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No. 21A90
In the Supreme Court of the United States
JOHN DOES, 1-3; JACK DOES, 1-1000; JANE DOES, 1-6; 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 De-
partment of Health and Human Services; NIRAV D. SHAH, in his official capacity
as Director of the Maine Center for Disease Control and Prevention; MAINE-
HEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS HEALTHCARE,
LLC; NORTHERN LIGHT HEALTHFOUNDATION; MAINEGENERAL HEALTH,
Respondents.
To the Honorable Stephen G. Breyer, Associate Justice of the United
States Supreme Court and Circuit Justice for the First Circuit
MOTION BY THE BECKET FUND FOR RELIGIOUS LIBERTY, WITH AT-
TACHED PROPOSED AMICUS CURIAE BRIEF IN SUPPORT OF APPLI-
CANTS AND IN SUPPORT OF EMERGENCY APPLICATION FOR WRIT
OF INJUNCTION, FOR LEAVE (1) TO FILE THE BRIEF, (2) TO DO SO IN
AN UNBOUND FORMAT ON 8 ½ BY 11-INCH PAPER, AND (3) TO DO SO
WITHOUT TEN DAYS’ ADVANCE NOTICE TO THE PARTIES
MARK RIENZI
Counsel of Record
DANIEL BLOMBERG
ADÈLE KEIM
KAYLA TONEY
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
mrienzi@becketlaw.org
Counsel for Amicus Curiae
The Becket Fund for Religious Liberty respectfully moves for leave to file a brief
amicus curiae in support of Applicants’ Emergency Application For Writ of Injunc-
tion, without 10 days’ advance notice to the parties of Amicus’s intent to file as ordi-
narily required.
In light of the expedited briefing schedule set by the Court, it was not feasible to
give 10 days’ notice, but Amicus was nevertheless able to obtain a position on the
motion from the parties. Applicants and State Respondents consent to the filing of
the amicus brief. Private Respondents take no position on the filing of this brief.
The Becket Fund for Religious Liberty is a non-profit, nonpartisan law firm dedi-
cated to protecting the free expression of all religious traditions. Becket has repre-
sented agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Santeros, Sikhs,
and Zoroastrians, among others, nationwide. Becket has also represented numerous
prevailing religious parties in this Court. See, e.g., Hosanna-Tabor Evangelical Lu-
theran Church & Sch. v. EEOC, 565 U.S. 171 (2012); Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682 (2014); Holt v. Hobbs, 574 U.S. 352 (2015); Zubik v. Burwell, 136
S. Ct. 1557 (2016); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049
(2020); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S.
Ct. 2367 (2020); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).
Becket has also litigated cases before this and other courts concerning the inter-
section of COVID-related restrictions and the free exercise of religion. See, e.g.,
Agudath Israel of Am. v. Cuomo, 141 S. Ct. 889 (2020); Lebovits v. Cuomo, 1:20-cv-
01284 (N.D.N.Y. filed Oct. 16, 2020) (challenge to restrictions on Jewish girls’ school);
ii
Roman Catholic Archbishop of Washington v. Bowser, No. 20-cv-03625, 2021 WL
1146399 (D.D.C. Mar. 25, 2021) (enjoining restrictions on worship attendance).
Amicus offers the proposed brief to address how vaccine mandate conflicts, while
difficult, can be resolved by courts holding parties on all sides—plaintiffs, govern-
ments, and employers—to their respective burdens. Doing so will provide much-
needed guidance to the lower courts, and much-needed assurance to the public, that
ours is a “government of laws, not of men.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 646 (Jackson, J., concurring). The amicus brief thus includes relevant
material not fully brought to the attention of the Court by the parties. See Sup. Ct.
R. 37.1.
For the foregoing reasons, Amicus respectfully requests that the Court grant this
unopposed motion to file the attached proposed amicus brief and accept it in the for-
mat and at the time submitted.
Respectfully submitted.
/s/ Mark Rienzi
MARK RIENZI
Counsel of Record
DANIEL BLOMBERG
ADÈLE KEIM
KAYLA TONEY
THE BECKET FUND
FOR RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
mrienzi@becketlaw.org
Counsel for Amicus Curiae
OCTOBER 2021
iii
No. 20A90
In the Supreme Court of the United States
JOHN DOES 1-3, ET AL.,
Applicants,
v.
JANET T. MILLS, IN HER OFFICIAL CAPACITY AS GOVERNOR OF MAINE, ET AL.,
Respondents.
