
1   Applicants’ verified complaint contains signed, sworn declarations from each 
Applicant confirming its accuracy. Respondents have not refuted any of Applicants’ 
factual assertions. As permitted by the district court, Applicants are proceeding 
under pseudonyms due to the tangible harms, including retaliation, that they would 
experience by identifying themselves publicly. Appx.87; Appx.140-143. 

 
 
 
6 
currently breastfeeding, and four have already recovered from COVID. Appx.156, 
158, 161-162, 165, 167-169. 
All 17 Applicants have uncontested sincere religious objections to the COVID 
vaccines due to their origin from “abortion-derived fetal cell lines in testing, 
development, or production.” Appx.144-145. These objections are rooted in the devout 
Catholic beliefs of 16 Applicants and the devout Baptist beliefs of Nurse J. Neither 
the Respondents nor the courts have questioned Applicants’ sincerity or religiosity. 
B. New York’s Mandate 
As the district court recognized, New York’s state of emergency officially ended in 
June 2021.2 Yet the state’s use of emergency powers did not. On August 18, 2021, 
Respondent Zucker issued an initial vaccine mandate for health care workers which 
included an explicit medical and religious exemption, with the stated goal of 
“reduc[ing] the spread of the Delta variant.”3 The religious exemption provided that 
“[c]overed entities shall grant a religious exemption for COVID-19 vaccination for 
covered personnel if they hold a genuine and sincere religious belief” contrary to 
receiving the COVID vaccine. Appx.103-104 at (c)(2) (emphasis added). The medical 
exemption applied if “any licensed physician or certified nurse practitioner certifie[d]” 
that receiving the vaccine would be “detrimental” based on a “specific pre-existing 
health condition,” “only until” the vaccine is no longer “detrimental to the health” of 
that employee. Appx.103 at (c)(1). 
 
2  N.Y. Exec. Order 210 (June 24, 2021), https://perma.cc/HA9J-DYR4. 
3   N.Y. State Governor’s Office, Governor Cuomo Announces COVID-19 Vaccination 
Mandate for Healthcare Workers (Aug. 16, 2021), https://perma.cc/ZBP3-Y778.  

 
 
 
7 
Eight days later, on August 26, New York announced an updated version of the 
mandate. Governor Kathy Hochul explained at a news conference that the religious 
exemption was “left off,” and that this omission was done “intentionally.”4 At the same 
conference, Governor Hochul stated that she is not aware of a “sanctioned religious 
exemption from any organized religion” and that “everybody from the Pope on down 
is encouraging people to get vaccinated.”5 This new “emergency” mandate, issued by 
the same commissioner (Respondent Zucker) and adopted by the Department of 
Health, is the operative mandate before this Court and requires most healthcare 
workers to be vaccinated within 30 days. Appx.107-131. The primary change in the 
August 26 rule was to remove the religious exemption entirely. The only changes to 
the medical exemption made it broader; the rule added that it is “inapplicable” 
entirely in the case of medical exemptions instead of requiring they be “subject to a 
reasonable accommodation,” and it removed the requirement that medical 
exemptions are for “specific” conditions. Compare Appx.109, § 2.61(d)(1) with 
Appx.103 at (c)(1). 
New York’s about-face immediately harmed Applicants, other religious objectors, 
and the healthcare system. Four Applicants had received religious exemptions before 
August 26, only to have them revoked after the mandate removed religious 
exemptions. Appx.148 ¶ 49 (Nurse A); Appx.152 ¶ 77 (Dr. F); Appx.163-164 ¶¶ 142-
143 (Dr. O); Appx.169 ¶ 174 (Dr. S). Nurse A’s employer explained that it “must follow 
 
4   N.Y. State Governor’s Office, Video & Rough Transcript: Governor Hochul Holds 
Q&A Following COVID-19 Briefing (Sept. 15, 2021), https://perma.cc/5DY6-S7KM. 
5  Ibid. 

 
 
 
8 
NYS DOH requirements as they evolve. This means that [the hospital] can no longer 
consider any religious exemptions to the COVID vaccination even those previously 
approved.” Appx.148 ¶ 49. Dr. O’s employer revoked his religious exemption because 
“under the emergency regulations the NYS DOH will not permit exemptions or 
deferrals for sincerely held religious beliefs.” Appx.164 ¶¶ 142-143. Several other 
employers told employees that they wanted to grant religious exemptions, but the 
state mandate prevented them. See, e.g., Appx.158-159 ¶ 112 (Nurse J was advised 
by executive director of home care agency that “my hands are tied” because no 
religious exemption is possible due to the mandate). Thousands of healthcare workers 
must now either violate their consciences or lose their jobs.6  At the same time, New 
York faces a severe shortage of medical professionals, which Governor Hochul has 
declared a “statewide disaster emergency.” The governor has authorized calling in 
medical personnel who are not licensed in New York, authorizing practice by recent 
graduates not yet licensed anywhere, bringing medical professionals from other 
countries, and, if necessary, deploying the National Guard.7  
After prohibiting religious exemptions, New York then announced that employees 
terminated for declining the vaccine would be made ineligible for unemployment 
insurance. New York introduced this additional penalty on September 25, just two 
days before the original deadline for vaccination. As Governor Hochul’s office 
 
6  Rob Frehse, New York State Health Care Workers Will No Longer Have Religious 
Exemption to COVID-19 Vaccine Mandate, Court Rules, CNN (Oct. 29, 2021, 10:29 
PM), https://perma.cc/UK6M-EHKR. 
7   See N.Y. Exec. Order No. 4 (Sept. 27, 2021), https://perma.cc/F2H9-VXDY. 

 
 
 
9 
explained in a press release: “The Department of Labor has issued guidance to clarify 
that workers who are terminated because of refusal to be vaccinated are not eligible 
for unemployment insurance absent a valid doctor-approved request for medical 
accommodation.”8 The Department’s FAQ document emphasizes that while workers’ 
cases are generally “reviewed on a case-by-case basis,” healthcare workers who “are 
terminated for refusing an employer-mandated vaccination will be ineligible.”9 
Governor Hochul also publicly condemned religious objectors for rejecting “what 
God wants” and failing to be “true believers” who will say “thank you, God” for the 
COVID vaccine “[t]hat is from God to us.”10 In September, she spoke at two church 
services in Brooklyn and Harlem, explaining: “[God] made them come up with a 
vaccine. That is from God to us and we must say, thank you, God.”11 She added “[a]ll 
of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s 
people out there who aren’t listening to God and what God wants. You know who 
they are. I need you to be my apostles.”12 She told another congregation: 
How can you believe that God would give a vaccine that would cause you 
harm? That is not the truth. Those are just lies out there on social media. 
And all of you, have to be not just the true believers, but our apostles to go 
 
8  N.Y. State Governor’s Office, In Preparation for Monday Vaccination Deadline, 
Governor Hochul Releases Comprehensive Plan to Address Preventable Health Care 
Staffing Shortage (Sept. 25, 2021), https://perma.cc/2GJV-TLQW. 
9   N.Y. State Dep’t of Health, Unemployment Insurance Top Frequently Asked 
Questions (Sept. 25, 2021), https://perma.cc/Y4LL-KKFR.  
10   N.Y. State Governor’s Office, Rush Transcript: Governor Hochul Attends Service 
at Christian Cultural Center (Sept. 26, 2021), https://perma.cc/KP48-4YVK.  
11  Ibid.  
12  Ibid. 

