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Application - Scotus
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No. ________
IN THE SUPREME COURT OF THE UNITED STATES
JANE DOES 1–6, JOHN DOES 1–3, JACK DOES 1–1000, JOAN DOES 1–1000,
Applicants,
v.
JANET T. MILLS, in her official capacity as Governor of the State of Maine,
JEANNE M. LAMBREW, in her official capacity as Commissioner of the Maine
Department of Health and Human Services, NIRAV D. SHAH, in his official
capacity as Director for the Maine Center for Disease Control and Prevention,
MAINEHEALTH, GENESIS HEALTHCARE OF MAINE, LLC, GENESIS
HEALTHCARE, LLC, NORTHERN LIGHT HEALTH FOUNDATION,
MAINEGENERAL HEALTH,
Respondents.
To The Honorable Stephen G. Breyer,
Associate Justice of the United States Supreme Court
and Circuit Justice for the First Circuit
EMERGENCY APPLICATION FOR WRIT OF INJUNCTION
PENDING DISPOSITION OF PETITION FOR WRIT OF CERTIORARI
RELIEF REQUESTED BY OCTOBER 26, 2021
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 Applicants
PARTIES AND DISCLOSURE STATEMENT
Applicants are JANE DOES 1–6, JOHN DOES 1–3, JACK DOES 1–1000, and
JOAN DOES 1–1000, none of which has any parent corporation or publicly held
shareholder. Respondents are JANET T. MILLS, in her official capacity as Governor
of the State of Maine, JEANNE M. LAMBREW, in her official capacity as
Commissioner of the Maine Department of Health and Human Services, NIRAV D.
SHAH, in his official capacity as Director for the Maine Center for Disease Control
and Prevention, MAINEHEALTH, GENESIS HEALTHCARE OF MAINE, LLC,
GENESIS HEALTHCARE, LLC, NORTHERN LIGHT HEALTH FOUNDATION,
MAINEGENERAL HEALTH.
DIRECTLY RELATED PROCEEDINGS
Does v. Mills, No. 21-1826, Opinion affirming denial of preliminary injunction (1st
Cir. Oct. 19, 2021), appended hereto as EXHIBIT 1.
Does v. Mills, No. 21A83, Order denying application for writ of injunction pending
appeal without prejudice (U.S. Oct. 19, 2021), appended hereto as EXHIBIT 2.
Does v. Mills, No. 21-1826, Order denying emergency motion for injunction pending
appeal (1st Cir. Oct. 15, 2021), appended hereto as EXHIBIT 3.
Does v. Mills, No. 1:21-cv-242-JDL, Order denying motion for injunction pending
appeal (D. Me. October 13, 2021), appended hereto as EXHIBIT 4.
Does v. Mills, No. 1:21-cv-242-JDL, Order denying motion for preliminary injunction
(D. Me. October 13, 2021), appended hereto as EXHIBIT 5.
i
TABLE OF CONTENTS
PARTIES AND DISCLOSURE STATEMENT .............................................................. i
DIRECTLY RELATED PROCEEDINGS ...................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iv
INTRODUCTION .......................................................................................................... 1
RELIEF SOUGHT ......................................................................................................... 4
JURISDICTION AND TIMING .................................................................................... 6
FACTUAL BACKGROUND AND URGENCIES JUSTIFYING EMERGENCY
RELIEF .......................................................................................................................... 7
LEGAL ARGUMENT .................................................................................................. 16
I. APPLICANTS HAVE A CLEAR AND INDISPUTABLE RIGHT TO
RELIEF BECAUSE DEFENDANTS’ INTENTIONAL REMOVAL OF
RELIGIOUS EXEMPTIONS FROM THE VACCINE MANDATE WHILE
ALLOWING MEDICAL EXEMPTIONS VIOLATES THE FIRST
AMENDMENT. ................................................................................................. 16
A. Maine’s Mandate on John Doe 1’s Private Practice Violates the First
Amendment. ........................................................................................... 16
B. Maine’s Singling Out of Religious Employees Who Decline
Vaccination for Especially Harsh Treatment Is Not Religiously
Neutral. ................................................................................................... 18
C. The Vaccine Mandate’s More Favorable Treatment of Employees
Declining Vaccination for Secular, Medical Reasons as Compared to
Employees Declining Vaccination for Religious Reasons Is Not
Generally Applicable, Because the Risk to “Outbreaks” is Exactly the
Same. ...................................................................................................... 19
D. Maine’s Discriminatory Treatment of Religious Exemptions Is
Subject to and Cannot Withstand Strict Scrutiny ................................ 24
1. Maine’s favorable treatment of exemptions posing equal risks
of “outbreaks,” and Maine’s questionable risk assumptions
undermine its claim of a compelling interest. ............................ 24
ii
2. Maine Stands Virtually Alone In Its Blanket Refusal to
Extend Religious Accommodations and Its Mandate is Not the
Least Restrictive Means. ............................................................. 27
3. The Lower Courts Impermissibly Placed the Burden on
Applicants to Demonstrate that Less Restrictive Alternatives
Employed by Forty-Eight Other States Are Sufficient to
Protect Maine’s Interest. ............................................................. 29
II. APPLICANTS HAVE A CLEAR AND INDISPUTABLE RIGHT TO
RELIEF BECAUSE DEFENDANTS’ WHOLESALE REJECTION OF
RELIGIOUS ACCOMMODATIONS IS PLAINLY INCONSISTENT WITH
TITLE VII AND IS THEREFORE NULLIFIED AND SUPERSEDED BY
FEDERAL LAW. ............................................................................................... 32
A. Title VII Supersedes Maine’s Rule Because Even the Employer
Defendants Have Admitted That Title VII’s Requirement of
Religious Accommodation and Maine’s Revocation of Religious
Exemptions Are in Conflict. ................................................................... 32
B. Title VII Explicitly Preempts State Laws, Like Maine’s, That
Require the Doing of an Act That Is Prohibited by Title VII. .............. 35
III. APPLICANTS ARE SUFFERING IRREPARABLE HARM. .......................... 36
A. Applicants Are Suffering Irreparable First Amendment Injury. ......... 36
B. Injunctive Relief Is Available and Needed to Preserve The Status
Quo. ......................................................................................................... 38
IV. PLAINTIFFS SATISFY THE OTHER IPA REQUIREMENTS. .................... 39
CONCLUSION............................................................................................................. 40
iii
TABLE OF AUTHORITIES
Cases
Agudath Israel of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020) .................................. 31
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) ................................ 34
Ashcroft v. ACLU, 542 U.S. 656 (2004) .................................................................. 30,31
Bermand v. New York City Ballet, Inc., 616 F. Supp. 555 (S.D.N.Y. 1985) .............. 39
Brown v. City of Chicago, 8 F. Supp. 2d 1095 (N.D. Ill. 1998) .............................. 35,36
Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) ........................................... 31
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) .................................... 16,17
California Fed. Savings & Loan Assoc. v. Guerra, 479 U.S. 272 (1987) ................... 34
Coalition for Economic Equality v. Wilson, 122 F.3d 692 (9th Cir. 1997) ................. 35
Cunningham v. City of Shreveport, 407 F. Supp. 3d 595 (W.D. La. 2019) ........... 23,24
Dahl v. Bd. of Trustees of W. Mich. Univ., No. 21-2945,
2021 WL 4618519 (6th Cir. Oct. 7, 2021) ............................13,14,19,28,37,38,39,40
Dr. A v. Hochul, No. 1:21-CV-1009,
2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021) .....................1,13,19,23,27,33,34,37,39
EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015) ............................... 13
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) ........................ 34
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359 (3d Cir. 1999) .......................................................................... 20,21,23
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ........................................................................................... 26,30
Guardians Ass’n v. Civil Serv. Comm., 630 F.2d 79 (2d Cir. 1980) ........................... 36
Haywood v. Drown, 556 U.S. 729 (2009) .................................................................... 11
Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) ............. 11,34
iv
Holt v. Continental Grp., Inc., 708 F.2d 87 (2d Cir. 1983) ......................................... 39
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31,
138 S. Ct. 2448 (2018) ............................................................................................ 24
Klaassen v. Trs. of Ind. Univ., No. 1:21-CV-238 DRL,
2021 WL 3073926 (N.D. Ind. July 18, 2021) .................................................... 19,20
Klaassen v. Trs. of Ind. Univ., 7 F.4th 592 (7th Cir. 2021) ........................................ 20
Landmark Commc’ns, Inc. v. Maine, 435 U.S. 829 (1978) ......................................... 24
LeBlanc v. S. Bell Tel. & Tel. Co., 333 F. Supp. 602 (E.D. La. 1971) ........................ 36
Lewis v. City of Unity City, 918 F.3d 1213 (11th Cir. 2019) ...................................... 12
Litzman v. N.Y. City Police Dep’t, No. 12 Civ. 4681(HB),
2013 WL 6049066 (S.D.N.Y. Nov. 15, 2013) .......................................................... 23