To the Honorable Stephen G. Breyer, Associate Justice of the United
States Supreme Court and Circuit Justice for the First Circuit
BRIEF AMICUS CURIAE OF THE BECKET FUND FOR RELIGIOUS LIB-
ERTY IN SUPPORT OF APPLICANTS AND EMERGENCY APPLICATION
FOR WRIT OF INJUNCTION
MARK RIENZI
Counsel of Record
DANIEL BLOMBERG
ADÈLE KEIM
KAYLA TONEY
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
mrienzi@becketlaw.org
Counsel for Amicus Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... iii
INTEREST OF THE AMICUS CURIAE ...................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 2
ARGUMENT .................................................................................................................. 4
I. Religious liberty plaintiffs must show their claims are
sincere and religious. ..................................................................................... 4
II. Mandates that selectively burden religious exercise must
satisfy strict scrutiny. .................................................................................... 6
III. Maine hasn’t carried its burden on strict scrutiny..................................... 12
IV. Maine cannot exempt employers from their burdens
under Title VII. ............................................................................................ 17
CONCLUSION............................................................................................................. 19
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Agudath Israel of Am. v. Cuomo,
141 S. Ct. 889 (2020) ................................................................................................ 1
Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60 (1986) .................................................................................................. 18
Brown v. Entertainment Merchs. Ass’n,
564 U.S. 786 (2011) ................................................................................................ 12
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ........................................................................................ 1, 5, 17
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ............................................................................................ 6, 16
City of Boerne v. Flores,
521 U.S. 507 (1997) ................................................................................................ 12
Cruzan v. Director, Mo. Dep’t. of Health,
497 U.S. 261 (1990) .............................................................................................. 2, 9
Dr. A. v. Hochul,
No. 1:21-cv-1009, 2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021) ...................... 14, 17
EEOC v. Chevron Phillips Chem. Co.,
570 F.3d 606 (5th Cir. 2009) .................................................................................. 18
Employment Div. v. Smith,
494 U.S. 872 (1990) .........................................................................................passim
Fulton v. City of Philadelphia,
141 S. Ct. 1868 (2021) .....................................................................................passim
Girouard v. United States,
328 U.S. 61 (1946) .................................................................................................... 4
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ................................................................................................ 12
Holt v. Hobbs,
574 U.S. 352 (2015) ................................................................................ 1, 13, 14, 16
iii
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171 (2012) .................................................................................................. 1
Lebovits v. Cuomo,
1:20-cv-01284 (N.D.N.Y. filed Oct. 16, 2020)........................................................... 1
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
140 S. Ct. 2367 (2020) .............................................................................................. 1
Masterpiece Cakeshop Ltd. v. Colorado Civ. Rts. Comm’n,
138 S. Ct. 1719 (2018) ............................................................................................ 11
McCullen v. Coakley,
573 U.S. 464 (2014) ................................................................................................ 14
Our Lady of Guadalupe Sch. v. Morrissey-Berru,
140 S. Ct. 2049 (2020) .............................................................................................. 1
Roberts v. Neace,
958 F.3d 409 (6th Cir. 2020) ............................................................................ 11, 16
Roman Catholic Archbishop of Washington v. Bowser,
No. 20-cv-03625, 2021 WL 1146399 (D.D.C. Mar. 25, 2021) .................................. 1
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) .................................................................................................. 2
Sherbert v. Verner,
374 U.S. 398 (1963) .................................................................................................. 9
Tandon v. Newsom,
141 S. Ct. 1294 (2021) .....................................................................................passim
Thomas v. National Ass’n of Letter Carriers,
225 F.3d 1149 (10th Cir. 2000) ......................................................................... 17-18
Thomas v. Review Bd.,
450 U.S. 707 (1981) ............................................................................................ 9, 12
Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017) ............................................................................................ 11
United States v. Quaintance,
608 F.3d 717 (10th Cir. 2010) .................................................................................. 4
United States v. Secretary,
828 F.3d 1341 (11th Cir. 2016) ................................................................................ 5
iv
Washington v. Glucksberg,
521 U.S. 702 (1997) ............................................................................................. 9-10
Washington v. Harper,
494 U.S. 210 (1990) .................................................................................................. 9
Wisconsin v. Yoder,
406 U.S. 205 (1972) .................................................................................................. 5
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .............................................................................................. 2, 4
Zubik v. Burwell,
136 S. Ct. 1557 (2016) .............................................................................................. 1
Statutes
42 U.S.C. 2000e ...................................................................................................... 17, 18
2001 Me. Legis. Serv. Ch. 185 ..................................................................................... 10