 
 
 
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out there and spread the word that we can get out of this once and for all, if 
everybody gets vaccinated.13   
C. District Court Proceedings 
On September 14, the district court granted Applicants’ motion for temporary 
restraining order against the mandate. Appx.56-60. On October 12, the district court 
issued a preliminary injunction, determining that Applicants were likely to succeed 
on their Free Exercise claim because Section 2.61 is “not a neutral law” but a 
“‘religious gerrymander’ that triggers heightened scrutiny” because it “effectively 
targets religious opposition to the available COVID-19 vaccines.” Appx.79, 80. The 
court also found that Section 2.61 is not generally applicable because it includes a 
broad medical exemption, although the unvaccinated for medical reasons pose the 
same “unacceptable” workplace risk as the unvaccinated for religious reasons. 
Appx.81. Respondents were likely to fail strict scrutiny because they did not explain 
why the reasonable accommodations that Section 2.61 guarantees for the medically 
exempt could not also extend to religious objectors, nor did they explain “why they 
chose to depart from  * * *  other jurisdictions that include the kind of religious 
exemption that was originally present in the August 18 order.” Appx.83.  
The court also held that Applicants were likely to prevail on their argument that 
Title VII preempted Section 2.61, because Title VII demands “favored treatment” for 
religious employees through reasonable accommodations. Appx.74 (quoting EEOC v. 
 
13  N.Y. State Governor’s Office, Video, Audio, Photos & Rush Transcript: Governor 
Hochul Attends Services at Abyssinian Baptist Church in Harlem (Sept. 12, 2021), 
https://perma.cc/PV76-EWAZ.  

 
 
 
11 
Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 775 (2015)). Yet the “broad scope” of 
Section 2.61 has “effectively foreclosed the pathway to seeking a religious 
accommodation that is guaranteed under Title VII,” by preventing Applicants’ 
employers from granting religious exemptions or engaging in the interactive process 
that Title VII requires. Appx.76. 
Though this injunction merely gave employers the ability to provide religious 
exemptions, without requiring any, employers quickly granted religious exemptions 
to roughly 2.4% of the healthcare workforce (15,844 employees statewide), 
demonstrating that they could do so without undue hardship.14 This injunction also 
protected 15 of the 17 Applicants, who either received religious exemptions for the 
first time, had their original exemptions restored, or were allowed to continue 
working under indefinite status. Appx.201-202. 
D. Second Circuit Proceedings 
On October 29, 2021, the Second Circuit issued an order reversing the Northern 
District’s grant of preliminary injunction in this case and affirming the Eastern 
District’s denial of preliminary injunction in We the Patriots, Inc. v. Hochul. The panel 
issued a partial mandate immediately, ordering the district court to vacate its 
injunction and conduct “further proceedings consistent with this Order and the 
forthcoming opinion of this Court.” Appx.2-3.   
 
14  Rob Frehse, New York State Health Care Workers Will No Longer Have Religious 
Exemption to COVID-19 Vaccine Mandate, Court Rules, CNN (Oct. 29, 2021, 10:29 
PM), https://perma.cc/UK6M-EHKR. 
 

 
 
 
12 
The Second Circuit followed with a per curiam opinion on November 4. The court 
acknowledged that Applicants here are “subject to meaningful burdens on their 
religious practice” yet described their harm as “not of a constitutional dimension.” 
Appx.46. Citing the Ninth Circuit’s decision in Stormans v. Wiesman and the Tenth 
Circuit’s 303 Creative v. Elenis, the Second Circuit emphasized that “[t]he mere 
existence of an exemption procedure, absent any showing that secularly motivated 
conduct could be impermissibly favored over religiously motivated conduct,” does not 
trigger strict scrutiny. Appx.37 (internal quotation marks omitted). Finding the 
mandate neutral and generally applicable, the Second Circuit concluded that it is 
subject to only rational basis review. Appx.39. Without claiming any difference in the 
risk of spreading COVID, the panel found that an unvaccinated medically exempt 
employee could nevertheless be “substantially distinguish[ed]” from an unvaccinated 
religious objector by relying heavily on “limited data” suggesting religious objections 
were more common, drawn from affidavits New York filed in a state-court action 
weeks after the injunction was entered here. Appx.34. Despite recognizing that “this 
case raises difficult, apparently unusual questions as to imminent irreparable harm,” 
the Second Circuit also concluded that the mandate didn’t violate Title VII because 
it “does not foreclose all opportunity” for religious claimants “to secure a reasonable 
accommodation” since religious objectors could be given remote “assignments—such 
as telemedicine.” Appx.41-42, 47.  
On November 5, the U.S. District Court for the Northern District of New York 
vacated the preliminary injunction. Appx.56-60. 

 
 
 
13 
E. Consequences for Applicants  
As result of the mandate, Applicants will lose their current jobs, lose their ability 
to find any other jobs in their field throughout New York, and be denied 
unemployment benefits. For example, the six Applicants who are doctors and 
surgeons will lose admitting privileges at hospitals, rendering them unable to 
practice their medical specialties or perform surgeries. Appx.150 ¶¶ 61-62; Appx.153 
¶¶ 79-80; Appx.154 ¶¶ 86-87; Appx.157 ¶¶ 103-104; Appx.164 ¶¶ 144-145; Appx.169 
¶¶ 174-177 (hospital administration notified Dr. S that failure to prove vaccination 
will result in suspension of hospital privileges). For Nurse D, who has $50,000 in 
student loans and whose job provides “a vital source” of income and health insurance 
for her family, the mandate and its punitive denial of unemployment benefits will 
prove financially devastating. Appx.151 ¶¶ 66-69. Two Applicants who are residents, 
Dr. M and Dr. P, face the imminent loss of their residencies and destruction of their 
careers, since they cannot practice independently without a residency, will not be able 
to find other residencies anywhere in New York to accept them, and will face adverse 
consequences for licensure. Appx.160-161, 165-166. 
These consequences directly harm the patients and communities that Applicants 
serve. For example, Dr. C will no longer be able to perform eye surgeries, even though 
his clinic did 10,000 surgeries during 2020 without any COVID cases (or staff 
vaccinations). Appx.149-150 ¶ 57. Oral surgeon Dr. F, whose private clinic is vital to 
his rural upstate area and never turned away a patient with COVID, will no longer 
be able to perform surgeries. Appx.152-153 ¶¶ 76, 79. And all this is occurring at a 