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) ................. 24
McAllen Grave Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014)............... 25
McCullen v. Coakley, 573 U.S. 464 (2014) .................................................................. 31
Murphy v. NCAA, 138 S. Ct. 1461 (2018) ................................................................... 33
On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901 (W.D. Ky. 2020) .......... 25
Reed v. Town of Gilbert, 576 U.S. 155 (2015) ............................................................. 30
Republican Party of Minn. v. White, 536 U.S. 765 (2002) ......................................... 25
Rinehart v. Westinghouse Elec. Corp., No. C 70-537,
1971 WL 174 (N.D. Ohio Aug. 20, 1971) ............................................................... 36
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) ......................................................................... 3,14,15,18,19,36
Romero Feliciano v. Torres Gaztambide, 836 F.2d 1 (1st Cir. 1987) ......................... 37
Sheehan v. Purolator Courier Corp., 676 F.2d 877 (2d Cir. 1981) ........................ 38,39
Sindicator Puertorriqueno de Trabajaddores v. Fortuno,
699 F.3d 1 (1st Cir. 2012) ....................................................................................... 37
v
Singh v. McHugh, 185 F. Supp. 3d 201 (D.D.C. 2016) ............................................... 23
South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) ......... 3,18,19
Tandon v. Newsom, 141 S. Ct. 1294 (2021) .............................................. 3,18,19,27,36
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ................................. 32,33
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ................................................ 24
Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) .............................................................. 23
We The Patriots USA, Inc. v. Hochul, No. 21-2179,
dkt. 65 (2d Cir. Sept. 30, 2021) ........................................................................... 1,13
Westchester Legal Servs., Inc. v. Westchester Cnty.,
607 F. Supp. 1379 (S.D.N.Y. 1985) ........................................................................ 37
Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015) .................................................. 25
Constitutional Provisions
U.S. Const. amend I ..............................................................................................passim
U.S. Const. Art. VI, cl. 2 (Supremacy Clause) ....................................................... 10,11
Statutes
28 U.S.C. § 1651 .......................................................................................................... 1,7
28 U.S.C. § 2101 .......................................................................................................... 1,7
42 U.S.C. § 2000e ................................................................................................... 11,32
42 U.S.C. § 2000e-2 ................................................................................................. 11,35
42 U.S.C. § 2000e-7 ...................................................................................................... 35
Title VII of the Civil Rights Act of 1964
(42 U.S.C. §§ 2000e to 2000e-17) ....................................................................passim
Rules
10-144 C.M.R. Ch. 264 ................................................................................................... 9
vi
Fed. R. App. P. 8 ............................................................................................................ 6
Sup. Ct. R. 20 ................................................................................................................. 1
Sup. Ct. R. 22 ................................................................................................................. 1
Sup. Ct. R. 23 ................................................................................................................. 1
vii
INTRODUCTION
Pursuant to Sup. Ct. Rules 20, 22 and 23, and 28 U.S.C. §§ 1651 and 2101,
Applicants, JANE DOES 1–6, JOHN DOES 1–3, JACK DOES 1–1000, and JOAN
DOES 1–1000, hereby move the Court for an emergency writ of injunction in aid and
pending disposition of their forthcoming petition for writ of certiorari.
In compliance with the First Amendment, Title VII of the Civil Rights Act of
1964, and other laws, forty-seven states in our Union freely allow people of faith to
request and receive reasonable accommodations for their sincerely held beliefs
against mandatory vaccination requirements, thereby allowing countless Americans
– including healthcare workers – to live out their faith, serve their communities and
provide shelter, food and education for their families without violating their core,
sincerely held religious beliefs. A forty-eighth state, New York, recently attempted to
ban religious exemptions (but not medical exemptions) for healthcare workers
through a law that is virtually indistinguishable from the one under review here, and
that law was promptly preliminarily enjoined by the district court, Dr. A v. Hochul,
No. 1:21-CV-1009, 2021 WL 4734404, *9 (N.D.N.Y. Oct. 12, 2021), and by the Second
Circuit, We The Patriots USA, Inc. v. Hochul, No. 21-2179, dkt. 65 (2d Cir. Sept. 30,
2021), pending its legal challenge, on the grounds that the law is likely
unconstitutional and in violation of Title VII.
That leaves only two states, Rhode Island and Maine, both in the First Circuit,
that have, by legislative and executive action, written over the clear protections of
Title VII, and have banned private employers from providing even the process
required by Title VII for considering reasonable accommodations for people of faith
1
who are religiously opposed to mandatory vaccines. If this Court does not intervene
promptly, as New York’s courts have done, and if Maine’s contrivance to abolish
religious exemptions—now with the blessing of the First Circuit—is allowed to stand,
untold numbers of employees in Maine will have to decide, in a matter of days, what
is more important to them—their deeply held religious beliefs, or their ability to work
anywhere in their state so that they can feed their families. And, without this Court’s
immediate intervention, Maine’s judicially approved deprivation of religious
exemptions will serve as a model for other states, localities and employers to follow,
endangering the right of people of faith across the Nation not to be subjected to the
same impossible and unconscionable “choice.”
Maine’s deadline for private healthcare employers to purge
themselves of all employees that have sought religious exemptions is
October 29, 2021. However, Plaintiffs and other healthcare workers in Maine are
already being told this week not to report to work absent Court-ordered relief or
violation of their sincerely held religious beliefs. Accordingly, relief from this Court
cannot wait until October 29, and is needed as soon as possible.
For many years prior to the instant action and in compliance with federal law,
Defendants permitted healthcare workers in the State of Maine to apply for and
receive religious exemptions to mandatory vaccine requirements. Yet, on August 14,
2021, Maine stripped all protections for religious objectors to any vaccination
requirement in conjunction with its emergency declaration that all healthcare
workers in Maine receive a COVID-19 vaccination. (EXHIBIT 6, Verified Complaint,
2
¶ 41–49.) Defendants now threaten all Applicants with the immediate termination of
their ability to feed their families and the loss of their license so that they can never
work again within their chosen profession anywhere within the State of Maine. To
protect Applicants’ fundamental right to free exercise of their religious convictions,
relief from this Court cannot wait.
Our Nation is at a seminal crossroad whereby only this Court can provide the
necessary relief to prevent an onslaught of religious discrimination throughout the
Republic. As Justice Gorsuch stated earlier this year, “[e]ven in times of crisis—
perhaps especially in times of crises—we have a duty to hold governments
to the Constitution.” South Bay United Pentecostal Church v. Newsom, 141 S. Ct.
716, 718 (2021) (Gorsuch, J., statement) (bold emphasis added; italics original). Over
the last 20 months, churches were discriminatorily shuttered and religious
congregants were unconstitutionally told they must refrain from worship, even on the
most sacred holidays of their faith. It took several interventions from this Court to
align the States’ COVID-19 restrictions with the demands of the First Amendment.
After this Court’s decisions in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.
Ct. 63 (2020), South Bay, and Tandon v. Newsom, 141 S. Ct. 1294 (2021), people of
faith across the nation could once again enjoy the promises and protection of their
Constitution.
Now, the Court is faced with a new “variant” of open and overt religious
discrimination, namely the abolition of a previously recognized, Title VII-mandated
process for accommodating the sincerely held religious convictions that countless
3
individuals across the Nation hold. In a land born on the will to be free, “take the jab
or take a hike and never work again” has no place in our constitutional jurisprudence.
This Court should step in to protect the faithful from becoming First Amendment
orphans. Relief is needed today.