Me. Rev. Stat. Title 22, § 802 .............................................................................. 6, 9, 15
Other Authorities
29 C.F.R. 1605.2 ........................................................................................................... 18
The Commonwealth of Massachusetts, Order of the Commissioner of
Public Health No. 2021-4 (Aug. 4, 2021) ............................................................... 14
California Department of Public Health, Order of the State Public
Health Office Adult Care Facilities and Direct Care Worker Vaccine
Requirement (Sept. 28, 2021) ................................................................................. 13
Colorado Department of Public Health and Environment, Standards
for Hospitals and Health Facilities, 6 CCR 1011-1(12)
(Aug. 30, 2021) ........................................................................................................ 13
Delaware Health and Social Services, Emergency Secretary’s Order
(Sept. 10, 2021) ....................................................................................................... 14
EEOC, What you should know about COVID-19 ........................................................ 18
Government of the District of Columbia, Mayor’s Order 2021-099
(Aug. 10, 2021) ................................................................................................... 13-14
Governor of New Jersey, Executive Order No. 252 (Aug. 6, 2021)............................. 14
v
Maryland Department of Health, Amended Directive and Order Re-
garding Vaccination Matters, MDH No. 2021-08-18-01
(Aug. 18, 2021) ........................................................................................................ 14
National Academy for State Health Policy, State Efforts to Ban or
Enforce COVID-19 Vaccine Mandates and Passports,
updated Oct. 8, 2021............................................................................................... 13
Oregon Health Authority Public Health Division 333-019-1010
(Sept. 1, 2021) ......................................................................................................... 14
Safer Federal Workforce, Vaccinations....................................................................... 14
State of Connecticut, Executive Order No. 13F (Sept. 3, 2021) ................................. 13
State of Illnois, Executive Order 2021-22 (Sept. 3, 2021) ........................................... 14
State of Washington, Proclamation by the Governor 21-14, COVID-19
Vaccination Requirement (Aug. 9, 2021) ............................................................... 14
Transcript: Weekly COVID-19 Briefing (Sept. 8, 2021) ............................................. 15
United States Census Bureau, 65 and Older Population Grows Rapidly
as Baby Boomers Age, Release No. CB20-99 (June 25, 2020) ............................... 15
vi
INTEREST OF THE AMICUS CURIAE 1
The Becket Fund for Religious Liberty is a non-profit, nonpartisan law firm dedi-
cated to protecting the free expression of all religious traditions. Becket has repre-
sented agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Santeros, Sikhs,
and Zoroastrians, among others, in lawsuits across the country. Becket has also rep-
resented numerous prevailing religious parties in this Court. See, e.g., Hosanna-Ta-
bor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012); Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Holt v. Hobbs, 574 U.S. 352 (2015);
Zubik v. Burwell, 136 S. Ct. 1557 (2016); Our Lady of Guadalupe Sch. v. Morrissey-
Berru, 140 S. Ct. 2049 (2020); Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 140 S. Ct. 2367 (2020); Fulton v. City of Philadelphia, 141 S. Ct. 1868
(2021).
Becket has also litigated cases before this and other courts concerning the inter-
section of COVID-related restrictions and the free exercise of religion. See, e.g.,
Agudath Israel of Am. v. Cuomo, 141 S. Ct. 889 (2020); Lebovits v. Cuomo, 1:20-cv-
01284 (N.D.N.Y. filed Oct. 16, 2020) (challenge to restrictions on Jewish girls’ school);
Roman Catholic Archbishop of Washington v. Bowser, No. 20-cv-03625, 2021 WL
1146399 (D.D.C. Mar. 25, 2021) (enjoining restrictions on worship attendance).
Amicus offers the proposed brief to address how vaccine mandate conflicts, while
difficult, can be resolved by courts holding parties on all sides—plaintiffs,
1 No counsel for a party authored this brief in whole or in part, and no person other than amicus,
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.
1
governments, and employers—to their respective burdens. Doing so will provide
much-needed guidance to the lower courts, and much-needed assurance to the public,
that even in emergencies ours is a “government of laws, not of men.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (Jackson, J., concurring). Here, Maine
has failed to carry its burden to justify the relevant vaccine mandate, and therefore
an injunction should issue pending disposition of the forthcoming petition for certio-
rari. This is not to say that another government could not satisfy strict scrutiny, or
that Maine itself could not do so in the future. But it is important for this Court to
acknowledge that Maine has not yet done so in this case and, until it does, cannot
categorically deprive a discrete subset of employees of accommodation for their reli-
gious objections to accepting a vaccination in violation of their religious beliefs.
INTRODUCTION AND SUMMARY OF ARGUMENT
The difficult question of vaccine mandates—with which governments, employers,
and millions of Americans are currently struggling—involves important interests on
all sides. On one hand, governments seek to prevent the spread of a deadly disease
and protect public health during a pandemic. Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 67 (2020). On the other, there is a long legal tradition protecting
the decision to refuse unwanted medication, sometimes made for religious reasons.
Cruzan v. Director, Mo. Dep’t. of Health, 497 U.S. 261, 270, 278 (1990).
Where such powerful interests collide, it is critically important for this Court to
hold the parties—all of the parties—to their respective burdens under the law. For
plaintiffs, that means courts must insist that religious liberty claims can only be
2
advanced by those whose claims are both sincere and religious. For governments, it
means that they must be required to carry their constitutional burdens by proving,
with evidence, that a mandate is actually in furtherance of a compelling government
interest, and that denying an exemption is the least restrictive means of achieving
that interest. For employers, it means that they must accommodate sincere religious
objectors unless they demonstrate that doing so would impose an undue hardship
under Title VII.
