Amicus Brief of John Doe 1 (Faith-Based Senior Living Center) — Dr. A v. Hochul

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A motion for leave to file, with an attached proposed amicus curiae brief, submitted November 18, 2021 in Dr. A, et al. v. Kathy Hochul, Governor of New York, et al., No. 21A145, in the Supreme Court of the United States, addressed to the Circuit Justice for the Second Circuit. The movant is identified as John Doe 1, President of the Board of a faith-based senior living facility in New York, appearing in support of the applicants' emergency application for a writ of injunction. It asks leave to file in an unbound format and without the ten days advance notice ordinarily required, and states that all parties consent. The brief argues that the amicus faces immediate and irreparable injury before Monday, November 22 under the Governor's COVID-19 vaccine mandate for healthcare workers, and that the mandate burdens First Amendment rights and cannot satisfy strict scrutiny.

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No. 21A145 
IN THE 
Supreme Court of the United States 
 
DR. A, ET AL., 
 
Applicants, 
V. 
KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL., 
 
Respondents. 
 
To the Honorable Sonia Sotomayor, 
Associate Justice of the United States Supreme Court 
and Circuit Justice for the Second Circuit 
MOTION BY JOHN DOE 1, PRESIDENT OF THE BOARD OF 
FAITH-BASED SENIOR LIVING CENTER IN NEW YORK, 
WITH ATTACHED PROPOSED AMICUS CURIAE BRIEF 
IN SUPPORT OF APPLICANTS, FOR LEAVE TO FILE BRIEF, 
IN AN UNBOUND FORMAT ON 8 ½- BY 11-INCH PAPER, 
AND WITHOUT TEN DAYS ADVANCE NOTICE TO PARTIES 
 
Mathew D. Staver 
 
Counsel of Record 
Anita L. Staver 
Horatio G. Mihet 
Roger K. Gannam 
Daniel J. Schmid 
LIBERTY COUNSEL 
P.O. Box 540774 
Orlando, FL 32854 
(407) 875-1776 
court@LC.org |hmihet@LC.org 
rgannam@LC.org | dschmid@LC.org 
Counsel for Amicus Curiae 
November 18, 2021 
 

 
1 
 
Amicus Curiae, John Doe 1, President of the Board of a faith-based senior 
living facility in the State of New York, respectfully moves this Court for leave to file 
a brief of amicus curiae in support of Applicants’ Emergency Application for Writ of 
Injunction, in an unbound format on 8 ½- by 11-inch paper, and without ten days 
advance notice to the parties of Amicus Curiae’s intent to file as ordinarily required. 
 
Given the emergency nature of the Application, and given the irreversible and 
irreparable injury Doe will suffer absent relief from this Court, it was not feasible to 
give ten day notice to the Parties, but Doe nevertheless obtained the position of the 
Parties with respect to the filing of the instant Motion. All Parties consent to the 
filing of the proposed amicus brief. 
 
Amicus Curiae is John Doe 1, President of the Board of Directors of a faith-
based senior living facility in New York. Doe’s facility is a small, faith-based senior 
living facility currently providing religious-based care to fifteen residents. Doe’s 
facility has a small number of employees, all of whom share the faith-based mission 
of the facility, and Doe and the employees want religious accommodations and 
exemptions from the Governor’s COVID-19 vaccine mandate on healthcare workers. 
Because of the mandate, Doe and the employees are unable to receive religious 
accommodations, and Doe faces the threat of penalties for his failure to require its 
employees to accept or receive a COVID-19 vaccine in direct conflict with their 
sincerely held religious beliefs.  
 
Doe has been put to the unconscionable and unconstitutional choice of closing 
a facility that has existed for nearly 50 years and sending the residents under its care 

 
2 
to other facilities and uprooting their lives, or facing crippling sanctions for failure to 
abide by the Governor’s COVID-19 vaccine mandate on healthcare workers. The 
harm suffered by Doe is not a speculative or future injury. Doe has been 
given until Monday, November 22, 2021 to comply with the mandate or face 
penalties for operating a senior living facility with unvaccinated employees. 
The New York mandate requires Doe to close on Monday, since his employees cannot 
violate their sincere religious beliefs. Yet, other laws also prevent Doe from abruptly 
closing on Monday because he is required to find other suitable locations for the 
residents. Doe has no choice but to continue to operate in a noncompliant status while 
he attempts to secure other placement for the residents. 
 