RELIEF SOUGHT
Faced with summary termination from their employment on October 29, 2021,
and with the inability to work within their profession anywhere in the entire State of
Maine, Applicants request a temporary stay of Maine’s enforcement of its rules
abolishing religious exemptions for healthcare workers, until Applicants can file a
Petition for Writ of Certiorari and this Court has the opportunity to consider it. The
limited relief sought would maintain the status quo in Maine, and would place Maine
on par with 48 of its sister States where Title VII still provides a process for
healthcare workers to request and receive accommodations for their sincerely held
religious beliefs.1 As detailed in this Application, even before it enacted its
unforgiving mandate banning religious exemption, Maine enjoyed (and continues
to enjoy) some of the most successful COVID-19 statistics in the nation. (See
page 10, infra). Maine waited many months after COVID-19 vaccination became
available to mandate it and to ban religious exemptions for its healthcare heroes.
Staying Maine’s heavy hand for a little while longer will not be detrimental to Maine,
1 This includes New York, where Title VII protections have been restored via
preliminary injunctive relief, but excludes Rhode Island, where legal challenges to
the abolition of religious exemptions are still pending, without preliminary injunctive
relief in place.
4
but will prevent countless Mainers from becoming permanently unemployed and
unemployable on the basis of their religious beliefs, to the irreparable detriment of
their families.
Applicants therefore respectfully move this Court for an injunction pending
disposition of their forthcoming Petition for Writ of Certiorari, restraining and
enjoining Defendants–Appellees, all of their officers, agents, employees, and
attorneys, and all other persons in active concert or participation with them, from
enforcing, threatening to enforce, attempting to enforce, or otherwise requiring
compliance with the Governor’s COVID-19 Vaccine Mandate such that—
i. Defendant Governor Mills will not enforce her mandate that John Doe
1 require his employees to receive a COVID-19 vaccine and refuse to
provide a religious exemption or accommodation for such employees in
violation of John Doe 1’s and his employees’ sincerely held religious
beliefs;
ii. Defendants will immediately cease in their revocation of previously
granted religious exemptions, or in their refusal to consider, review, and
grant Plaintiffs’ requests for religious exemption and accommodation
from the Governor’s COVID-19 Vaccine Mandate, provided that
Plaintiffs agree to abide by reasonable accommodation provisions such
as masking, testing, symptom monitoring, and reporting; and
5
iii. Defendants will immediately cease threatening to discharge and
terminate Plaintiffs from their employment for failure to accept a
COVID-19 vaccine that violates their sincerely held religious beliefs.
JURISDICTION AND TIMING
Plaintiffs filed this action on August 25, 2021 (Exhibit 6), and immediately
moved for preliminary injunctive relief. (EXHIBIT 7, Motion for Temporary
Restraining Order and Preliminary Injunction, “PI Motion”). Over Plaintiffs’
objections, the district court delayed a hearing until September 20, 2021. (Dkt. 44).
The court then held Plaintiffs’ motion under advisement for more than three weeks,
waiting until two days before Plaintiffs’ October 15, 2021 deadline for accepting the
last available vaccine to become fully vaccinated by the State’s October 29, 2021
deadline. On October 13, 2021, the district court denied Plaintiffs’ Motion for
Preliminary Injunction, holding that Plaintiffs were unlikely to succeed on the merits
of their challenge to the Governor’s COVID-19 Vaccine Mandate (Exhibit 5, PI Order
at 14). Plaintiffs noticed their appeal to the First Circuit on the same day, within one
hour of the PI Order.
In conjunction with Plaintiffs’ Motion for Preliminary Injunction and pursuant
to Fed. R. App. P. 8(a)(1)(C), Plaintiffs also requested from the district court
alternative relief in the form of an injunction pending appeal should the court deny
the preliminary injunction. (Exhibit 7.) The district court also denied Plaintiffs’.
Motion for Injunction Pending Appeal. (Exhibit 4.) Within one hour of the First
Circuit docketing Plaintiffs’ appeal on October 14, Applicants filed an Emergency
6
Motion for Injunction Pending Appeal with the First Circuit. The First Circuit
summarily denied that Motion on October 15. (Exhibit 3.) On the same day,
Applicants sought an emergency writ of injunction from this Court, and Justice
Breyer denied that motion on October 19, without prejudice to Applicants refiling in
the event the First Circuit denied or delayed relief. (Exhibit 2.)
On the same day as Justice Breyer’s Order (October 19), the First Circuit
issued its Opinion affirming the district court’s denial of preliminary injunctive relief.
(Exhibit 1). Applicants bring the instant Application within a day of the First Circuit
Opinion. Applicants have therefore moved diligently and with extreme urgency
throughout these proceedings. This Court has jurisdiction under 28 U.S.C. §§ 1651
and 2101.
FACTUAL BACKGROUND AND
URGENCIES JUSTIFYING EMERGENCY RELIEF
Plaintiffs-Applicants are healthcare workers in Maine who have sincerely held
religious beliefs that preclude them from accepting any of the COVID-19 vaccines
because of the vaccines’ connection to aborted fetal cell lines, and for other religious
reasons that have been articulated in detail to Defendants. (V. Compl. ¶¶ 8–26, 50–
74.) Plaintiffs’ sincere religious beliefs regarding the sanctity of every human life,
from the moment of conception, are articulated in great detail in the Verified
Complaint (¶¶ 50–75). The Verified Complaint also details the undeniable and
generally accepted fact that all three of the available COVID-19 vaccines were either
developed, researched, tested, produced or otherwise developmentally associated
with fetal cell lines that originated in elective abortions. (Id. at ¶¶ 60–68). Defendants
7
have not disputed either the vaccines’ connection to aborted fetal cells, or the sincerity
of Plaintiffs’ religious beliefs. Accordingly, although Plaintiffs’ religious beliefs and
the bases therefore are critical to their claims, Plaintiffs rely on their undisputed
sworn allegations in the Verified Complaint, and do not detail them here again.
One Plaintiff, John Doe 1, is a licensed healthcare provider in Maine, operating
his own private practice with employees who have sincerely held religious objections
to the Governor’s COVID-19 Vaccine Mandate. (Id. at ¶ 16). John Doe 1 has sincerely
held religious objections to accepting or receiving the COVID-19 vaccines, and has
sincerely held religious beliefs that he is to honor the religious beliefs of his employees
who object to the COVID-19 vaccines. (Id.)
Since COVID-19 first arrived in Maine, Plaintiffs have risen every morning,
donned their personal protective equipment, and fearlessly marched into hospitals,
doctor’s offices, emergency rooms, operating rooms, and examination rooms with one
goal: to provide quality healthcare to those suffering from COVID-19 and every other
illness or medical need that confronted them. (Id. at ¶8). They did it bravely and with
honor, and they answered the call of duty to provide healthcare to the people who
needed it the most, working tirelessly to ensure that those ravaged by the pandemic
were given appropriate care. (Id.)
On August 12, 2021, Governor Mills announced that Maine would require
health care workers to accept or receive one of the three COVID-19 vaccines in order
to remain employed in the healthcare profession (the “COVID-19 Vaccine
Mandate”). (Id. at ¶ 41). On August 14, 2021, the Maine Center for Disease Control
8
and Prevention (“MCDC”) amended 10-144 C.M.R. Ch. 264 to eliminate the ability of
health care workers in Maine to request and obtain a religious exemption and
accommodation from the COVID-19 Vaccine Mandate. (Id. at ¶ 46). Critically,
however, Maine has retained the previously available exemptions for
medical reasons. (Id. at ¶¶ 47–49).
As a result of the Governor’s and Maine’s abolishing of religious exemptions,
Plaintiffs were uniformly and summarily denied their requests for religious
exemptions and accommodations, specifically under the guise that Title VII’s
protections no longer apply in Maine. (Id. at ¶¶ 10–26). When presented with
requests from Plaintiffs for exemption and accommodation for their sincerely held
religious beliefs, Defendants have responded in the following ways:
• “I can share MaineHealth’s view that federal law does not supersede
state law in this instance.” (Id. at ¶ 87 (emphasis added).)
• “[W]e are no longer able to consider religious exemptions for
those who work in the state of Maine.” (Id. at ¶ 84.)
• “All MaineGeneral employees will have to be vaccinated against
COVID-19 by Oct. 1 unless they have a medical exemption. The mandate
also states that only medical exemptions are allowed, no religious
exemptions are allowed.” (Id. at ¶ 93 (emphasis added).)
• “Allowing for a religious exemption would be a violation of the state
mandate issued by Governor Mills. So, unfortunately, that is not an
option for us.” (Id. at ¶ 94.)