Here, straightforward application of those burdens requires an injunction for the
plaintiffs. Sincerity and religiosity have been conceded. Maine’s categorical with-
drawal of its previous religious exemption, coupled with a mandate that both burdens
a specific subset of the population and includes secular exemptions for anytime vac-
cination “may” be medically “inadvisable,” would only be permissible if Maine could
pass strict scrutiny.
On this record, Maine has failed to pass that test. First, Maine is an outlier. Forty-
seven other states either do not have vaccine mandates on private healthcare facili-
ties, allow testing as an alternative, or allow for religious exemptions. Maine has not
proven that it cannot follow those alternative approaches, including those of rural
states with small populations. Second, Maine has not demonstrated that it cannot
allow religious objectors to work on the same terms as those subject to its secular
exemptions. Maine may one day be able to justify some version of a mandate, but has
failed to do so here.
Finally, Maine’s categorical ban on religious exemptions cannot override Title VII,
3
particularly for employers who can (and therefore must) reasonably accommodate
their employees without undue hardship.
Accordingly, this Court should grant the application and enjoin operation of
Maine’s mandate as to plaintiffs. At a minimum it should remand to the lower courts
to hold Maine to the appropriate legal burdens before allowing it to impose its man-
date. Doing so will confirm that ours is a “government of laws, not of men,” Youngs-
town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (Jackson, J., concurring)—even
in emergencies.
ARGUMENT
I. Religious liberty plaintiffs must show their claims are sincere and reli-
gious.
Religious liberty claims are available only for exercises that are both sincere and
religious. Free exercise guarantees are the product of a “struggle for religious lib-
erty * * * through the centuries,” one where “men have suffered death rather than
subordinate their allegiance to God to the authority of the State.” Girouard v. United
States, 328 U.S. 61, 68 (1946). Courts can and should ensure that parties do not in-
sincerely invoke this hard-won right, see, e.g., United States v. Quaintance, 608 F.3d
717, 721 (10th Cir. 2010), including raising the issue sua sponte at the trial level
where appropriate. That is because defendant governments sometimes have a strong
incentive not to contest sincerity even when it is an obvious issue, including in pro se
prisoner cases. In such cases, winning on the factual issue of sincerity—which by its
nature is limited to particular plaintiffs—may in government officials’ view be infe-
rior to the categorical and precedential rules they can obtain if the courts reach the
4
merits of their claims. Cf. United States v. Secretary, 828 F.3d 1341, 1349 (11th Cir.
2016) (“The United States produced evidence that the Department is not screening
out insincere applicants”).
Indeed, “the ability of the federal courts to weed out insincere claims” is widely
recognized; Congress passed both RFRA and RLUIPA “confident” “that the federal
courts were up to the job.” Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682, 718
(2014). That was true even for the category of prisoner claims, where “the propensity
of some prisoners to assert claims of dubious sincerity was well documented.” Ibid.
Excluding insincere claims is thus beneficial both for religious liberty and the law
more broadly, because it reduces the number of religious liberty conflicts and allows
non-religious disputes to be resolved under other, more applicable legal doctrines.
Similarly, sincere beliefs that are philosophical or political rather than religious,
however strongly held, cannot serve as the basis for Free Exercise claims. Non-reli-
gious beliefs or ways of life, “however virtuous and admirable,” do not come within
the ambit of the Free Exercise Clause. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
To enjoy such protections, “the claims must be rooted in religious belief.” Ibid.
Before this Court, however, there is no dispute as to sincerity or religiosity. Plain-
tiffs here made detailed and sworn factual pleadings about their religious beliefs and
motivations, including 24 scriptural references. Verified Compl. ¶¶ 50-74. In light of
this thorough demonstration, defendants did not dispute sincerity or religiosity,
prompting the district court to “treat these facts as established for purposes of decid-
ing the Preliminary Injunction Motion.” Pet. App. Ex. 5, at 8.
5
II. Mandates that selectively burden religious exercise must satisfy strict
scrutiny.
The courts below upheld Maine’s mandate under Smith. But Maine’s regulation
is not subject to Smith’s rule for at least three reasons: Maine allows for secular ex-
emptions, revoked its religious exemption, and excludes most of the population from
its mandate (including many healthcare workers). Me. Rev. Stat. Title 22, § 802(4-
B)(A) (2021). The mandate thus falls well outside of Smith’s rule for neutral and gen-
erally applicable “across-the-board” statutes. Employment Div. v. Smith, 494 U.S.
872, 884 (1990). It is therefore subject to strict scrutiny. Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993).
Secular exemptions. Maine allows exemptions for any healthcare employee for
whom vaccination even “may” be medically “inadvisable.” Me. Rev. Stat. Title
22, § 802(4-B)(A). This is an extraordinarily broad exemption: it applies no matter
how small the alleged harm or how trivial the likelihood of its occurrence, and regard-
less of the effect on the spread of COVID, so long as the employee produces a “written
statement from a licensed physician, nurse practitioner or physician assistant” opin-
ing that vaccination “may” be inadvisable. Ibid. “[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). Because
Maine broadly allows medical exemptions while categorically forbidding any religious
accommodations, strict scrutiny applies.