 
 
 
14 
time when Governor Hochul herself publicly emphasized New York’s need for more 
healthcare workers.15 
What is more, the Second Circuit recognized that Applicants lack a remedy for the 
devastating financial losses they face—yet didn’t “place any weight” on that issue. 
Appx.47. The court acknowledged that seeking lost wages would likely be fruitless: if 
Applicants seek money damages under Title VII, the Second Circuit opined that their 
employers could “make a persuasive argument that they should not have to pay 
because they were in effect compelled by law to terminate the employment,” and if 
Applicants sought to sue New York, sovereign immunity would likely prevent 
recovery of damages. Appx.47.  
REASONS FOR GRANTING THE APPLICATION 
Under the All Writs Act, this Court “may issue all writs necessary or appropriate” 
that aid its jurisdiction and are permitted by law. 28 U.S.C. 1651(a). An injunction 
pending disposition of a petition for a timely writ of certiorari is permissible where 
“applicants have clearly established their entitlement to relief pending appellate 
review.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (per 
curiam) (granting injunctions pending appeal to application filed under 28 U.S.C. 
1651(a)). This showing is made where applicants demonstrate “that their First 
Amendment claims are likely to prevail, that denying them relief would lead to 
 
15  In September, Governor Hochul declared a “Statewide Disaster Emergency” 
because of the shortage of healthcare workers, justifying bringing in licensed 
providers from other states and countries, unlicensed recent graduates, and, if 
necessary, deploying the National Guard.  See N.Y. Exec. Order No. 4 (Sept. 27, 2021), 
https://perma.cc/34X8-UFQ6.   

 
 
 
15 
irreparable injury, and that granting relief would not harm the public interest.” Ibid. 
(citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)); see also Tandon v. 
Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam) (same). Applicants satisfy this 
standard. 
I. 
Applicants are likely to prevail because New York’s ban on religious 
exemptions violates the Free Exercise Clause.  
A. Applicants have made out a prima facie Free Exercise case because 
their claims are both sincere and religious. 
No claim under the Free Exercise Clause can be made unless it is both sincere and 
religious. See Wisconsin v. Yoder, 406 U.S. 205, 215-216 (1972). Proving so is the 
religious claimant’s burden. See id. at 235. Here, Applicants have put unchallenged 
sworn evidence into the record that their beliefs are sincere and have maintained 
them in the face of loss of job, career, and unemployment benefits. Appx.147-172. And 
they have also presented sworn testimony that their beliefs are religious, based in 
their respective Catholic and Baptist beliefs. Ibid. Moreover, Applicants have also 
explained the severe burden on those beliefs. Ibid. Accordingly, New York has not 
contested these issues, and the courts below accepted them as proven. Appx.66, 9. 
B. New York’s ban is not neutral or generally applicable. 
Though it acknowledged that the religious exemption ban subjects Applicants “to 
meaningful burdens on their religious practice,” the Second Circuit said those 
burdens were “not of a constitutional dimension” under Employment Division v. 
Smith, 494 U.S. 872 (1990). Appx.46. But New York’s rule is not subject to Smith 
because it is neither neutral nor generally applicable in several ways: it permits 
secular conduct while banning comparable religious conduct that occurs in exactly 

 
 
 
16 
the same place and at the same time, it contains an individualized exemption for 
medical exemptions, it targeted religion by removing a religious exemption, 
government officials confirmed the targeting in announcements surrounding the new 
rule, and it punitively and selectively denies unemployment compensation.  
The rule is therefore subject to strict scrutiny, a test New York cannot satisfy.   
1. New York’s medical exemption treats comparable secular conduct 
better than religious conduct.  
A law “lacks general applicability if it prohibits religious conduct while permitting 
secular conduct that undermines the government’s asserted interests in a similar 
way.” Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021); accord Tandon, 
141 S. Ct. at 1296. “Comparability is concerned with the risks various activities pose, 
not the reasons why” those activities are undertaken. Tandon, 141 S. Ct. at 1296.  
As the district court correctly found, New York fails this test. New York forbids 
religious objectors from working on-site—deeming their risk of COVID spread 
“unacceptably high”—but then tolerates precisely the same risk from those with a 
medical exemption. Appx.81-82. Employees with a medical exemption are not 
required by the State to work off-site, or even to undertake any special precautions 
to prevent contracting or transmitting COVID other than using PPE. Instead, 
medically exempt employees are permitted to continue their normal job duties. Where 
the government grants accommodations for secular interests, as here, it “may not 
refuse to extend” those accommodations “to cases of ‘religious hardship’ without 
compelling reason.” Fulton, 141 S. Ct. at 1878 (quoting Smith, 494 U.S. at 884). 

 
 
 
17 
The Second Circuit resisted this conclusion, but only superficially. First, the panel 
did not dispute the central claim—“that any individual unvaccinated employee is 
likely to present statistically comparable risks of both contracting and spreading 
COVID-19 at any given healthcare facility, irrespective of the reason that the 
employee is unvaccinated.” Appx.33 (admitting this claim is “reasonable”). Nor has 
New York at any point disputed that an unvaccinated employee carries the same risk 
of COVID spread regardless of their reasons for remaining unvaccinated. Presumably 
that is because the virus is no respecter of persons. A medically exempt employee 
presents exactly the same risk of COVID spread as a religiously exempt one. 
Second, the panel credited the State’s claim that the exemptions are not 
comparable because the medical exemption is needed to ensure those employees “are 
able to continue working” and therefore will not contribute to “staffing shortages.” 
Appx.30. But a fired religious objector, of course, will not be able “to continue 
working” either and likewise will contribute to “staffing shortages.” Appx.30.  
Third, the court of appeals also allowed New York to rely on later-filed affidavits 
from a state trial-court proceeding to assert that there are more religious objections 
than medical exemptions, an assertion that factored heavily into the court’s analysis 
on comparability.16 That is simply an effort to distract—even the possibility of secular 
 
16  The Second Circuit repeatedly claimed that Applicants had failed to meet their 
evidentiary burden to obtain a preliminary injunction. Appx.22, 29, 43. But to 
substantiate this claim, the court leaned heavily on Respondents’ extra-record 
evidence that was never before the district court, was not cited until the appeal, and 
was only admitted in a state trial-court proceeding where the Applicants never had 
an opportunity to contest it. Appx.15-16. Among other problems with this evidence is 
 

 
 