For the foregoing reasons, Doe respectfully requests that the Court grant this 
unopposed motion to file the attached proposed amicus brief and accept it in the 
format and at the time submitted.  
 
 
 
 
 
 
Respectfully submitted, 
/s/ Mathew D. Staver 
 
 
Mathew D. Staver 
 
Counsel of Record 
Anita L. Staver 
Horatio G. Mihet 
Roger K. Gannam 
Daniel J. Schmid 
LIBERTY COUNSEL 
 
 
 
 
 
 
P.O. Box 540774 
 
Orlando, FL 32853 
(407) 875-1776 
court@LC.org |hmihet@LC.org 
rgannam@LC.org | dschmid@LC.org 
 
Counsel for Amicus Curiae 

 
 
No. 21A145 
IN THE 
Supreme Court of the United States 
 
DR. A, ET AL., 
 
Applicants, 
V. 
KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL., 
 
Respondents. 
 
To the Honorable Sonia Sotomayor, Associate Justice of the United 
States Supreme Court and Circuit Justice for the Second Circuit 
 
BRIEF OF AMICUS CURIAE JOHN DOE 1, PRESIDENT OF THE BOARD 
OF FAITH-BASED SENIOR LIVING CENTER IN NEW YORK IN 
SUPPORT OF APPLICANTS’ EMERGENCY APPLICATION FOR WRIT 
OF INJUNCTION 
 
Mathew D. Staver 
 
Counsel of Record 
Anita L. Staver 
Horatio G. Mihet 
Roger K. Gannam 
Daniel J. Schmid 
LIBERTY COUNSEL 
P.O. Box 540774 
Orlando, FL 32854 
(407) 875-1776 
court@LC.org |hmihet@LC.org 
rgannam@LC.org | dschmid@LC.org 
Counsel for Amicus Curiae 
November 18, 2021 
 

 
i 
TABLE OF CONTENTS 
TABLE OF CONTENTS……………………………………………………………………….i 
 
TABLE OF AUTHORITIES…………………………………………………………………..ii 
 
INTEREST OF AMICUS CURIAE…………………………………………………………..1 
 
INTRODUCTION AND SUMMARY OF THE ARGUMENT…………………………….2 
 
ARGUMENT…………………………………………………………………………………….3 
 
I. 
AMICUS CURIAE FACES IMMEDIATE, IRREPARABLE, AND 
UNCONSTITUTIONAL INJURY ABSENT INJUNCTIVE RELIEF 
  
FROM THIS COURT BEFORE MONDAY, NOVEMBER 22……………………3 
 
II. 
AMICUS CURIAE’S IMMEDIATE AND IRREPARABLE INJURY IS A 
DIRECT RESULT OF THE GOVERNOR’S UNCONSTITUTIONAL 
COVID-19 VACCINE MANDATE WHICH INFRINGES ON FIRST 
  
AMENDMENT LIBERTIES………………………………………………………….5 
 
A. 
Requiring Doe to Comply With the Governor’s COVID-19 Vaccine 
Mandate While Refusing Exemptions for Religious Objectors 
  
Violates the First Amendment………………………………………………..5 
 
B. 
The Governor’s Favorable Treatment of Nonreligious Exemptions 
While Discriminating Against Religious Exemptions Violates the 
  
First Amendment………………………………………………………………8 
 
C. 
New York’s Discriminatory Treatment of Religious Exemptions 
  
Cannot Survive Strict Scrutiny……………………………………………..10 
 
CONCLUSION………………………………………………………………………………..12 
 
 
 
 
 
 

 
ii 
TABLE OF AUTHORITIES 
CASES 
Agudath Israel of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020)…………………….11, 12 
 
Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016)……………………………….11 
 
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)……………..……………..6, 7 
 
Does v. Mills, No. 21A90, 2021 WL 5027177 (U.S. Oct. 29, 2021)………………2, 9, 10 
 
Elrod v. Burns, 427 U.S. 347 (1976)…………………………………………………………4 
 
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,  
170 F.3D 359 (3d Cir. 1999)………………………………...…………………………8, 9, 10 
 
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020)……………12 
 
McCullen v. Coakley, 134 S. Ct. 2518 (2014)……………………………….………..11, 12 
 
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)……...………..4, 8 
 
South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021)……………..8 
 
Tandon v. Newsom, 141 S. Ct. 1294 (2021)……………………….………………..4, 8, 11 
 
STATUTES 
 
10 N.Y.C.R.R. §401.3(g)–(i)…………………………………………………………………...5 
 
OTHER 
 
N.Y. Dep’t of Health, New York State Department of Health Office of Primary 
Care and Health Systems Management Nursing Home Facility Closure Plan 
Guidelines 
(Dec. 
31, 
2017), 
https://www.health.ny.gov/professionals/nursing_home_administrator/docs/da 
l_nh_17-06_revised_nh_closure_guidelines_att.pdf………………………………………5 
 
 
 
 

 
1 
INTEREST OF AMICUS CURIAE1 
 
Amicus Curiae is John Doe 1, President of the Board of Directors of a faith-
based senior living facility in New York. Doe’s facility is a small, faith-based senior 
living facility currently providing religious-based care to fifteen residents. Doe’s 
facility has a small number of employees, all of whom share the faith-based mission 
of the facility, and Doe and the employees would like to request and receive religious 
accommodations and exemptions from the Governor’s COVID-19 vaccine mandate on 
healthcare workers. Because of the mandate, Doe’s employees are unable to receive 
religious accommodations, and Doe faces the threat of penalties for his failure to 
require his employees to accept or receive a COVID-19 vaccine in direct conflict with 
their sincerely held religious beliefs. Doe is also one of many Plaintiffs in a separate 
litigation, Does v. Hochul, No. 1:21-cv-5067 (E.D.N.Y.), similar to Applicants’, 
challenging the Governor’s unconstitutional COVID-19 vaccine mandate. 
 
Doe has been put to the unconscionable and unconstitutional choice of closing 
a facility that has existed for nearly 50 years and sending the residents under his 
care to other facilities and uprooting their lives, or facing crippling sanctions for 
failure to abide by the Governor’s COVID-19 vaccine mandate on healthcare workers. 
The harm suffered by Doe is not a speculative or future injury. Doe has been 
given until Monday, November 22, 2021 to comply with the mandate or face 
 
1  
No counsel for a party authored this brief in whole or in part, and no person 
other than amicus curiae, its members, or its counsel made a monetary contribution 
to fund the brief’s preparation or submission. This brief has been submitted with an 
unopposed motion for leave to file it. 

 
2 
penalties for operating a senior living facility with unvaccinated employees. 
The New York mandate requires Doe to close on Monday, since his employees cannot 
violate their sincere religious beliefs. Yet, other laws also prevent Doe from abruptly 
closing on Monday because he is required to find other suitable locations for the 
residents. Doe has no choice but to continue to operate in a noncompliant status while 
he attempts to secure other placement for the residents. And the only reason Doe 
faces this unconscionable choice is because of the Governor’s COVID-19 vaccine 
mandate. 
INTRODUCTION AND SUMMARY OF THE ARGUMENT 
 
In Doe’s separate challenge to the Governor’s mandate, despite his requesting 
emergency relief in the form of a temporary restraining order and preliminary 
injunction, the Eastern District has stayed its hand multiple times. The court initially 
stayed its hand pending the resolution of the temporary restraining order and 
preliminary injunction issued by the Northern District in Applicants’ case. And the 
Eastern District again stayed its hand during the pendency of the Second Circuit’s 
consideration of the appeal below in Applicants’ case. In addition to Applicants and 
Doe, numerous other individuals face similar irreparable harm from similar 
mandates. See, e.g., Does v. Mills, No. 21A90, 2021 WL 5027177 (U.S. Oct. 29, 2021). 
Like 
Applicants, 
Doe 
currently 
faces 
immediate, 
irreparable, 
and 
unconstitutional injury to his cherished First Amendment liberties and those of his 
employees. Doe faces an imminent deadline of November 22 to bring his staff into 
compliance with the Governor’s mandate or face crippling fines and the closure of his 