The court of appeals disagreed on the grounds that the exemption “support[s]
6
Maine’s public health interests” by “protecting its residents” from “accept[ing] medi-
cally contraindicated treatments.” Pet. App. Ex. 1, at 27. But people who are unvac-
cinated because of “medical inadvisability” and those who are unvaccinated because
of a religious objection undermine Maine’s primary asserted interest in exactly the
same way: Maine says unvaccinated workers contribute to the risk of spreading
COVID. Tandon, 141 S. Ct. at 1296 (finding that it was “clear” that “whether two
activities are comparable for purposes of the Free Exercise Clause must be judged
against the asserted government interest that justifies the regulation at issue,” and
that “[c]omparability is concerned with the risks various activities pose, not the rea-
sons why people” engage in those activities). Thus, where the government grants ac-
commodations for secular interests, as here, it “may not refuse to extend” those ac-
commodations “to cases ‘of religious hardship’ without compelling reason.” Fulton v.
Philadelphia, 141 S. Ct. 1868, 1878 (2021) (quoting Smith, 494 U.S. at 884).
The court of appeals attempted to avoid this issue by citing public health justifi-
cations for the medical exemption. Pet. App. Ex. 1, at 19. But Dr. Shah’s declaration
identifies the government’s “four public health reasons” for the vaccine mandate—all
of which relate to stopping the spread of COVID. Shah Decl. ¶ 56(a)-(d). Thus, judged
from the relevant vantage point—namely “the asserted government interest that jus-
tifies the regulation at issue,” Pet. App. Ex. 1, at 19 (quoting Tandon, 141 S. Ct. at
1296)—the medical exemption undermines general applicability because it under-
mines that interest “in a similar way.” Ibid. (citing Fulton). An unvaccinated em-
ployee is an unvaccinated employee, regardless of the reason for being unvaccinated.
7
In any event, even accepting the court of appeals’ level-of-generality shift, this
particular medical exemption would still trigger strict scrutiny because of how
broadly it sweeps. Maine’s policy directs employers to grant medical exemptions no
matter the reason or factual circumstances, and regardless of its effect on the spread
of COVID. Thus even a very minor medical reason would qualify, even if it would not
result in significant medical problems or missed work. The court reasoned that in
light of Maine’s broader interest in “protecting the health and safety of all Mainers,”
the medical exemption and a religious exemption weren’t “comparable,” because
denying a medical exemption could make it difficult for Maine to “keep its healthcare
facilities staffed in order to treat patients,” since some healthcare workers might be-
come sick from “medically contraindicated vaccines.” Pet. App. Ex. 1, at 19-22. But
this reasoning makes sense only if one thinks that objecting healthcare workers who
are denied a religious exemption will simply deny their conscience and accept the
vaccine. If, by contrast, such objectors would abide by their conscience and be fired,
then denying a religious exemption could also present staffing problems at Maine
healthcare facilities, and the two exemptions would be fully “comparable” for Tandon
purposes. 141 S. Ct. at 1296.
Of course, other medical exemptions—ones that furthered the government’s un-
derlying interest—might not trigger strict scrutiny. But where the exemption is so
broad that it undermines the interest the government claims justifies its rule, strict
scrutiny is required. And that is the only kind of medical exemption Maine employs.
The court can’t conduct a comparability analysis by “assum[ing] the worst” about
8
religious objectors—i.e., that even though they say they cannot get the vaccine, they
don’t really mean it—while “assum[ing] the best” about medical objectors—i.e., that
the medical consequences of getting a vaccine that may be inadvisable are typically
going to be significant enough to seriously threaten a provider’s health and cause
missed work. Tandon, 141 S. Ct. at 1297. Indeed, such an analysis runs squarely
contrary to this Court’s many religious-unemployment cases, the upshot of which is
that an employee forced to leave a job because of his “religious convictions” can’t be
treated as having “quit voluntarily,” Thomas v. Review Bd., 450 U.S. 707, 712-713
(1981), but instead has just as much “cause” for not working as one who faces “health”
and “safety” risks, Sherbert v. Verner, 374 U.S. 398, 400 n.3 (1963) (quoting South
Carolina benefits statute); see also id. at 407 n.7. On this record, the exemptions are
comparable, meaning the mandate must pass strict scrutiny.