 
18 
exemptions that undermine the government’s interest “in a similar way” as religious 
conduct defeats general applicability. Fulton, 141 S. Ct. at 1877. Here, New York has 
now acknowledged to this Court that there are thousands of people with medical 
exemptions who are currently allowed to continue doing their jobs. Response Br. at 
13-14, We the Patriots, Inc., No. 21A125 (Nov. 10, 2021). If thousands of unvaccinated 
people can be exempt for secular reasons, then the law is not generally applicable, 
and New York needs to satisfy strict scrutiny as to why it allows zero religious 
exemptions.17  
2. New York’s broadened medical exemption is an individualized 
exemption.  
New York’s medical exemption means that many employees are eligible for and 
receive exemptions based on their individual circumstances as viewed by their 
 
that it does not clearly demonstrate the central point for which it is cited: the number 
of religious objectors. Appx.16. Rather, the raw data on which Respondents rely only 
shows that hospitals cited non-medical bases for exemption, which Respondents self-
servingly extrapolated to be synonymous with “religious” requests. Appx.16.    
17  In light of vaccination rates well above 90% in the healthcare sector, New York 
has failed to explain why medically exempt employees can be permitted to remain on-
site while religious objectors are banished. Although New York has never specified 
its target, in Does v. Mills, the Director of Maine’s CDC also stated a goal of 90% 
vaccination rate in healthcare facilities, No. 21A90, 2021 WL 5027177, at *4 (Oct. 29, 
2021) (Gorsuch, J., dissenting), a goal New York has already exceeded. If New York 
wishes to defend this treatment of religious objectors, it must satisfy strict scrutiny 
by demonstrating that its differential treatment is the least restrictive way of 
furthering a compelling governmental interest. But even under New York’s suspect 
numbers, 96% of hospital healthcare workers have received at least one dose of the 
vaccine, and New York only claims that 1.3% of hospital workers raised a religious 
objection to COVID vaccination. Appx.15-16. New York has not explained how, at 
those levels, eliminating religious exemptions allowed by virtually every other state 
and the federal government is the least restrictive means of achieving a compelling 
government interest.  

 
 
 
19 
individual healthcare providers. But a “law is not generally applicable if it invites the 
government to consider the particular reasons for a person’s conduct by providing a 
mechanism for individualized exemptions.” Fulton, 141 S. Ct. at 1877. 
The panel found that these medical exemptions were not “individualized 
exemptions” by relying on 303 Creative and Stormans for the proposition that an 
exemption that “objectively defined categories of persons” is not individualized. 
Appx.36. According to the panel, “[t]he ‘mere existence of an exemption procedure,’ 
absent any showing that secularly motivated conduct could be impermissibly favored 
over religiously motivated conduct is not enough to render a law not generally 
applicable.” Appx.37. But this Court’s cases say the exact opposite, that “[t]he 
creation of a formal mechanism for granting exceptions renders a policy not generally 
applicable, regardless whether any exceptions have been given,” Fulton, 141 S. Ct. at 
1879, and New York has already demonstrated that it does favor secular medical 
reasons over religious reasons for remaining unvaccinated, Mills, 2021 WL 5027177, 
at *2 (Gorsuch, J., dissenting) (discussing Maine’s individualized exemptions from its 
vaccine mandate). 
3. New York targeted religion by removing the religious exemption.  
Government actions are not neutral when the government “proceeds in a manner 
intolerant of religious beliefs or restricts practices because of their religious nature.” 
Fulton, 141 S. Ct. at 1877. Here, New York failed to act neutrally when it removed 
an existing religious exemption while broadening the medical exemption. The Second 
Circuit excused this action as not “intended to ‘target’” religious objectors. Appx.26. 
But New York made a deliberate choice to burden religious conduct qua religious 

 
 
 
20 
conduct while broadening the exemption for comparable secular conduct. This is on 
its face not neutral as to religion, and it is certainly not the type of “across-the-board 
criminal prohibition” that “incidentally” burdened religion in Smith. 494 U.S. at 884. 
Laws that fail to operate “without regard to religion,” or that otherwise “single out 
the religious” for disfavored treatment, “clear[ly]  * * *  impose[] a penalty on the free 
exercise of religion that triggers the most exacting scrutiny.” Trinity Lutheran 
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020-2021 (2017). 
Applicants’ experiences confirm this non-neutrality. Four of them had been offered 
exemptions by their employers, and those exemptions were permitted under New 
York’s August 18 rule. Appx.148 ¶ 49 (Nurse A); Appx.152 ¶ 77 (Dr. F); Appx.163 
¶ 142 (Dr. O); Appx.169 ¶ 174 (Dr. S). New York then categorically forbade religious 
exemptions on August 26. And Applicants’ employers revoked the prior 
accommodations precisely because the objections were religious. Appx.148 ¶ 49 
(hospital revoking Nurse A’s religious exemption because it “must follow NYS DOH 
requirements as they evolve. This means that [the hospital] can no longer consider 
any religious exemptions to the COVID vaccination even those previously approved”); 
Appx.163-164 ¶¶ 142-143 (hospital revoking Dr. O’s religious exemption because 
“under the emergency regulations the NYS DOH will not permit exemptions or 
deferrals for sincerely held religious beliefs”). That is not “neutral” treatment that 
just happens “incidentally” to burden religion.  

 
 
 
21 
4. New York officials targeted religious objectors.  
New York officials’ speech surrounding the revocation of the religious exemption 
demonstrated that the ban was not religiously neutral, but rather reflected antipathy 
toward religious objectors. Governor Hochul spoke twice to religious audiences using 
disparaging language about religious objectors that could not have been 
misconstrued: “How can you believe that God would give a vaccine that 
would cause you harm? That is not the truth. Those are just lies out there on social 
media.”18 At another church service, she said, “All of you, yes, I know you’re 
vaccinated, you’re the smart ones, but you know there’s people out there who aren’t 
listening to God and what God wants. You know who they are.”19 And when 
explaining why New York “left off” religious exemptions “intentionally,” Hochul 
explained that she is not aware of a “sanctioned religious exemption from any 
organized religion” and that “everybody from the Pope on down is encouraging people 
to get vaccinated.”20 
This is the opposite of “the requisite religious neutrality that must be strictly 
observed” by the government. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights 
Comm’n, 138 S. Ct. 1719, 1732 (2018). “[E]ven slight suspicion” that state action 
 
18  See N.Y. State Governor’s Office, Video, Audio, Photos & Rush Transcript: 
Governor Hochul Attends Services at Abyssinian Baptist Church in Harlem (Sept. 12, 
2021), https://perma.cc/PV76-EWAZ.   
19  See N.Y. State Governor’s Office, Rush Transcript: Governor Hochul Attends 
Service at Christian Cultural Center (Sept. 26, 2021), https://perma.cc/KP48-4YVK.   
20  N.Y. State Governor’s Office, Video & Rough Transcript: Governor Hochul Holds 
Q&A Following COVID-19 Briefing (Sept. 15, 2021), https://perma.cc/3254-8ZLM.  