 
3 
facility. And, the reason for this unconscionable choice is simply his desire to provide 
exemptions and accommodations to his employees with sincerely held religious 
objections to the COVID-19 vaccines. Additionally, forcing Doe and Applicants to 
choose between their sincerely held religious beliefs and compliance with a 
government mandate is per se irreparable harm. 
 
Doe desires to respect the sincerely held religious beliefs of his employees at 
the faith-based senior living facility in New York. The Governor’s mandate prohibits 
him from doing so and forces him to choose between his and his employees’ religious 
beliefs and compliance with an unconstitutional mandate. This substantial burden, 
and the singling out of Doe’s and Applicants’ sincerely held religious beliefs for 
especially harsh treatment, runs roughshod over the First Amendment. The 
Governor’s mandate is neither neutral nor generally applicable, it cannot survive 
strict scrutiny, and it imposes grave, immediate, and irreparable harm on Doe and 
Applicants. The Application should be granted, and the Governor enjoined from 
enforcing her unconstitutional mandate. 
ARGUMENT 
I. 
AMICUS 
CURIAE 
FACES 
IMMEDIATE, 
IRREPARABLE, 
AND 
UNCONSTITUTIONAL INJURY ABSENT INJUNCTIVE RELIEF 
FROM THIS COURT BEFORE MONDAY, NOVEMBER 22. 
 
As Justice Gorsuch recently pointed out in a challenge to Maine’s similarly 
unconstitutional vaccine mandate on healthcare workers, 
This case presents an important constitutional question, a serious error, 
and an irreparable injury. Where many other States have adopted 
religious exemptions, Maine has charted a different course. There, 
healthcare workers who have served on the front line of a pandemic for 
the last 18 months are now being fired and their practices shuttered. All 

 
4 
for adhering to their constitutionally protected religious beliefs. Their 
plight is worthy of our attention. I would grant relief. 
 
Does 1–3 v. Mills, No. 21A90, 2021 WL 5027177, at *4 (U.S. Oct. 29, 2021) (Gorsuch, 
J., dissenting) (emphasis added).  
 
The First Amendment injury befalling Doe and Applicants, and others like 
them in New York, is unquestionably irreparable harm as a matter of settled law. 
As this Court has held time and again, litigants “are irreparably harmed by the loss 
of free exercise rights for even minimal periods of time.” Tandon v. Newsom, 141 S. 
Ct. 1294, 1297 (2021). Indeed, “[t]here can be no question that the challenged 
[mandate], if enforced, will cause irreparable harm,” Roman Catholic Diocese of 
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020), because “[t]he loss of First Amendment 
freedoms, for even minimal periods of time, unquestionably constitutes irreparable 
injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). 
 
Nowhere is the irreparable injury more pronounced than the immediate harm 
facing Doe. On Monday, November 15, 2021, the government of the State of New 
York sent Doe’ facility a letter informing him that no healthcare workers at Doe’s 
facility could continue to work around residents and patients if they remained 
unvaccinated. The deadline given to Doe’s facility for compliance is Monday, 
November 22, 2021.  
Doe has one employee who received a COVID-19 vaccine, and the remainder 
of Doe’s employees all requested religious exemptions and accommodations to from 
mandatory COVID-19 vaccination. While Doe desired to grant the religious 
accommodation requests, the State informed Doe that doing so would be a violation 