And, similarly, Plaintiff John Doe 1 is now facing the imminent revocation of
his facility license, and the shuttering of his private healthcare practice, because his
religious beliefs prohibit him from accepting a vaccine and from forcing his employees
to accept a vaccine against their religious convictions. (Id. at ¶¶ 16, 43–45).
9
Notably, as of August 2021, even before it abolished religious exemptions for
its healthcare workers, Maine had some of the best COVID-19 success statistics in
the nation, according to Governor Mills’ own statements:
Despite having the oldest median age population in
the country, Maine, adjusted for population, ranks
third lowest in total number of cases and fourth
lowest in number of deaths from COVID-19 from the
start of the pandemic, according to the U.S. CDC.
(EXHIBIT 8, Mills Administration Provides More Time for Health Care Workers to
Meet COVID-19 Vaccination Requirement, at 3 (emphasis added).)
* * *
The seminal issue before this Court can be boiled down to a simple question:
Does federal law apply in Maine? Though the question borders on the absurd, so does
Defendants’ answer to it. Defendants have explicitly claimed to healthcare workers
in Maine, including Plaintiffs, that federal law does not apply, and neither should
they. Defendants have informed Plaintiffs, who have sincerely held religious
objections to the Governor’s COVID-19 Vaccine Mandate that no protections or
considerations are given to religious beliefs in Maine. Indeed, Defendants’ answer
has been an explicit claim that federal law does not provide protections to Maine’s
healthcare workers.
The answer to the question before this Court is clear: federal law and the
United States Constitution are supreme over any Maine statute or edict, and Maine
cannot override, nullify, or violate federal law. See U.S. Const. Art. VI, cl. 2 (“This
Constitution, and the Laws of the United States which shall be made in Pursuance
10
thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”). “This Court has long made clear that federal law is as
much the law of the several States as are the laws passed by their legislatures.”
Haywood v. Drown, 556 U.S. 729, 734 (2009). Indeed, “[i]t is a familiar and well-
established principle that the Supremacy Clause . . . invalidates state laws that
interfere with, or are contrary to, federal law. Under the Supremacy Clause . . . state
law is nullified to the extent that it actually conflicts with federal law.” Hillsborough
Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 712–13 (1985) (cleaned up).
Thus, there can be no dispute that Maine is required to abide by federal law
and provide protections to employees who have sincerely held religious objections to
the COVID-19 vaccines. And, here, the federal law is clear: There can be no dispute
that Title VII of the Civil Rights Act prohibits Defendants from discriminating
against Plaintiffs on the basis of their sincerely held religious beliefs. 42 U.S.C.
§2000e-2(a) (“It shall be an unlawful employment practice for an employer . . . to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment because of such individual’s . . . religion.”). And, Defendants have a duty
under Title VII to consider and provide religious exemptions and accommodations to
those with sincerely held religious objections to the COVID-19 Vaccine Mandate. 42
U.S.C. § 2000e(j).
11
In direct contrast to this unquestionable principle of black letter law, however,
every Defendant in this suit has seen fit to claim to its healthcare workers that the
converse is true, and that Maine law is supreme over federal law; has informed
Plaintiffs that their requests for an exemption and accommodation from the mandate
cannot even be evaluated or considered; and has flatly denied all requests for religious
exemption and accommodation from the mandate that all healthcare workers receive
a COVID-19 vaccine. Employers bent on discrimination “usually don’t post help
wanted signs reading ‘blacks need not apply.’” Lewis v. City of Unity City, 918 F.3d
1213, 1261 (11th Cir. 2019) (Rosenbaum, J., concurring in part). But Maine and its
healthcare employers have no problem being direct: “religious misbelievers need
not apply.”
The dispute in this case is not about what accommodations are available to
Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections
can be conditioned on compliance with certain reasonable requirements. Plaintiffs
have already acknowledged to Defendants that they are willing to comply with
reasonable health and safety requirements that were deemed sufficient for the last
20 months. The dispute is about whether Defendants are required to even consider a
request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs.
The answer is clear: yes. And this Court should require Defendants to acknowledge
and accept that federal law mandates accommodation for Plaintiffs’ sincerely held
religious beliefs, and order that Defendants extend such protections.
12
As the Northern District of New York has just held when it enjoined New
York’s very similar, legally indistinguishable scheme that purported to abolish
religious exemptions but maintain secular, medical exemptions: “‘Title VII does not
demand mere neutrality with regard to religious practices . . . rather, it
gives them favored treatment.’ Thus, under certain circumstances, Title VII
‘requires otherwise-neutral policies to give way to the need for an
accommodation.’” Dr. A v. Hochul, No. 1:21-CV-1009, 2021 WL 4734404, *9
(N.D.N.Y. Oct. 12, 2021) (quoting EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S.
768, 775–776 (2015)) (emphasis added). Indeed, the court in Dr. A plainly held that
plaintiffs were likely to succeed on the merits of their claims because – as here – the
Governor’s mandate “has effectively foreclosed the pathway to seeking a religious
accommodation that is guaranteed under Title VII.” Id. at *6.
On September 30, 2021, the Second Circuit gave its imprimatur to the Dr. A.
TRO against State Defendants in We The Patriots USA, Inc. v. Hochul, No. 21-2179,
dkt. 65 (2d Cir. Sept. 30, 2021). There, the Second Circuit issued an injunction
pending appeal against the New York Governor’s COVID-19 Vaccine Mandate
purporting to abolish religious exemptions, and enjoined New York from enforcing its
mandate to the extent it terminated religious exemptions in the State. Id.
On October 7, 2021, the Sixth Circuit issued an order affirming a preliminary
injunction against Western Michigan University for its similar refusal to grant
religious accommodations from a mandatory COVID-19 vaccine policy. See Dahl v.
Bd. of Trustees of W. Mich. Univ., No. 21-2945, 2021 WL 4618519 (6th Cir. Oct. 7,
13
2021). In denying the university’s request for a stay, the Sixth Circuit concluded that
the student athletes’ “free exercise challenge will likely succeed on appeal.” Id. at *1.
Specifically,
the University’s failure to grant religious exemptions to
plaintiffs burdened their free exercise rights. The
University put plaintiffs to the choice: get vaccinated
or stop fully participating in intercollegiate sports. .
. . By conditioning the privilege of playing sports on
plaintiffs’ willingness to abandon their sincere
religious beliefs, the University burdened their free
exercise rights.
Id. at *3 (emphasis added).
The court continued,
But the mandate does penalize a student otherwise
qualified for intercollegiate sports by withholding the
benefit of playing on the team should she refuse to violate
her sincerely held religious beliefs. As a result, plaintiffs
have established that the University’s vaccination
policy for student-athletes burdens their free
exercise of religion.
Id. (emphasis added).
As here, the university offered medical exemptions and, theoretically, religious
exemptions to its student-athletes, but refused to provide religious accommodations.
Id. at *1. The Sixth Circuit found that such a discriminatory scheme of individualized
exemptions made the vaccine mandate not neutral or generally applicable. Id. at *4.
That alone was sufficient to mandate the application of strict scrutiny under Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020).
Earlier this year, Governor Mills rightfully declared that Maine’s healthcare
workers were “Superheroes” and requested that “all Maine people join me in thanking
14
all of our healthcare workers who have heeded the call of duty and worked long hours,
days, and weeks, often at great sacrifice to themselves and their families, to protect
Maine people during this extraordinary crisis.” Office of Governor Janet T. Mills,
Governor Mills Announces Four Maine Healthcare Superheroes to Attend Super Bowl
LV Thanks to Generosity of New England Patriots’ Kraft Family (Feb. 2, 2021),
https://www.maine.gov/governor/mills/news/governor-mills-announces-four-maine-
healthcare-superheroes-attend-super-bowl-lv-thanks. Yet, on August 12, 2021, those
same superheroes were cast as evil villains for requesting exemption and
accommodation from the Governor’s edict for their sincerely held religious beliefs.
All Plaintiffs seek in this lawsuit is to be able to continue to provide the
healthcare they have provided to patients for their entire careers, and to do so under
the same protective measures that have sufficed for them to be considered
superheroes for the last 18 months, or even increased, reasonable protective
measures. Regardless of whether Maine sees fit to extend protections to religious
objectors under its own statutory framework, federal law demands that Plaintiffs and
all employees in Maine receive protections for their sincerely held religious beliefs.