 
 
 
22 
against religious conduct “stem[s] from animosity to religion” is enough to give pause 
under the First Amendment. Id. at 1731. And if Government actions are indeed based 
on “impermissible hostility toward  * * *  sincere religious beliefs,” they are per se 
unconstitutional. Id. at 1729. Given that not even courts should “undertake to dissect 
religious beliefs” or resolve “intrafaith differences” because they “are not arbiters of 
scriptural interpretation,” governors certainly lack that power. Thomas v. Review Bd. 
of Ind. Emp. Sec. Div., 450 U.S. 707, 715-716 (1981). 
The Second Circuit excused Governor Hochul’s sermons as mere “personal 
opinion” consistent with a “religion-neutral government interest.” Appx.28-29. But 
accusing religious objectors of not “listening to God and what God wants,” and 
declaring that “God would [not] give a vaccine that would cause you harm,” supra at 
9-10, are not the words of a “neutral decisionmaker who would give full and fair 
consideration” to contrary religious beliefs. Masterpiece, 138 S. Ct. at 1732. Rather, 
they improperly “suggest[]” that “the religious ground for [Applicants’] conscience 
based objections is  * * *  illegitimate.” Id. at 1731. That’s particularly true when the 
words are considered in context, coming shortly after New York removed its religious 
exemption, and shortly before Governor Hochul’s office announced that New York 
would categorically deny unemployment benefits to workers fired because of the 
vaccine mandate.  
None of this is “neutral” lawmaking that only “incidentally” burdens religious 
exercise. To the contrary, by removing an existing religious exemption, denouncing 
the beliefs of religious objectors, and proclaiming that God was on the side of the 

 
 
 
23 
State, New York officials have—yet again—failed to act neutrally. See Diocese of 
Brooklyn, 141 S. Ct. at 65-66 (enjoining “very severe restrictions” that “treat[ed] 
houses of worship much more harshly than comparable secular facilities”). Strict 
scrutiny applies.   
C. New 
York’s 
ban 
independently 
triggers 
strict 
scrutiny 
by 
categorically denying unemployment compensation to religious 
objectors. 
New York’s approach also triggers strict scrutiny because of its newest feature: 
the selective and punitive deprivation of unemployment benefits. Governor Hochul 
announced on September 25—just days before the vaccination deadline—that the 
State had gerrymandered its unemployment insurance coverage to target religious 
objectors. The governor warned that New York was eliminating unemployment 
benefits for employees terminated for refusing a COVID vaccination.21 While other 
workers will have their applications “reviewed on a case-by-case basis,” healthcare 
workers who “are terminated for refusing an employer-mandated vaccination will be 
ineligible.”22 The only exception is for terminated employees who seek a “medical 
accommodation.” See supra n.21. Thus, Applicants are categorically “ineligible” for 
refusing vaccination because of their religious beliefs.23  
 
21  N.Y. State Governor’s Office, In Preparation for Monday Vaccination Deadline, 
Governor Hochul Releases Comprehensive Plan to Address Preventable Health Care 
Staffing Shortage (Sept. 25, 2021), https://perma.cc/2GJV-TLQW.  
22  N.Y. State Dep’t of Health, Unemployment Insurance Top Frequently Asked 
Questions (Sept. 25, 2021), https://perma.cc/Y4LL-KKFR.  
23 Ibid.  

 
 
 
24 
New York has prejudged that religious reasons for refusing vaccination can never 
amount to good cause for losing one’s job. This vindictive approach is the 
quintessential example of a law that violates the Free Exercise Clause, even under 
Smith. Cf. Sherbert v. Verner, 374 U.S. 398, 401, 403-404 (1963) (striking down state 
unemployment commission decision that a religious objection to working on Saturday 
was not “good cause” for refusing work).  
Smith observed that the Court had applied strict scrutiny to invalidate state 
unemployment compensation rules three times: in Sherbert, Thomas, and Hobbie v. 
Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987). 494 U.S. at 883. 
Smith expressly distinguished these as unemployment benefits cases, characterizing 
them as “stand[ing] for the proposition that where the State has in place a system of 
individual exemptions, it may not refuse to extend that system to cases of ‘religious 
hardship’ without compelling reason.” Id. at 884; see Hobbie, 480 U.S. at 146 
(explaining that, under the Free Exercise Clause of the First Amendment, the 
government “may not force an employee ‘to choose between following the precepts of 
her religion and forfeiting benefits, . . . and abandoning one of the precepts of her 
religion in order to accept work’” (citation omitted)). But that is exactly what New 
York has done here: religious objectors are categorically ineligible for unemployment 
benefits. Under Sherbert, Thomas, and Hobbie—which Smith emphasized were not 
overruled—the vaccine mandate violates the Free Exercise Clause.  
 
 

 
 
 
25 
D. New York’s ban fails strict scrutiny. 
Since the rule is not neutral and generally applicable, New York bears the burden 
of satisfying strict scrutiny. Tandon, 141 S. Ct. at 1296. Strict scrutiny is “the most 
demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 
534 (1997). To meet strict scrutiny, New York must show that it has a compelling 
interest, which is an interest “of the highest order,” in requiring these specific 
Applicants to violate their religious beliefs. Gonzales v. O Centro Espirita Beneficente 
Uniao do Vegetal, 546 U.S. 418, 429-430 (2006). Even when the government has 
identified such an interest, the restriction on religious exercise “must be actually 
necessary to the solution.” Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786, 799 
(2011). “That is a demanding standard.” Ibid. And “because [the government] bears 
the risk of uncertainty, ambiguous proof will not suffice.” Id. at 799-800 (internal 
citations omitted). “[S]o long as the government can achieve its interests in a manner 
that does not burden religion, it must do so.” Fulton, 141 S. Ct. at 1881.  
Even though this Court has held that limiting the spread of COVID is a compelling 
government interest, see Diocese of Brooklyn, 141 S. Ct. at 67, New York cannot show 
that its vaccine mandate and vindictive punishments of healthcare workers even 
after they are fired is the least restrictive means of advancing its interests.  
1. 
New York has not shown that it needs greater restrictions than 
47 other states and the federal government.  
New York’s restrictions are a national outlier. First, even though they face the 
same public health problems, 47 other states have not imposed any COVID 
vaccination mandate on private-sector healthcare workers, have allowed religious 

 
 