Selective treatment of religious objectors. While Maine retained its broad
medical exemption, it revoked its 30-year-old religious one. In 2019, Maine passed a
law expressly eliminating “religious and philosophical” exemptions from its vaccine
requirements, while preserving the medical exemption. See Me. Rev. Stat. Title
22, § 802(4-B)(B) (2021) (noting repeal). In so doing, Maine acted contrary to the cen-
turies-old tradition of allowing competent adults to refuse unwanted medical treat-
ment, Cruzan, 497 U.S. at 270, which reflects that “[t]he forcible injection of medica-
tion into a nonconsenting person’s body represents a substantial interference with
that person’s liberty.” Washington v. Harper, 494 U.S. 210, 229 (1990); see Washing-
ton v. Glucksberg, 521 U.S. 702, 725 (1997) (“The right assumed in Cruzan” was based
9
on “the common-law rule that forced medication was a battery, and the long legal
tradition protecting the decision to refuse unwanted medical treatment” and was
therefore “entirely consistent with this Nation’s history and constitutional tradi-
tions.”). Maine also acted counter to both its own tradition of allowing religious ex-
emptions from vaccine requirements, 2001 Me. Legis. Serv. Ch. 185 (H.P. 1044) (L.D.
1401) (West), and that of most states and the federal government that continue to
allow religious exemptions from vaccine requirements. See infra at Section III(1).
Maine’s selective elimination of religious exemptions thus took a religious practice
that was lawful (refusing vaccines for religious reasons) and made it unlawful, con-
trary to long tradition and widespread practice, all while leaving in place a broad
secular exemption. A law like this may ultimately turn out to be constitutional. But
it is not the sort of “across-the-board” prohibition only “incidental[ly]” affecting reli-
gious exercise that the Court had in mind in Smith. 494 U.S. at 878, 884.
The court of appeals rejected this analysis on two grounds, both meritless. First,
it reasoned that the law was neutral because the plaintiffs hadn’t shown that the law
prohibited the exemptions “because of their religious nature.” Pet. App. Ex. 1, at 18
(quoting Fulton, 141 S. Ct. at 1877). But a deliberate choice to burden religious con-
duct qua religious conduct, while continuing to exempt parallel secular conduct, is on
its face not neutral as to religion. An employee whose religious objection had been
protected under prior law, and then lost that exemption in 2019 precisely because her
objection was religious, has not been subject to a “neutral” law. Laws that fail to op-
erate “without regard to religion” or that otherwise “single out the religious” for
10
disadvantages “clear[ly] * * * impose[] a penalty on the free exercise of religion that
triggers the most exacting scrutiny.” Trinity Lutheran Church of Columbia v. Comer,
137 S. Ct. 2012, 2020-2021 (2017).
Moreover, “even slight suspicion” that state action against religious conduct
“stem[s] from animosity to religion or distrust of its practices” is enough to require
government officials to reconsider. Masterpiece Cakeshop Ltd. v. Colorado Civ. Rts.
Comm’n, 138 S. Ct. 1719, 1731 (2018). And that’s particularly true here because the
government’s broad accommodations for secular medical interests signal that “the
State” is “assum[ing] the worst” about religious motivations for accommodation “but
assum[ing] the best” about secular ones. Tandon, 141 S. Ct. at 1297 (quoting Roberts
v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) (per curiam)).
Second, the First Circuit found that the law was not a “religious gerrymander”
because the religious exemption had been removed before COVID. Pet. App. Ex. 1, at
29-30. But at most that timing shows that the law is not a COVID gerrymander. The
timing does nothing to change the fact that the removal of an exemption for a
longstanding, traditional, and widespread religious exercise, on its face, is not the
kind of religion-neutral prohibition that falls within Smith, but rather one that fails
to operate “without regard to religion” and thus triggers scrutiny. Trinity Lutheran,
137 S. Ct. at 2020-2021. There may be valid reasons to remove a religious exemption;
but the government must be required to actually justify its conduct.
Finally, Maine’s rule is subject to strict scrutiny because, as a regulation that ap-
plies only to “health care facility employees,” it is not the kind of generally applicable,
11
across-the-board statute contemplated in Smith. In fact, even within the healthcare
field, the law is not across-the-board: as Maine explained to the First Circuit, its man-
date “does not apply to private physician practices, urgent care clinics, or any other
facility not identified in the rule.” 10/18/21 Me. C.A. Br. 49. There may be good rea-
sons that Maine has focused on only certain healthcare facility employees, left out
many other healthcare employees, and imposed no vaccine mandate at all on other
large swaths of its population—reasons that go to tailoring and fit. But a mandate
that only applies to a small segment of the state’s population is, by definition, not
“generally applicable.” Maine therefore must meet its burden to demonstrate that
this selectivity passes strict scrutiny.
III. Maine hasn’t carried its burden on strict scrutiny.
Maine bears the burden of satisfying strict scrutiny. Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 429-430 (2006). Strict scrutiny is “the
most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S.
507, 534 (1997); see also Thomas, 450 U.S. at 718 (“The state may justify an inroad
on religious liberty by showing that it is the least restrictive means of achieving some
compelling state interest.”). Even when the government has identified a problem in
need of solving, the restriction “must be actually necessary to the solution.” Brown v.
Entertainment Merchs. Ass’n, 564 U.S. 786, 799 (2011). “That is a demanding stand-
ard.” Ibid. And “because [the government] bears the risk of uncertainty, ambiguous
proof will not suffice.” Id. at 799-800 (internal citations omitted). And “so long as the
government can achieve its interests in a manner that does not burden religion, it
12
must do so.” Fulton, 141 S. Ct. at 1881.