This Court should hold Maine to the bargain it made with its citizens when it
joined the Union and ensure that Maine respects the required protections that federal
law demands. As this Court has recently held, “even in a pandemic, the
Constitution cannot be put away and forgotten.” Roman Catholic Diocese, 141
S. Ct. at 68 (emphasis added). When we have demanded so much of our healthcare
heroes, we owe them nothing less than the full measure of our own commitment to
15
constitutional principles. Anything less would be desecrating the sacrifice these
medical heroes made for untold numbers of people—including Defendants—when the
call of duty demanded it of them.
LEGAL ARGUMENT
I. APPLICANTS HAVE A CLEAR AND INDISPUTABLE RIGHT TO
RELIEF BECAUSE DEFENDANTS’ INTENTIONAL REMOVAL OF
RELIGIOUS EXEMPTIONS FROM THE VACCINE MANDATE WHILE
ALLOWING MEDICAL EXEMPTIONS VIOLATES THE FIRST
AMENDMENT.
A. Maine’s Mandate on John Doe 1’s Private Practice Violates the
First Amendment.
As already noted, one Plaintiff, John Doe 1, is a licensed healthcare provider
in Maine, operating his own private practice with employees who have sincerely held
religious objections to the Governor’s COVID-19 Vaccine Mandate. (Supra, page 8).
John Doe 1 has sincerely held religious objections to accepting or receiving the
COVID-19 vaccines, and has sincerely held religious beliefs that he is to honor the
religious beliefs of his employees who object to the COVID-19 vaccines. (Id.)
The Governor’s mandate and threat of revocation of John Doe 1’s ability to
operate his facility for failure to comply is almost identical to the mandate struck
down by this 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 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
16
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 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 John Doe
1’s religious beliefs. In fact, John Doe 1 must either mandate that his employees
receive an abortion-connected vaccine they find objectionable under their sincerely
held religious beliefs, or deprive his employees of their abilities to feed their families.
Such an unconscionable choice is clearly a substantial burden. 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 plaintiffs. 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, as
shown infra, the Governor’s COVID-19 Vaccine Mandate is not neutral or generally
applicable, and provides for individualized medical exemptions but not religious
exemptions, the mandate is subject to strict scrutiny, and Defendants utterly fail to
carry their burden under that standard.
17
B. Maine’s Singling Out of Religious Employees Who Decline
Vaccination for Especially Harsh Treatment Is Not Religiously
Neutral.
“[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, 141 S. Ct. at 66. “When a state so obviously targets religion for
differential treatment, our job becomes much clearer.” South Bay, 141 S. Ct. at 717
(Gorsuch, J.).
The First Circuit’s decision below runs roughshod over this precedent and
ignores that the pertinent analysis is whether two activities carry the same risk,
not what the underlying intentions are for treating religion and nonreligion alike.
(Exhibit 1, at 19.) As this Court said in Tandon, under the First Amendment,
“comparability is concerned with risks various activities pose not the reasons
for which they are undertaken.” 141 S. Ct. at 1297 (emphasis added). The First
Circuit flips this test on its head and concludes that the underlying justification for
the alleged dichotomous treatment is what matters. (Exhibit 1, at 19.)
Here, Maine has plainly singled out religious employees who decline
vaccination for religious reasons for especially harsh treatment (i.e., depriving them
from earning a living anywhere in the State), while favoring and accommodating
employees declining vaccination for secular, medical reasons. Under the Tandon,
18
South Bay, and Roman Catholic Diocese triumvirate, Maine’s discriminatory
treatment of unvaccinated religious employees violates the First Amendment.
Under the prior version of Maine’s immunization exemption requirements,
Maine allowed for (a) medical exemptions, and (b) exemptions for any employee who
“states in writing an opposition to immunization because of a sincerely held religious
belief.” (V. Compl. ¶ 48.) On August 14, 2021, however, Maine removed only the
religious exemption from the rule. (V. Compl. ¶ 46.) Indeed, as the district court
in New York has just held when it enjoined New York’s nearly identical medical-but-
not-religious exemption scheme, where – as here – the government has removed a
previously available religious exemption, that “intentional change in language is the
kind of ‘religious gerrymander’ that triggers heightened scrutiny.” Dr. A v. Hochul,
2021 WL 4734404, at *8.
C. The Vaccine Mandate’s More Favorable Treatment of Employees
Declining Vaccination for Secular, Medical Reasons as
Compared to Employees Declining Vaccination for Religious
Reasons Is Not Generally Applicable, Because the Risk to
“Outbreaks” is Exactly the Same.
Maine’s continuing recognition of only medical exemptions also removes the
Vaccine Mandate from neutrality and general applicability. As Dr. A held last week,
where the government permits medical exemptions from the mandate, but excludes
religious exemptions, the law is not neutral. 2021 WL 4734404, at *8. See also Dahl,
2021 WL 4618519, at *3 (“The University’s vaccine mandate likewise provides a
mechanism for individualized exemptions. . . . As a result, the University must prove
that its decision not to grant religious exemptions to plaintiffs survives strict
scrutiny.”). Cf. Klaassen v. Trs. of Ind. Univ., No. 1:21-CV-238 DRL, 2021 WL
19
3073926, at *5 (N.D. Ind. July 18, 2021), aff’d 7 F.4th 592 (7th Cir. 2021) (holding
that a university’s vaccine mandate was neutral and generally applicable where it
provided a mechanism for students to request and receive religious exemptions to the
vaccine mandate).
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) (emphasis added). There, like
Maine 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. (emphasis added)
(cleaned up). Thus, the court 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. (emphasis added).
20
Here, the district court and the First Circuit found that the availability of
medical exemptions, while religious exemptions were specifically targeted and
excluded, does not violate the First Amendment because the two are not comparable.
(PI Order at 19; First Circuit Op. at 20.) Justice Alito squarely rejected that
contention:
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 (emphasis added) (cleaned up). The same
is true here. Maine maintained a policy that permitted religious exemptions and
medical exemptions to mandatory vaccinations. (V. Compl. ¶ 48.) Then, Maine
specifically removed religious exemptions while maintaining medical exemptions. (V.
Compl. ¶¶ 46–47.) And, that discriminatory removal of a religious exemption while
maintaining a medical exemption violates the First Amendment. 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
discriminatory intent so as to trigger heightened scrutiny under Smith and
Lukumi.”).
21
Here, Maine claims secular, medical reasons for declining vaccination are
important enough to overcome its purported interest but that religious reasons for
declining vaccination are not. And the district court and First Circuit have concluded
that such a value judgment was perfectly permissible under the First Amendment,
because it was motivated by the laudable goal of promoting public health. But the
asserted goal of the Government here is to stop “outbreaks” and the spread
of COVID-19 at healthcare facilities. (See dkt. 49-4, Declaration of Nirav Shah,
¶ 53 (“Maine CDC determined that requiring vaccinations for healthcare workers in
certain high-risk settings was necessary to protect public health, healthcare workers
and Maine’s health care system from the further spread of COVID-19.”).) Since the
COVID-19 virus does not know whether a healthcare worker has declined vaccination
based on medical or religious grounds, to the extent unvaccinated workers pose any
increased risk of viral spread and “outbreaks,” that risk is equal (indeed, exactly
the same) whether they are unvaccinated because of medical or religious reasons.
Therefore, the risks to the spread of COVID-19 and “outbreaks” at healthcare
facilities posed by unvaccinated healthcare workers who decline vaccination because
of medical reasons is not merely comparable, but actually identical, to the risks
posed by unvaccinated healthcare workers who decline vaccination because of
religious reasons. And the Government has made a value judgment that one risk (the
secular) is acceptable and can be mitigated, while the other risk (the religious) is
unacceptable and cannot be mitigated.
Such a value judgment does not legitimize a discriminatory policy:
22
[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.
Fraternal Order of Police, 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 (emphasis added).
The Northern District of New York’s decision in Dr. A, and Justice Alito’s
opinion for the court in Fraternal Order of Police hardly represent a novel proposition.
As the Sixth Circuit explained, “a double standard is not a neutral standard.” Ward
v. Polite, 667 F.3d 727, 740 (6th Cir. 2012). As many courts have recognized, allowing
medical exemptions while prohibiting religious exemptions is unconstitutional. See,
e.g., Litzman v. N.Y. City Police Dep’t, No. 12 Civ. 4681(HB), 2013 WL 6049066, at *3
(S.D.N.Y. Nov. 15, 2013) (holding that a policy that permits medical exemptions but
not religious exemptions is neither neutral nor generally applicable and must be
subject to strict scrutiny); Singh v. McHugh, 185 F. Supp. 3d 201, 225 (D.D.C. 2016)
(“In sum, it is difficult to see how accommodating plaintiff's religious exercise would
do greater damage to the Army’s compelling interests in uniformity, discipline,
credibility, unit cohesion, and training than the tens of thousands of medical shaving
profiles the Army has already granted.”); Cunningham v. City of Shreveport, 407 F.