 
26 
exemptions, or have allowed accommodations like weekly testing. See Addendum. 
Only 14 states and the District of Columbia require private-sector healthcare workers 
to be vaccinated against COVID. Of these, all but three either provide for religious 
exemptions or allow employees to undergo testing instead of vaccination. Only New 
York, Rhode Island, and Maine require private-sector healthcare workers to receive 
COVID vaccines with no religious accommodation or testing alternative. “[W]hen so 
many” other jurisdictions “offer an accommodation, [New York] must, at a minimum, 
offer persuasive reasons why it believes that it must take a different course.” Holt v. 
Hobbs, 574 U.S. 352, 369 (2015). 
When enacting COVID vaccine mandates at the national level, the federal 
government has likewise been careful to emphasize that religious employees continue 
to be protected by federal employment laws such as Title VII. Thus, when enacting 
the federal employee vaccine mandate, the government stated that federal agencies 
are “required to provide a reasonable accommodation to employees  * * *  because of 
a sincerely held religious belief, practice, or observance.”24 And both the Occupational 
Safety and Health Administration (OSHA) mandate for private employers and the 
Center for Medicare and Medicaid Services (CMS) mandate for certain health care 
providers state that Title VII requires employers to offer reasonable accommodations 
to employees who object to the vaccine on religious grounds.25 Where, as here, New 
 
24  Safer Federal Workforce, Vaccinations, https://perma.cc/599Q-XQWR. 
25 Under the OSHA mandate, private employers that mandate vaccines in the 
healthcare context or elsewhere must allow exemptions for sincere religious 
objections. 86 Fed. Reg. 61,402, 61,447 (Nov. 5, 2021) (“sincerely-held religious 
 

 
 
 
27 
York “has available to it a variety of approaches that appear capable of serving its 
interests,” it must explain why it cannot take the more common path. McCullen v. 
Coakley, 573 U.S. 464, 493-494 (2014) (considering policies of other states under 
intermediate scrutiny); Holt, 574 U.S. at 368-369 (same under strict scrutiny). 
New York’s response to this argument is only that it considered and rejected 
alternatives to vaccination as “inadequate.” Appellants’ Reply Br. at 18, 20. But that 
does not explain the difference between New York and the 47 states and the federal 
government that do not require vaccination for the small percentage of their 
healthcare workforce that requests religious exemptions.26 That alone means they 
flunk strict scrutiny. Holt, 574 U.S. at 368-369. 
2. 
New York has shown that it can accommodate religious objectors. 
New York also fails strict scrutiny because it has not explained why it cannot treat 
employees with religious objections like those who receive medical exemptions from 
the mandate. There is no reason that New York’s “interests could [not] be achieved 
 
beliefs” make employees “legally entitled to a reasonable accommodation under 
federal civil rights laws”). Under the CMS mandate, health care providers and 
suppliers that receive Medicare and Medicaid are “required” to create a process for 
employees to request exemptions under federal employment law, including Title VII. 
86 Fed. Reg. 61,555, 61,572 (Nov. 5, 2021) (“we require that providers and 
suppliers  * * *  implement a process by which staff may request an exemption  * * *  
based on an applicable Federal law”). 
26  The fact that some other states may take a significantly more protective approach 
toward religious objectors does not require New York to take the exact same approach. 
See McCullen, 573 U.S. at 493-494 (The State need not “enact all or even any” of the 
less restrictive means identified). But when the vast majority of states and the federal 
government have refrained from the punitive actions New York has taken, New York 
must show why it is entitled to outlier status in its treatment of a constitutional right. 
New York has not done so. 

 
 
 
28 
by narrower [laws] that burdened religion to a far lesser degree.” Church of the 
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). That is, the 
precautions New York takes for medically exempt workers to ensure that they can 
continue working in the same facilities as religious objectors should apply just as well 
to religious objectors. Holt, 574 U.S. at 365 (“[I]f a less restrictive means is available 
for the Government to achieve its goals, the Government must use it.”). The Second 
Circuit noted that “healthcare entities may permit a medically exempt employee to 
continue normal job responsibilities provided they comply with requirements for 
personal protective equipment,” Appx.43 n.33, but it neglected to “requir[e] the State 
to explain why it could not safely permit” religious objectors to exercise the same 
“precautions used [for] secular” objectors. Tandon, 141 S. Ct. at 1297. Thus, New York 
has failed to meet its “most demanding” burden of proof under strict scrutiny. City of 
Boerne, 521 U.S. at 534.  
The closest New York gets is that, as alleged in the affidavits it filed in a different 
case in state court, during the brief time that religious accommodations were legal in 
New York, the number of religious accommodation requests was higher than the 
number of medical exemptions. Appx.32. But even accepting those numbers, supra 
n.16, in the counties that the Second Circuit identified as having a higher proportion 
of religious accommodation requests, the overall vaccination rate for health care 
workers was above 90%. Appx.15-16. And the fact that religious exemptions are 
somewhat more common is not, by itself, a reason to deny them. To the contrary, the 
existence of these accommodations confirms that many healthcare employers have 

 
 
 
29 
found it entirely possible to safely accommodate religious employees in their facilities 
without undue hardship.  
3. 
New York’s categorical denial of unemployment benefits is not 
the least restrictive means of serving any valid interest. 
New York also fails strict scrutiny by irrationally denying religious objectors 
unemployment benefits. See supra at 8-9. Even if firing religious objectors from their 
jobs was somehow the least restrictive way to meet its interests in curbing the spread 
of the virus and maintaining healthcare workers, depriving religious objectors of the 
ability to feed their families contributes to neither of those interests if they are 
already out of work. “[P]roperly narrowed,” then, “we must conclude that the interests 
advanced by the state do not justify the burden placed on the free exercise of religion.” 
Thomas, 450 U.S. at 719.  
II. 
New York’s categorical ban on religious accommodations directly 
conflicts with Title VII. 
Under Title VII, “[a]n employer may not take an adverse employment action 
against an applicant or employee because of any aspect of that individual’s religious 
observance or practice unless the employer demonstrates that it is unable to 
reasonably accommodate that observance or practice without undue hardship.” 
Abercrombie & Fitch, 575 U.S. at 775-776 (Alito, J., concurring). In order to meet 
their Title VII obligations, employers must engage in a good faith process involving 
“bilateral cooperation” with their employees who request religious accommodations. 
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986). While an employer is not 
required to accept an employee’s preferred accommodation, it is per se unreasonable 
for employers to deny a religious accommodation if they have already granted similar 

 
 
 
30 
accommodations to other employees for secular reasons. Id. at 71. That is because, 
once an employer has authorized an accommodation, it “may not be doled out in a 
discriminatory fashion,” since “discrimination against religious practices  * * *  is the 
antithesis of reasonableness.” Ibid.    
Consistent with this rule, when adopting its own “Health Care Staff Vaccination” 
regulation last week, the federal government recognized that health care employers 
“may also be required to provide appropriate accommodations” under Title VII “for 
employees who request and receive exemption from vaccination because of a  * * *  
sincerely held religious belief, practice, or observance.”27 And when issuing guidance 
for employers implementing vaccine mandates, the EEOC emphasized that they must 
“thoroughly consider all possible reasonable accommodations”—listing examples 
such “wear[ing] a face mask, work[ing] at a social distance from coworkers or non-
employees, work[ing] a modified shift, get[ting] periodic tests,” teleworking, or 
reassignment.28 
 
27  86 Fed. Reg. at 61,568-61,569; see also 86 Fed. Reg. at 61,552 (allowing employers 
to exempt employees “[w]ho are legally entitled to a reasonable accommodation under 
federal civil rights laws because they have a disability or sincerely held religious 
beliefs, practices, or observances that conflict with the vaccination requirement”).  
It bears emphasizing that this case is not a collection of individual Title VII claims. 
The district court rightly recognized that it did not have to determine the merits of a 
future Title VII suit, but that New York’s rule “has effectively foreclosed the pathway 
to seeking a religious accommodation that is guaranteed under Title VII.” Appx.76.  
 