Maine has failed to carry this burden in two ways:
1. No proof that Maine needs greater restrictions than 47 other states and
the federal government. Maine is an outlier. Forty-seven other states have either
not imposed any COVID vaccination mandate on private-sector healthcare workers,
have allowed religious exemptions, or have allowed accommodations like weekly test-
ing. The federal government also allows religious exemptions for agency employees.
“[W]hen so many” other jurisdictions “offer an accommodation, [Maine] must, at a
minimum, offer persuasive reasons why it believes that it must take a different
course.” Holt v. Hobbs, 574 U.S. 352, 369 (2015).
According to data from the National Academy for State Health Policy (NASHP),
only 15 states require private-sector healthcare workers to be vaccinated against
COVID. 2 Of these, all but three states either provide for religious exemptions or allow
employees to undergo testing in lieu of vaccination. 3 Only New York, Rhode Island,
2 National Academy for State Health Policy, State Efforts to Ban or Enforce COVID-19 Vaccine Man-
dates and Passports, updated Oct. 8, 2021, https://perma.cc/ME38-JX5T. NASHP identifies 15 states
that have imposed COVID vaccine mandates on healthcare employees working in the private sector
(California, Colorado, Connecticut, the District of Columbia, Delaware, Illinois, Maine, Massachusetts,
Maryland, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Washington). NASHP
identifies an additional eight states that impose vaccine mandates on healthcare workers employed
by the state, but do not require private-sector healthcare employees to be vaccinated (Hawaii, Ken-
tucky, Minnesota, Nevada, North Carolina, Pennsylvania, Vermont, and Virginia).
3 California, Colorado, Connecticut, the District of Columbia, Illinois, Massachusetts, Maryland,
New Mexico, Oregon, and Washington allow for religious exemptions to their healthcare employee
vaccination mandates. California Department of Public Health, Order of the State Public Health Office
Adult Care Facilities and Direct Care Worker Vaccine Requirement (Sept. 28, 2021),
https://perma.cc/2KWE-JLBK; Colorado Department of Public Health and Environment, Standards
for Hospitals and Health Facilities, 6 CCR 1011-1(12) (Aug. 30, 2021), https://perma.cc/E3BY-48PV;
State of Connecticut, Executive Order No. 13F (Sept. 3, 2021), https://perma.cc/YDC5-G8KF; Govern-
ment of the District of Columbia, Mayor’s Order 2021-099 (Aug. 10, 2021), https://perma.cc/3T3F-U2T3
(mandate for District employees), https://perma.cc/9MND-GWGX (adding healthcare workers on Aug.
13
and Maine require private-sector healthcare workers to receive COVID vaccines with
no religious accommodation or testing alternative. 4 And the federal government rec-
ognizes that its agencies can be “required to provide a reasonable accommodation to
employees * * * because of a sincerely held religious belief, practice, or observance.”
Safer Federal Workforce, Vaccinations, https://perma.cc/EWU4-N3E9. Where, as
here, Maine “has available to it a variety of approaches that appear capable of serving
its interests,” it must explain why it cannot take the more common path. McCullen v.
Coakley, 573 U.S. 464, 493-494 (2014) (considering policies of other states); Holt, 574
U.S. at 368-369 (same).
Maine’s response boils down to its claim that it is unique because it is a rural
state with a small healthcare provider population. Shah Decl. ¶ 66. But Maine no-
where explains why this problem is more acute in Maine than in many other similar
states that have less population density and fewer providers. For example, Maine
does not explain why the approach taken in neighboring Vermont, which is also
16, 2021); State of Illinois, Executive Order 2021-22 (Sept. 3, 2021), https://perma.cc/33YF-5ZJN; Mar-
yland Department of Health, Amended Directive and Order Regarding Vaccination Matters, MDH No.
2021-08-18-01 (Aug. 18, 2021), https://perma.cc/5MEB-S3E4; The Commonwealth of Massachusetts,
Order of the Commissioner of Public Health No. 2021-4 (Aug. 4, 2021), https://perma.cc/YNY5-UXW6;
Oregon Health Authority Public Health Division 333-019-1010 (Sept. 1, 2021), https://perma.cc/8UHK-
SJZU; State of Washington, Proclamation by the Governor 21-14, COVID-19 Vaccination Requirement
(Aug. 9, 2021), https://perma.cc/9KKV-GP97.
Delaware and New Jersey allow for weekly or twice weekly testing as an alternative to vaccination:
Delaware Health and Social Services, Emergency Secretary’s Order (Sept. 10, 2021),
https://perma.cc/Z7CL-CK7R; Governor of New Jersey, Executive Order No. 252 (Aug. 6, 2021),
https://perma.cc/J6J9-WULD.