Supp. 3d 595, 607 (W.D. La. 2019) (allowing medical exemptions while precluding
23
religious exemptions removes law from neutrality and general applicability). Maine’s
discriminatory retention of medical exemptions while excluding religious exemptions
must be subjected to, and cannot withstand, strict scrutiny. Put simply, “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 at 615 (6th Cir. 2020).
D. Maine’s Discriminatory Treatment of Religious Exemptions Is
Subject to and Cannot Withstand Strict Scrutiny
1. Maine’s favorable treatment of exemptions posing equal
risks of “outbreaks,” and Maine’s questionable risk
assumptions undermine its claim of a compelling interest.
Where, as here, First Amendment rights are at issue, “the government must
shoulder a correspondingly heavier burden and is entitled to considerably less
deference in its assessment that a predicted harm justifies a particular impingement
on First Amendment rights.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps.,
Council 31, 138 S. Ct. 2448, 2472 (2018). Here, because Maine’s Vaccine Mandate and
its exclusion of religious exemptions implicate Plaintiffs’ First Amendment rights,
Maine “must do more than simply posit the existence of the disease sought to be
cured. It must demonstrate that the recited harms are real, not merely conjectural.”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994); see also Edenfield v. Fane,
507 U.S. 761, 770 (1993). This is so because “[d]eference to [the government] cannot
limit judicial inquiry when First Amendment rights are at stake.” Landmark
Commc’ns, Inc. v. Maine, 435 U.S. 829, 843 (1978).
24
To be sure, efforts to contain the spread of a deadly disease are “compelling
interests of the highest order.” On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp.
3d 901, 910 (W.D. Ky. 2020). But Maine’s permitting unvaccinated employees with
medical exemptions to continue in their same healthcare positions while claiming
unvaccinated employees with religious exemptions would put the entire healthcare
system at risk of “outbreaks” undermines any claim that Maine’s interest is
compelling. If any unvaccinated employees pose a risk to Maine’s healthcare
system because they are unvaccinated, then all unvaccinated employees
pose the same risk. Put simply, Maine’s Vaccine Mandate “cannot be regarded as
protecting an interest of the highest order . . . when it leaves appreciable damage
to that supposedly vital interest unprohibited.” Republican Party of Minn. v.
White, 536 U.S. 765, 780 (2002) (emphasis added) (cleaned up). Where, as here (V.
Compl. ¶¶ 46–49), the government permits exceptions, this Court has recognized that
such exceptions “can raise doubts about whether the government is in fact pursuing
the interest it invokes, rather than disfavoring a particular speaker.” Williams-Yulee
v. Florida Bar, 575 U.S. 433, 448 (2015) (cleaned up). Indeed, “[w]here a regulation
already provides an exception from the law for a particular group, the government
will have a higher burden in showing that the law . . . furthers a compelling interest.”
McAllen Grave Brethren Church v. Salazar, 764 F.3d 465, 472 (5th Cir. 2014).
Maine also asserts that vaccines are the only way to prevent the spread of
COVID-19 and “outbreaks” at healthcare facilities, because unvaccinated individuals
25
are at greater risk of infection and transmission. (Dkt. 49-4, Shah Decl., ¶ 23.) But,
as demonstrated in the Verified Complaint,
A preliminary study has shown that in the case of a
breakthrough infection, the Delta variant is able to grow in
the noses of vaccinated people to the same degree as if
they were not vaccinated at all. The virus that grows is
just as infectious as that in unvaccinated people, meaning
vaccinated people can transmit the virus and infect others.
(V. Compl. ¶ 79 (quoting Sanjay Mishra, Evidence mounts that people with
breakthrough infections can spread Delta easily, National Geographic (Aug. 20, 2021),
https://www.nationalgeographic.com/science/article/evidence-mounts-that-people-
with-breakthrough-infections-can-spread-delta-easily (emphasis added)).) See also
Statement from CDC Director Rochelle P. Walensky, MD, MPH on Today’s MMWR,
https://www.cdc.gov/media/releases/2021/s0730-mmwr-covid-19.html (noting that
“the Delta infection resulted in similarly high SARS-CoV-2 viral loads in
vaccinated and unvaccinated people” (emphasis added)). Thus, Maine’s
assumptions of the relative risks of transmission by vaccinated and unvaccinated
employees are scientifically questionable, further undermining Maine’s claimed
compelling interest in mandating vaccination. And, critically, it is the
Government’s (not Plaintiffs’) burden to demonstrate the compelling interest.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006)
(““the burdens at the preliminary injunction stage track the burdens at trial.”). Maine
has not met that burden here.
26
2. Maine Stands Virtually Alone In Its Blanket Refusal to
Extend Religious Accommodations and Its Mandate is Not
the Least Restrictive Means.
Even assuming arguendo that imposing a mandatory COVID-19 vaccination
requirement on healthcare workers in Maine, and excluding religious but not secular
exemptions is supported by a compelling interest, the Vaccine Mandate still fails
strict scrutiny because it is not the least restrictive means of achieving that interest.
As this Court held 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 (emphasis added). Now that New York’s unconstitutional
exemption regime has been judicially enjoined, 48 other states have demonstrated
that preventing the spread of COVID-19 and encouraging vaccination of healthcare
workers can still be achieved while protecting the sincerely held religious beliefs of
conscientious objectors. These states have found a way to accommodate religion under
the same alternative protective measures Plaintiffs request here. Maine stands
virtually alone in its refusal to recognize this truth.
In Dr. A, the court held that Defendants’ failure to explain “why they chose to
depart from similar healthcare vaccination mandate issued in other jurisdictions that
include the kind of religious exemption that was originally included” demonstrates a
lack of narrow tailoring. 2021 WL 4734404, at *9.
27
In Dahl, as is true here, the court found that the university failed strict
scrutiny under the narrow tailoring prong:
the University falters on the narrow tailoring prong. For
one, public health measures are not narrowly tailored if
they allow similar conduct that creates a more serious
health risk. That is the case at the University, which allows
non-athletes—the vast majority of its students—to remain
unvaccinated. One need not be a public health expert to
recognize that the likelihood that a student-athlete
contracts COVID-19 from an unvaccinated non-athlete
with whom she lives, studies, works, exercises, socializes,
or dines may well meet or exceed that of the athlete
contracting the virus from a plaintiff who obtains a
religious exemption to participate in team activities. For
another, narrow tailoring is unlikely if the University's
conduct is “more severe” than that of other institutions. To
that point, several other universities grant
exemptions from their COVID-19 mandates.
2021 WL 4618519, at *5 (emphasis added) (cleaned up).
In fact, despite Maine’s contentions that there are no alternatives to a vaccine
mandate that prohibits religious exemptions, healthcare providers in Maine (and
across the country) are regularly and freely providing religious accommodations to
healthcare workers. An employee of the Department of Veterans Affairs at the VA
Maine Healthcare System in Augusta was merely required to check a box requesting
a religious exemption, and received that exemption and accommodation. (Dkt. 57-2
¶¶ 5, 10.).
Another VA employee was likewise given an accommodation in Maine. (Dkt.
57-2, ¶¶ 2–6.) That employee’s experience highlights the dichotomous treatment of
healthcare workers in Maine. Her VA exemption allowed her to “continue all of [her]
previous duties and responsibilities, including working on-site, interacting with
28
colleagues, and providing quality and safe care to [her] patients,” and her
accommodation only requires that she wear a mask and submit to testing twice
weekly. (Id. ¶ 10.) This same employee, however, was also a per diem employee at
Eastport Memorial Nursing Home in Maine, where she requested a religious
accommodation similar to her VA accommodation but was informed that such
accommodations were not available under Maine law, and her employment was
discriminatorily terminated. (Id. ¶ 11.)
Indeed, the availability and workability of accommodations for healthcare
workers with sincerely held religious objections to COVID-19 vaccination is evident
not only in Maine, but from sea to shining sea, at large employers and small. (Dkts.