28 See K.2., K.12., and L.3. at EEOC, What You Should Know About COVID-19 and 
the ADA, the Rehabilitation Act, and Other EEO Laws (updated Oct. 28, 2021), 
https://perma.cc/E3WH-WH7Q. 

 
 
 
31 
By contrast, Section 2.61 directly conflicts with Title VII. It requires vaccination 
for all on-site employees, and only allows employers to grant one kind of exemption, 
for medical reasons. Appx.109 at (c), (d). For unvaccinated employees with medical 
exemptions, “any reasonable accommodation may be granted.” Id. at (d)(1). But for 
unvaccinated employees with religious objections, the law allows no exemptions. 
In both its public-facing communications and in its Second Circuit briefing, New 
York took the position that the only “accommodation” consistent with Section 2.61 
was to put the religious health care provider in a position where she would have no 
physical contact with patients or other employees and thus would not qualify as 
“personnel” under the Rule. Appx.41 (citing New York’s brief).29 The Second Circuit 
held there was no conflict between Section 2.61 and Title VII, because “Section 2.61, 
on its face, does not bar an employer from providing an employee with a reasonable 
accommodation that removes the individual from the scope of the Rule.” Appx.42.  
But New York’s so-called accommodation falls far short of the actual 
accommodations New York permits under the medical exemption, which include 
things like continuation of normal duties while wearing PPE. Appx.109 at (d)(1). And 
that, by itself, violates Title VII, because once an employer has authorized an 
accommodation for secular purposes, it “may not be doled out in a discriminatory 
 
29 See also New York Dep’t of Labor, Frequently Asked Questions (FAQs) Regarding 
the August 26, 2021 – Prevention of COVID-19 Transmission of Covered Entities 
Emergency Regulation, https://perma.cc/YZV2-YK8U (allowing “accommodation” but 
specifying that “covered entities cannot permit unvaccinated individuals to continue 
in ‘personnel’ positions such that if they were infected with COVID-19, they could 
potentially expose other covered personnel, patients, or residents to the disease.”). 

 
 
 
32 
fashion” that excludes religious accommodation. Ansonia, 479 U.S. at 71. It is not 
“reasonable” to banish employees who are unvaccinated for religious reasons from the 
worksite while accommodating employees who are unvaccinated for medical reasons 
with alternatives like PPE.30  
Section 2.61’s promulgation immediately caused employers to violate Title VII.31 
Nurse A, Dr. F, Dr. S, and Dr. O had all previously received religious accommodations 
from their employers, only to see those accommodations rescinded once Section 2.61 
made them illegal.32 Appx.148 ¶ 49 (Nurse A); Appx.152 ¶ 77 (Dr. F); Appx.169 ¶ 174 
(Dr. S); Appx.163 ¶ 142 (Dr. O); see Appx.148 ¶ 49 (hospital revoking Nurse A’s 
religious accommodation because it “must follow NYS DOH requirements as they 
 
30  In many cases, exclusion from the worksite is no accommodation at all. Applicants 
who are surgeons and OB/GYNs, for example, cannot repair an eye or deliver a baby 
remotely. See Appx.149-150 (ophthalmologist with surgical practice); Appx.152-153 
(oral surgeon); Appx.156-158, 165-166 (OB/GYNs). 
31  Of course, the employers continue to be liable for violating Title VII. As even the 
Second Circuit has recognized elsewhere, Title VII “explicitly relieves employers from 
any duty to observe a state hiring provision ‘which purports to require or permit’ any 
discriminatory employment practice.” Gulino v. New York State Educ. Dep’t, 460 F.3d 
361, 380 (2d Cir. 2006); see also 42 U.S.C. 2000e-7 (“Nothing in this subchapter shall 
be deemed to exempt or relieve any person from any liability, duty, penalty, or 
punishment provided by any present or future law of any State or political subdivision 
of a State, other than any such law which purports to require or permit the doing of 
any act which would be an unlawful employment practice under this subchapter.”) 
(emphasis added). But as the Second Circuit observed in this case, the employers’ 
defense that they were complying with state law could significantly limit employees’ 
ability to recover damages. Appx.47.  
32  The Second Circuit dismissed this evidence as mere “say-so” and held that it was 
clear error for the district court to rely on it. That was error. These statements 
appeared in Applicants’ verified complaint, and New York never contested them. 
“[S]ince they have not yet been denied or contradicted by countervailing affidavits or 
evidence,” the facts in the verified complaint “must be accepted as true.” O’Connor v. 
Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301, 1302 (1980). 

 
 
 
33 
evolve. This means that [the hospital] can no longer consider any religious 
exemptions to the COVID vaccination even those previously approved”); Appx.163-
164 ¶¶ 142-143 (hospital revoking Dr. O’s religious accommodation because “under 
the emergency regulations the NYS DOH will not permit exemptions or deferrals for 
sincerely held religious beliefs”).  
Conversely, once Section 2.61 was enjoined, health care employers moved quickly 
to accommodate their employees, granting religious exemptions to an estimated total 
of 15,844 health care workers (2.4% of the workforce), including 15 of the 17 
Applicants.33  
But when the Second Circuit vacated the district court injunction, employers once 
again revoked their religious accommodations due to Section 2.61. For example, one 
Applicant received this notice:  
 
33  Rob Frehse, New York State Health Care Workers Will No Longer Have Religious 
Exemption to COVID-19 Vaccine Mandate, Court Rules, CNN (Oct. 29, 2021, 10:29 
PM), https://perma.cc/UK6M-EHKR. Following the district court injunction in this 
case, 15 out of 17 Applicants either received religious exemptions for the first time, 
had their original exemptions restored, or were allowed to continue working under 
indefinite status. Appx.201-202. 