 
5 
of state law and would subject Doe to crippling fines for noncompliance with the 
Governor’s mandate. It is impossible for Doe to both comply with the Governor’s 
mandate, which requires all healthcare personnel at Doe’s facility to be vaccinated 
against COVID-19, and to comply with the obligations New York law imposes upon 
the facility for providing quality care for residents at its facility. See 10 N.Y.C.R.R. 
§401.3(g)–(i). See also N.Y. Dep’t of Health, New York State Department of Health 
Office of Primary Care and Health Systems Management Nursing Home Facility 
Closure 
Plan 
Guidelines 
(Dec. 
31, 
2017), 
https://www.health.ny.gov/professionals/nursing_home_administrator/docs/dal_nh_
17-06_revised_nh_closure_guidelines_att.pdf. Thus, Doe faces the unconscionable 
and unconstitutional choice of closing his facility and sending its cherished elderly 
residents packing, or suffering crippling monetary fines for his inability to staff his 
facility with vaccinated healthcare personnel.  
And even if Doe chooses to close his facility rather than operate in violation of 
the Governor’s vaccine mandate, he will still have to violate the mandate for as long 
as it takes to find other beds and facilities for all his residents—he must keep his 
employees who object to vaccination on religious grounds to provide quality care to 
his residents until they are relocated. Thus, under any scenario, absent an injunction 
from this Court, Doe will be forced to violate the law (potentially multiple laws) 
because he cannot fully comply with both the Governor’s mandate and the other 
regulations applicable to senior living facility at the same time.  

 
6 
II. 
AMICUS CURIAE’S IMMEDIATE AND IRREPARABLE INJURY IS A 
DIRECT RESULT OF THE GOVERNOR’S UNCONSTITUTIONAL 
COVID-19 VACCINE MANDATE WHICH INFRINGES ON FIRST 
AMENDMENT LIBERTIES. 
A. 
Requiring Doe to Comply With the Governor’s COVID-19 
Vaccine Mandate While Refusing Exemptions for Religious 
Objectors Violates the First Amendment. 
 
Doe runs a senior care facility in New York with employees who have sincerely 
held religious objections to the Governor’s COVID-19 Vaccine Mandate. (See Does v. 
Hochul, No. 1:21-cv-5067 (E.D.N.Y.), Doc. 1, V. Compl., ¶ 78.) Doe has sincerely held 
religious beliefs that he and his faith-based facility are to honor the sincerely held 
religious beliefs of their employees who object to the COVID-19 vaccines. (Id.) Doe 
has been threatened with closure of his facility and loss of his business license for 
considering and granting religious accommodations and exemptions for his 
employees. (Id. ¶¶ 79–80.) 
The Governor’s mandate and its threat of revocation of Doe’s ability to operate 
his facility for failure to comply is analogous to the mandates struck down by the 
Supreme Court in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). There, 
the federal government mandated that Hobby Lobby (a privately held corporation 
with owners having sincerely held religious beliefs against abortion) provide 
insurance coverage for its employees to receive abortion-inducing drugs and 
contraceptives. 573 U.S. at 690–91. There, the Court noted that the plaintiffs—as 
here—  
have a sincere religious belief that life begins at conception. They 
therefore object on religious grounds to providing health insurance that 
covers methods of birth control that, as HHS acknowledges . . . may 
result in the destruction of an embryo. By requiring the Hahns and 

 
7 
Greens and their companies to arrange for such coverage, the HHS 
mandate demands that they engage in conduct that seriously violates 
their religious beliefs.  
 
Id. at 720 (emphasis added). Here, too, the Governor’s mandate imposes a substantial 
burden on Doe’s religious beliefs. In fact, Doe must either mandate that his employees 
receive a vaccine they find objectionable according to their sincerely held religious 
beliefs, or fire them. Moreover, Doe faces the choice of suffering crippling fines for 
failure to disdain his employees’ sincerely held religious beliefs (which he shares) or 
shutting his doors and sending his cherished residents packing. Such an 
unconscionable choice is a substantial burden on Doe’s free exercise of his religious 
beliefs. Indeed, the First Amendment can hardly be thought to countenance as “a 
tolerable result to put a family-run business to the choice of violating their sincerely 
held religious beliefs or making all of their employees lose their existing 
[employment].” Id. at 722. 
In Hobby Lobby, as here, the Court was faced with a government mandate that 
conflicted with the sincerely held religious beliefs of the plaintiff business owners. 
There, as here, compliance with the government’s mandate imposed a substantial 
burden on the plaintiffs’ sincerely held religious beliefs. There, as here, the 
government’s restrictions on the plaintiffs’ sincerely held religious beliefs were 
subject to (and failed) strict scrutiny. Because the New York Governor’s COVID-19 
Vaccine Mandate is not neutral or generally applicable, and provides for 
individualized medical exemptions but not religious, the mandate is subject to strict 
scrutiny, and the Governor cannot satisfy that burden. 