57-3 to 57-33 (32 employee declarations demonstrating accommodations granted
to healthcare employees in Maine, Oregon, California, Washington, New Mexico,
Missouri, Texas, Wisconsin, Minnesota, Illinois, Colorado, Michigan, Ohio,
Pennsylvania, Delaware, Maryland, and Florida).) Maine has never provided a
reasonable explanation as to why it cannot do what 48 other states are successfully
doing. As such, Maine badly flunks its strict scrutiny burden of demonstrating narrow
tailoring.
3. The Lower Courts Impermissibly Placed the Burden on
Applicants to Demonstrate that Less Restrictive
Alternatives Employed by Forty-Eight Other States Are
Sufficient to Protect Maine’s Interest.
Maine’s contention that it simply cannot provide any reasonable
accommodation to the sincerely held religious beliefs of its healthcare workers
because Maine’s healthcare workforce is “smaller” than those of other jurisdictions
29
lacks any reason or factual proof, and yet was accepted by the courts below. How
much smaller is Maine’s healthcare force from Vermont’s or New Hampshire’s, both
of which allow religious exemptions? Maine never explained or provided any proof to
show that its situation is singularly unique and justifies is lonesome, draconian
approach.
The district court improperly placed the burden on Plaintiffs to demonstrate
that alternatives are available and sufficient to protect Maine’s asserted interest,
rather than requiring Maine to demonstrate that other alternatives that work
everywhere else are not sufficient in Maine. (PI Order at 34 (“the Plaintiffs have not
provided any scientific or expert evidence demonstrating the efficacy of the
approaches adopted in other states.”) The First Circuit, too, impermissibly ignored
the burden placed on the Government by accepting – without anything more than the
Government’s ipse dixit that other alternatives are not sufficient. (Exhibit 1 at 24–
25.)
But, the lower courts’ analysis fails to recognize the fundamental principle that
strict scrutiny “requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town
of Gilbert, 576 U.S. 155, 171 (2015) (emphasis added). And it is the Governor’s burden
to make this showing even at this stage of litigation, because “the burdens at the
preliminary injunction stage track the burdens at trial.” Gonzales, 546 U.S. at 429.
“As the Government bears the burden of proof on the ultimate question of . . .
constitutionality, [Plaintiffs] must be deemed likely to prevail unless the
30
Government has shown that [their] proposed less restrictive alternatives are less
effective than [the mandate].” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (emphasis
added).
And, this point is critical because 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, 573 U.S. 464, 494 (2014) (emphasis added).
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 chosen route was easier.’” Agudath Israel,
983 F.3d at 633 (quoting McCullen, 134 S. Ct. at 495).
Not only has Maine failed to factually support its “small workforce”
justification, but Maine has brought forth no record facts to even suggest, let alone
prove, that the COVID-19 situation in Maine is so much worse than the rest of the
country, to justify its lonesome, draconian approach. In fact, the Governor has
admitted quite the opposite, when she recently noted that “[d]espite having the
oldest median age population in the country, Maine, adjusted for
population, ranks third lowest in total number of cases and fourth lowest in
31
number of deaths from COVID-19 from the start of the pandemic, according
to the U.S. CDC.” (Supra page 10).
At bottom, Maine has merely said that other approaches that work in 48 other
states would not work in Maine, but, “[g]iven the vital First Amendment interests at
stake, it is not enough for [Maine] simply to say that other approaches have
not worked.” McCullen, 573 U.S. at 496 (emphasis added).
II. APPLICANTS HAVE A CLEAR AND INDISPUTABLE RIGHT TO
RELIEF BECAUSE DEFENDANTS’ WHOLESALE REJECTION OF
RELIGIOUS ACCOMMODATIONS IS PLAINLY INCONSISTENT
WITH TITLE VII AND IS THEREFORE NULLIFIED AND
SUPERSEDED BY FEDERAL LAW.
A. Title VII Supersedes Maine’s Rule Because Even the Employer
Defendants Have Admitted That Title VII’s Requirement of
Religious Accommodation and Maine’s Revocation of Religious
Exemptions Are in Conflict.
Employer Defendants’ primary contention concerning their utter refusal to
comply with the demands of Title VII is that Maine’s revocation of religious
exemptions from the COVID-19 Vaccine Mandate are not inconsistent with Title VII,
and thus they need not comply. (V. Compl. ¶1.) Employer Defendants are wrong. Title
VII plainly requires that every employer with over 15 employees (which includes all
Employer Defendants (V. Compl. ¶ 171)) must provide religious
accommodations “unless an employer demonstrates that he is unable to reasonably
accommodate an employee’s or prospective employee’s religious observance or
practice without undue hardship.” 42 U.S.C. § 2000e(j). See also Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977) (“the employer’s statutory obligation
to make reasonable accommodation for the religious observance of its employees,
32
short of incurring an undue hardship, is clear” (emphasis added)). Despite that
mandate of federal law, Maine has issued a wholesale revocation of religious
exemptions and accommodations for healthcare workers and has abolished the entire
exemption and accommodation process under Title VII for religious objectors. (V.
Compl. ¶ 46 (noting that Maine “eliminate[d] the ability of health care workers in
Maine to request and obtain a religious exemption and accommodation from the
COVID-19 Vaccine Mandate”).)
Thus, Title VII’s requirement that employers provide at least a process for
seeking an accommodation for an employee’s sincerely held religious beliefs, and
Maine’s refusal to provide such a process, are in direct conflict. Under such a scheme,
the Supremacy Clause demands that Defendants comply with Title VII. Where—as
here—federal law “imposes restrictions [and] confers rights on private actors,” and
Maine law “imposes restrictions that conflict with the federal law,” “the federal law
takes precedence and the state law is preempted.” Murphy v. NCAA, 138 S. Ct.
1461, 1480 (2018) (emphasis added). And, Dr. A held that refusing to given plaintiffs
a process in which to seek accommodation for their sincerely held religious beliefs is
plainly a Title VII violation. 2021 WL 4734404, at *6 (“What matters is that plaintiffs’
current showing establishes that §2.61 has effectively foreclosed the pathway to
seeking a religious accommodation that is guaranteed by Title VII.”).
Employer Defendants take great pains to suggest that Maine’s refusal to
extend religious protections is not preempted by Title VII’s demand that employers
provide a reasonable accommodation for religious beliefs. This is incorrect. Title VII
33
supersedes state laws where—as here—“compliance with both federal and state
regulations is a physical impossibility.” California Fed. Savings & Loan Assoc. v.
Guerra, 479 U.S. 272, 281 (1987) (citing Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142–43 (1963)).
Employer Defendants have made it clear that they could not comply with Title
VII because it would violate state law. (See, e.g., V. Compl. ¶ 86 (“I can share
MaineHealth’s view that federal law does not supersede state law in this instance. . .
Requiring MaineHealth to violate state law by granting unrecognized exemptions
would impose such a hardship. As such, we are not able to grant a request for a
religious exemption from the state mandated vaccine.”).) Employer Defendants’
admission is fatal. “[T]he Supremacy Clause . . . invalidates state laws that
interfere with, or are contrary to, federal law. Under the Supremacy Clause
. . . state law is nullified to the extent that it actually conflicts with federal
law.” Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 712–13 (1985)
(emphasis added) (cleaned up). Indeed, “[this] Court has long recognized that, ‘if an
individual claims federal law immunizes him from state regulation, the court may
issue an injunction upon finding the state regulatory actions preempted.’” Dr. A, 2021
WL 4734404, at *5 (quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320,
326 (2015)).
34
B. Title VII Explicitly Preempts State Laws, Like Maine’s, That
Require the Doing of an Act That Is Prohibited by Title VII.
Under the plain language of Title VII, Maine’s refusal to recognize and
accommodate Plaintiffs’ sincerely held religious beliefs is preempted and overridden
by Title VII. Indeed,
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.
42 U.S.C. § 2000e-7 (emphasis added). Thus, because Maine’s rule revoking religious
exemptions and accommodations “purports to require” discrimination on the basis of
religion, and purports to abolish the exemption and accommodation procedure
explicitly provided in Title VII, each of which are “an unlawful employment practice”
under Title VII, see 42 U.S.C. §2000e-2(a), Maine’s rules are superseded and
preempted by Title VII.