 
 
 
34 
 
 This leads to the most obvious Title VII violation: the mandate has forced 
employers who can accommodate their employees’ religious beliefs and want to 
accommodate them to nonetheless exclude them from the worksite. See supra at 7-8 
& n.29.  Instead, no matter how easy it might be to accommodate employees, and no 
matter how dramatic the consequences from letting them go, the mandate requires 
exclusion. Title VII requires the exact opposite. 
III. Immediate injunctive relief is warranted to prevent irreparable harm 
and would serve the public interest. 
The Second Circuit found New York’s law compatible with Title VII. But on 
Wednesday, New York doubled down in this Court, passing up the chance to moderate 
its position after the federal government’s new rules reiterated Title VII’s 
requirement of reasonable accommodation, and instead admitting its desire to 
“interefer[e]” with employers granting religious exemptions. Response Br. at 13, We 
the Patriots. In light of New York’s unyielding position, Applicants have clearly 

 
 
 
35 
established that New York is violating both the First Amendment (under Smith, 
Sherbert, or any other standard) and Title VII. Absent immediate relief, Applicants 
face irreparable harm not only to their First Amendment and civil rights, injuries 
alone sufficient to justify protection pending appeal, Diocese of Brooklyn, 141 S. Ct. 
at 67, but also to their ability to provide for their families—losing their jobs, losing 
their admitting privileges or residencies, losing the ability to obtain other jobs in their 
fields, being barred from receiving unemployment, and potentially being unable to 
obtain damages.  
Applicants are already receiving notices of termination or unpaid leave. See supra 
at 34. They need immediate relief. Providing that relief and allowing essential 
workers to be accommodated by their willing employers will help, rather than harm, 
the public interest because compliance with the First Amendment and Title VII is in 
the public interest, and because the public is not well served by firing healthcare 
workers who are in short supply.  
For these reasons, “applicants have clearly established their entitlement to relief 
pending appellate review.” Diocese of Brooklyn, 141 S. Ct. at 66 (granting injunction 
pending appeal to application filed under 28 U.S.C. 1651(a)). 
IV. Alternatively, Applicants respectfully request that the Court either stay 
enforcement of New York’s mandate or treat this application as a 
petition for certiorari and grant certiorari forthwith.  
Stay. In the alternative, Applicants respectfully request that the Court grant a 
stay of enforcement of the mandate to permit a “reasonable time” for Applicants to 
petition for certiorari. See 28 U.S.C. 2101(f); Sup. Ct. R. 23. A stay is appropriate 
upon a showing that there is a “fair prospect” that the lower court judgment will be 

 
 
 
36 
reversed, a likelihood of “irreparable harm,” and that there is “a reasonable 
probability that four Justices will consider the issue sufficiently meritorious to grant 
certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (further 
noting that, in close cases, courts will also “balance the equities and weigh the relative 
harms”).  
 
As shown above, there is more than a “fair prospect” that the lower court judgment 
will be reversed, given its conflict with so many of this Court’s decisions, that 
Applicants face obvious irreparable harms, and that the equities and relative harms 
favor Applicants. Furthermore, in light of the recent three-Justice dissents in Mills, 
2021 WL 5027177, Roman Catholic Diocese v. Emami, No. 20-1501, 2021 WL 5043558 
(Nov. 1, 2021), and Dignity Health v. Minton, No. 19-1135, 2021 WL 5043742 (Nov. 
1, 2021), there is at least a “reasonable probability” that a fourth justice will consider 
the questions presented sufficiently worthy of certiorari. Hollingsworth, 558 U.S. at 
190.  
 
Certiorari.  While New York has been an outlier on multiple fronts, religiously 
discriminatory COVID-19 restrictions are an ongoing problem of nationwide scope. 
More to the point, New York’s targeted denial of religious exemptions—coming less 
than a year after its targeted shutdown of houses of worship—is itself an issue of 
“imperative public importance,” Sup. Ct. R. 11. Prompt merits consideration by this 
Court will provide much-needed guidance to governments, employers, employees, and 
lower courts as to how to navigate this important group of cases before many people 
suffer harms even the panel recognized would be irreparable.  

 
 
 
37 
 
Certiorari is further warranted given the conflicts between the Second Circuit’s 
decision and decisions of other circuits and of this Court. The Second Circuit declined 
to apply heightened scrutiny even though the Rule treated religious objectors worse 
than healthcare workers with a medical exemption. By contrast, the Sixth Circuit 
subjected a Michigan college’s COVID-19 vaccination order to heightened scrutiny 
because it discriminated against student religious objectors and in favor of other 
students, including students with a medical exemption. Dahl, 15 F.4th 728. And the 
Third Circuit has held that even a single secular exemption to an otherwise-
applicable prohibition can render a law not neutral and generally applicable as 
applied to religion, regardless of whether other secular conduct is likewise banned. 
Fraternal Ord. of Police v. City of Newark, 170 F.3d 359, 365-366 (3d Cir. 1999); see 
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2613 (Kavanaugh, J., 
dissenting) (“The point is not whether one or a few secular analogs are regulated. The 
question is whether a single secular analog is not regulated.” (citation omitted) 
(emphasis in original)).  
 
Moreover, as explained above, the Second Circuit’s Free Exercise analysis runs 
afoul of this Court’s well-settled precedent under Smith, Sherbert, or any other 
standard. This case—in which New York’s punitive treatment of religious objectors 
is a textbook violation of the Free Exercise Clause—is the proper vehicle to resolve 
these conflicts and remind the Nation that, even in a pandemic, the Constitution and 
the Courts continue to provide protection. 

 
 
 
38 
CONCLUSION 
 
The Court should issue an injunction prohibiting enforcement of New York’s 
mandate until disposition of a petition for certiorari. Alternatively, the Court should 
convert the application to a petition for certiorari and grant certiorari now to address 
these important issues on the merits docket.  
 
Respectfully submitted, 
/s/ Thomas Brejcha 
MARK RIENZI 
DANIEL BLOMBERG  
DIANA VERM THOMSON 
ADÈLE KEIM 
KAYLA A. TONEY 
JAMES J. KIM 
THE BECKET FUND FOR  
   RELIGIOUS LIBERTY 
1919 Pennsylvania Ave. NW,  
   Suite 400 
Washington, D.C. 20006  
 
 
 
 
(202) 955-0095 
mrienzi@becketlaw.org 
 
   Counsel of Record 
STEPHEN M. CRAMPTON 
THOMAS MORE SOCIETY 
309 West Washington St., Suite 1250 
Chicago, IL 60606 
tbrejcha@thomasmoresociety.org 
CHRISTOPHER A. FERRARA 
THOMAS MORE SOCIETY 
148-29 Cross Island Parkway 
Whitestone, Queens NY 11357 
(718) 357-1040 
MICHAEL MCHALE 
THOMAS MORE SOCIETY 
10506 Burt Circle, Suite 110 
Omaha, NE 68114 
 
Dated: November 12, 2021

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