 
8 
B. 
The 
Governor’s 
Favorable 
Treatment 
of 
Nonreligious 
Exemptions 
While 
Discriminating 
Against 
Religious 
Exemptions Violates the First Amendment. 
 
“[G]overnment regulations are not neutral and generally applicable, and 
therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat 
any comparable secular activity more favorably than religious exercise.” Tandon v. 
Newsom, 141 S. Ct. 1294, 1296 (2021). In fact, “the regulations cannot be viewed as 
neutral because they single out [religion] for especially harsh treatment.” Roman 
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020). “When a state so 
obviously targets religion for differential treatment, our job becomes much clearer.” 
South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 717 (2021) 
(statement of Gorsuch, J.). 
 
In Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, Justice 
(then-Judge) Alito wrote unequivocally for the court that “[b]ecause the Department 
makes exemptions from its [no beards] policy for secular reasons and has not offered 
any substantial justification for refusing to provide similar treatment for officers who 
are required to wear beards for religious reasons, we conclude that the Department’s 
policy violates the First Amendment.” 170 F.3d 359, 360 (3d Cir. 1999). There, like 
New York here, the city argued that it was required to provide medical 
accommodations under federal law but that religious exemptions were not required. 
Id. at 365. The court squarely rejected that rationale: “It is true that the ADA requires 
employers to make reasonable accommodations for individuals with disabilities. 
However, Title VII of the Civil Rights Act of 1964 imposes an identical obligation on 
employers with respect to accommodating religion.” Id. (cleaned up). Thus, the court 

 
9 
held, “we cannot accept the Department’s position that its differential treatment of 
medical exemptions and religious exemptions is premised on a good-faith belief that 
the former may be required by law while the latter are not.” Id. (See also Does v. Mills, 
No. 21A90, Application for Writ of Injunction 16–29.) 
 
As Justice Gorsuch noted in Does v. Mills, “Slice it how you will, medical 
exemptions and religious exemptions are on comparable footing when it comes to the 
State’s asserted interests.” 2021 WL 5027177, at *3 (Gorsuch, J., dissenting). That 
sentiment was shared equally by Justice Alito in Fraternal Order of Police: 
We also reject the argument that, because the medical exemption is not 
an “individualized exemption,” the Smith /Lukumi rule does not apply. 
While the Supreme Court did speak in terms of “individualized 
exemptions” in Smith and Lukumi, it is clear from those decisions that 
the Court’s concern was the prospect of the government’s deciding that 
secular motivations are more important than religious motivations. If 
anything, this concern is only further implicated when the government 
does not merely create a mechanism for individualized exemptions, but 
instead, actually creates a categorical exemption for individuals with a 
secular objection but not for individuals with a religious objection. 
 
Fraternal Order of Police, 170 F.3d at 365 (cleaned up). The same is true here. New 
York maintained a policy that permitted religious exemptions and medical 
exemptions to mandatory vaccinations, but New York specifically removed religious 
exemptions while maintaining medical exemptions. (See Application 6–8.) And that 
discriminatory removal of a religious exemption while maintaining a medical 
exemption violates the First Amendment. See Fraternal Order of Police, 170 F.3d at 
365 (“Therefore, we conclude that the Department’s decision to provide medical 
exemptions while refusing religious exemptions is sufficiently suggestive of 

 
10 
discriminatory intent so as to trigger heightened scrutiny under Smith and 
Lukumi.”). 
 