In addition to the explicit textual preemption of Title VII, abundant precedent
demonstrates that Maine cannot require employers to engage in a practice that is
unlawful under Title VII. See, e.g., Coalition for Economic Equality v. Wilson, 122
F.3d 692, 710 (9th Cir. 1997) (noting that Title VII preempts state laws that “purport
to require the doing of any act which would be an unlawful employment practice
under Title VII”); Brown v. City of Chicago, 8 F. Supp. 2d 1095, 1112 (N.D. Ill. 1998)
(noting that Congress “‘intended to supercede [sic] all provisions of State law which
require or permit the performance of an act which can be determined to constitute an
35
unlawful employment practice under the terms of Title VII of the Act or are
inconsistent with any of its purposes’” (quoting Rinehart v. Westinghouse Elec. Corp.,
No. C 70-537, 1971 WL 174, at *2 (N.D. Ohio Aug. 20, 1971)); LeBlanc v. S. Bell Tel.
& Tel. Co., 333 F. Supp. 602, 608 (E.D. La. 1971) (noting that Louisiana’s employment
law provisions that conflict with Title VII “are invalid under the Supremacy Clause”).
Moreover, Employer Defendants are not permitted to rely upon Maine’s
revocation of protections for religious objectors as a defense to refusing to do what
Title VII requires. See, e.g., Guardians Ass’n v. Civil Serv. Comm., 630 F.2d 79, 104–
105 (2d Cir. 1980) (“Nor can the City justify the use of rank-ordering by reliance on
what it contends are requirements of state law. Title VII explicitly relieves employers
from any duty to observe a state hiring provision “which purports to require or
permit” any discriminatory employment practice.” (citation omitted))
III. APPLICANTS ARE SUFFERING IRREPARABLE HARM.
A. Applicants Are Suffering Irreparable First Amendment Injury.
While it is generally true that a loss of employment does not constitute
irreparable harm, that ignores the seminal First Amendment questions before
the Court. And there can be no dispute that State Defendants’ substantial burden
on Plaintiffs’ religious exercise constitutes irreparable harm as a matter of law. As
this Court has held time and again, Plaintiffs “are irreparably harmed by the loss of
free exercise rights for even minimal periods of time.” Tandon, 141 S. Ct. at 1297.
Indeed, “[t]here can be no question that the challenged [mandate], if
enforced, will cause irreparable harm.” Roman Catholic Diocese, 141 S. Ct. at 67
(emphasis added). Plaintiffs’ constitutional injuries in the instant matter are
36
presumed irreparable harm. See, e.g., Sindicator Puertorriqueno de Trabajaddores v.
Fortuno, 699 F.3d 1, 11 (1st Cir. 2012) (“irreparable injury is presumed” in First
Amendment cases). Put simply, “a violation of plaintiffs’ constitutional right, and in
particular, a violation of First Amendment rights, constitutes irreparable harm, per
se.” Westchester Legal Servs., Inc. v. Westchester Cnty., 607 F. Supp. 1379, 1385
(S.D.N.Y. 1985).
Defendants’ collective false reduction, that Plaintiffs face only the loss of a job
rather than the unconscionable loss of First Amendment rights at the hand of State
Defendants, must be rejected. The impact of Maine’s far-reaching mandate cannot be
understated. Plaintiffs cannot simply go from one employer who unlawfully
discriminates, and get a job at a different employer to feed their families while their
legal claims are pending. Maine has essentially ensured the Plaintiffs cannot work
anywhere in the entire State. If that’s not irreparable harm, the word has no
meaning. Indeed, “[t]he harm [Plaintiffs] would suffer is not only, as
[Defendants] argue[], the loss of [their] job[s] per se, but also the penalty for
exercising [their First Amendment] rights. The chilling effect of that
penalty cannot be adequately redressed after the fact.” Romero Feliciano v.
Torres Gaztambide, 836 F.2d 1, 4 (1st Cir. 1987) (emphasis added).
Indeed, where the Governor’s mandate “conflicts with plaintiffs’ and other
individuals’ federally protected right to seek a religious accommodation from their
individual employers,” injunctive relief is appropriate. Dr. A, 2021 WL 4734404, at
*10. As the Sixth Circuit held, “[e]nforcement of the [government’s COVID-19 vaccine
37
mandate] would deprive plaintiffs of their First Amendment rights, an irreparable
injury.” Dahl, 2021 WL 4618519, at *6.
B. Injunctive Relief Is Available and Needed to Preserve The
Status Quo.
Even in the Title VII context, injunctive relief is available to preserve the
status quo. See Sheehan v. Purolator Courier Corp., 676 F.2d 877, 884 (2d Cir. 1981).
Specifically, the Second Circuit held that “if the court eventually will have jurisdiction
of the substantive claim and an administrative tribunal has preliminary jurisdiction,
the court has incidental equity jurisdiction to grant temporary relief to
preserve the status quo pending ripening of the claim for judicial action on
the merits.” Id. (emphasis added). It continued, “within the framework of Title VII,
we are persuaded that Congress intended the federal courts to have resort to all of
their traditional equity powers, direct and incidental, in aid of the enforcement of the
Title.” Id. at 885. Indeed,
It is noteworthy that the court is the only arbiter of the
merits of a discrimination claim, and we think it plain
that for the court to renounce its incidental equity
jurisdiction to stay such employer retaliation
pending the EEOC's consideration would frustrate
Congress’s purposes. Unimpeded retaliation during the
now-lengthy (180-day) conciliation period is likely to
diminish the EEOC’s ability to achieve conciliation. It is
likely to have a chilling effect on the complainant’s fellow
employees who might otherwise desire to assert their equal
rights, or to protest the employer’s discriminatory acts, or
to cooperate with the investigation of a discrimination
charge. And in many cases the effect on the
complainant of several months without work or
working in humiliating or otherwise intolerable
circumstances will constitute harm that cannot
adequately be remedied by a later award of
damages. Given the singular role in 1964 of the individual
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private action as the only method of enforcing Title VII,
and the continued view in 1972 of that right of action as
“paramount,” we cannot conclude that Congress
intended to preclude the courts' use of their
incidental equity power in these circumstances to
prevent frustration of Congress’s goals.
Id. at 885–86 (emphasis added).
Put simply, “where a person has filed a Title VII charge with the EEOC,
the court has jurisdiction to entertain a motion for temporary injunctive
relief against employer retaliation while the charge is pending before the
EEOC and before the EEOC has issued a right to sue letter.” Id. at 887
(emphasis added). See also Holt v. Continental Grp., Inc., 708 F.2d 87, 89–90 (2d Cir.
1983) (same); Bermand v. New York City Ballet, Inc., 616 F. Supp. 555, 556 (S.D.N.Y.
1985) (“Decisions by our Court of Appeals, however, firmly establish . . . this Court
has jurisdiction to entertain applications for preliminary injunctive relief for the
purpose of preserving the status quo pending EEOC’s investigative and conciliatory
process.” (emphasis added)). Plaintiffs awarded immediate injunctive relief to remedy
their present and ongoing loss of First Amendment rights.
IV. PLAINTIFFS SATISFY THE OTHER IPA REQUIREMENTS.
As Dr. A recognized when it enjoined New York’s similar scheme, “the public
interest lies with enforcing the guarantees enshrined in the Constitution and federal
anti-discrimination laws.” Dr. A, 2021 WL 4734404, at *10. Indeed, “[p]roper
application of the Constitution . . . serves the public interest [because] it is
always in the public interest to prevent a violation of a party’s
constitutional rights.” Dahl, 2021 WL 4618519, at *6 (emphasis added).
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Additionally, “the balance of the hardships clearly favors plaintiffs.” Id.
(emphasis added). Indeed, as there, “defendants have not shown that granting the
same benefit to religious practitioners that was originally included in the August 18
Order would impose any more harm—especially when Plaintiffs have been on the
front lines of stopping COVID for the past 18 months while donning PPE and
exercising other proper protocols in effectively slowing the spread of the disease.” Id.
Maintaining the status quo, and keeping Maine on par with its forty-eight sister
states will impose no hardships on Maine. The writ of injunction should issue today.
CONCLUSION
Because the Governor’s COVID-19 Vaccine Mandate completely removes any
protections for Plaintiffs’ sincerely held religious beliefs and subjects them to
especially harsh treatment, it violates the First Amendment and should be
immediately enjoined to avoid irreparable harm, pending the disposition of Plaintiffs’
forthcoming petition for writ of certiorari.
Respectfully submitted: /s Roger K. Gannam
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, Florida 32854
(407) 875-1776
court@LC.org | hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
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