Here, New York contends (and the Second Circuit agreed) that secular, medical 
reasons for declining vaccination are important enough to overcome the State’s 
purported interest in universal mandatory vaccination, but that religious reasons for 
declining vaccination are not. Such a value judgment does not legitimize a 
discriminatory policy: 
[T]he medical exemption raises concern because it indicates that the 
Department has made a value judgment that secular (i.e., medical) 
motivations for wearing a beard are important enough to overcome its 
general interest in uniformity but that religious motivations are not. As 
discussed above, when the government makes a value judgment in favor 
of secular motivations, but not religious motivations, the government’s 
actions must survive heightened scrutiny. 
 
170 F.3d at 366 (emphasis added). Essentially, as here, “[w]e thus conclude that the 
Department’s policy cannot survive any degree of heightened scrutiny and thus 
cannot be sustained.” Id. at 367. 
C. 
New York’s Discriminatory Treatment of Religious Exemptions 
Cannot Survive Strict Scrutiny.  
 
Even assuming that imposing a mandatory COVID-19 vaccination 
requirement on healthcare workers in New York without religious exemptions is 
supported by a compelling government interest,2 the Vaccine Mandate still fails strict 
 
2  
John Doe 1 agrees with Justice Gorsuch’s statement in Does v. Mills, that 
“stemming the spread of COVID-19 qualified as a compelling interest [but] that this 
interest cannot qualify as such forever.” 2021 WL 5027177, at *3 (Gorsuch, J., 
dissenting). 

 
11 
scrutiny because it is not the least restrictive means of achieving the government’s 
interest. As the Supreme Court said in Tandon,  
narrow tailoring requires the government to show that measures less 
restrictive of the First Amendment activity could not address its interest 
in reducing the spread of COVID. Where the government permits other 
activities to proceed with precautions, it must show that the religious 
exercise at issue is more dangerous than those activities even when the 
same precautions are applied. Otherwise, precautions that suffice for 
other activities suffice for religious exercise too. 
 
141 S. Ct. at 1296–97. Unfortunately for New York, nearly every other state has found 
a way to accommodate religion under the same alternative protective measures 
Applicants and Doe request here. New York cannot support its position that the same 
alternative measures approved and effective in other states simply do not work in 
New York.  
 
And the reason New York’s contention fails is simple: To satisfy its burden 
under strict scrutiny, the government must show it “seriously undertook to address 
the problem with less intrusive tools readily available to it,” meaning that it 
“considered different methods that other jurisdictions have found effective.” 
McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014); see also Agudath Israel of Am. v. 
Cuomo, 983 F.3d 620, 633 (2d Cir. 2020) (same). And the Governor must “show either 
that substantially less-restrictive alternatives were tried and failed, or that the 
alternatives were closely examined and ruled out for good reason,” Bruni v. City of 
Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016), and that “imposing lesser burdens on 
religious liberty ‘would fail to achieve the government’s interest, not simply that the 

 
12 
chosen route was easier.’” Agudath Israel, 983 F.3d at 633 (quoting McCullen, 134 S. 
Ct. at 495). 
 
“Many other States have made do with a religious exemption in comparable 
vaccine mandates . . . [New York’s] decision to deny a religious exemption in these 
circumstances doesn’t just fail the least restrictive means test, it borders on the 
irrational.” Does, 2021 WL 5027177, at *4 (Gorsuch, J., dissenting) (emphasis added). 
This is so because “restrictions inexplicably applied to one group and exempted from 
another do little to further [the government’s] goals and do much to burden religious 
freedom.” Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 615 (6th Cir. 2020). 
The government cannot meet its burden under strict scrutiny. 
CONCLUSION 
 
Because the Governor’s mandate is imposing irreparable, immeasurable, and 
unconscionable injury on Applicants and Doe, the Application should be granted. 
 
Respectfully submitted, 
 
Mathew D. Staver 
 
Counsel of Record 
Anita L. Staver 
Horatio G. Mihet 
Roger K. Gannam 
Daniel J. Schmid 
LIBERTY COUNSEL 
P.O. Box 540774 
 
Orlando, FL 32853 
(407) 875-1776 
court@LC.org |hmihet@LC.org 
rgannam@LC.org | dschmid@LC.org 
 
Counsel for Amicus Curiae

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