4 New York’s mandate, which removed a religious exemption, was enjoined by the Northern District
of New York because it was not neutral or generally applicable, and likely to fail strict scrutiny because
the government failed to explain why reasonable accommodations that worked for medically exempted
employees could not be extended to employees exempted for religious reasons. Dr. A. v. Hochul, No.
1:21-cv-1009, 2021 WL 4734404, at *5 (N.D.N.Y. Oct. 12, 2021).
14
small and rural, but imposes no mandate on private sector healthcare workers and
allows even state workers to test and mask if they do not want the vaccine, 5 would
not work in Maine. Nor does Maine explain how states with even smaller popula-
tions and even greater size than Maine—states like Alaska, the Dakotas, Montana,
and Wyoming—can protect their health systems against the same disease with
much less restrictive approaches. 6 To constitutionally impose its mandate, Maine
must explain why the less restrictive approaches used in these other states wouldn’t
work for Maine. Having failed to do so, Maine has failed strict scrutiny.
2. No proof that religious objectors cannot be treated like those who are
exempt for other reasons. Maine also fails strict scrutiny because it has not demon-
strated why it cannot treat employees with religious objections like those who are
exempt from the mandate, including those who are medically exempt and those who
work at “private physician practices” and “urgent care centers.”
First, Maine has continued to broadly allow medical exemptions for any reason
that even “may” make the vaccine medically “inadvisable,” as determined by “the
physician’s, nurse practitioner’s or physician assistant’s professional judgment.” Me.
Rev. Stat. Title 22, § 802(4-B)(A). But the concerns that Maine raises to allowing any
5 See Transcript: Weekly COVID-19 Briefing (Sept. 8, 2021), https://perma.cc/CK8E-DLL5 (execu-
tive branch employees required to be “vaccinated or be subject to at least weekly testing and manda-
tory masking at work”).
6 The First Circuit fared no better when it tried to make up for Maine’s evidentiary shortfall by
noting the percentage of Maine’s population that is above 65. Pet. App. Ex. 1, at 6 (citing United States
Census Bureau, 65 and Older Population Grows Rapidly as Baby Boomers Age, Release No. CB20-99,
June 25, 2020, https://perma.cc/UY4E-GZJ2. But neighboring Vermont has essentially the same per-
centage elderly population, as do Florida and West Virginia. Ibid. None has imposed a mandate like
Maine’s, so Maine needs to explain why the less restrictive approaches taken by these comparable
states would not work in Maine.
15
kind of religious accommodation would fully apply to medically exempt healthcare
workers. For instance, Maine says that religious healthcare workers can’t be accom-
modated in dentists’ offices because dental patients have their mouths open for
lengthy periods, nor in EMS because of the close proximity to potentially unmasked
patients. Shah Decl. ¶¶ 57-58. But that’s all just as true for a medically exempt dental
worker or EMS provider.
Likewise, Maine emphasized to the First Circuit that its mandate does not include
“private physician practices” and “urgent care centers.” But Maine never explains
why whatever precautions apply in those healthcare facilities cannot be used for reli-
gious objectors in facilities subject to the mandate.
Maine’s broad medical exemption and its patchwork approach to healthcare pro-
viders thus show the mandate “hardly counts as [the] no-more-than-necessary law-
making” required to pass the least-restrictive-means test, Roberts, 958 F.3d at 415,
and suggests the government’s “interests could be achieved by narrower [policies]
that burdened religion to a far lesser degree.” Lukumi, 508 U.S. at 546. That is, what-
ever means Maine is using to ensure the medically exempt don’t increase COVID
risks must be applied to sincere religious objectors who work in the exact same facil-
ities. Holt, 574 U.S. at 365 (“[I]f a less restrictive means is available for the Govern-
ment to achieve its goals, the Government must use it.”). Like the Ninth Circuit in
Tandon, the First Circuit erred because it failed to “requir[e] the State to explain why
it could not safely permit” religious objectors to exercise the same “precautions used
16
[for] secular” objectors. 141 S. Ct. at 1297. Maine must meet its “exceptionally de-
manding” burden of proof. Hobby Lobby, 573 U.S. at 728.
All this is not to say that Maine can never make a showing that it has reasons
specific to it that differentiate it from 47 other states, or that it could not have good
reasons for allowing certain medical exemptions but not religious exemptions, even
when they have the same effect on the spread of COVID. But Maine must at least try
to make that evidentiary showing, and thus far in this litigation it has not. 7
IV. Maine cannot exempt employers from their burdens under Title VII.
Maine also cannot replace Title VII’s requirement that employers provide reason-
able accommodations to religious employees with a categorical ban on any such ac-
commodations. Title VII prohibits, and gives courts equitable authority to enjoin, ad-
verse employment actions on the basis of “all aspects of religious observance and
practice, as well belief,” including religious beliefs about vaccines. 42 U.S.C. 2000e(j);
42 U.S.C. 2000e-5(g); Dr. A v. Hochul, No. 1:21-cv-1009, 2021 WL 4734404, at *5
(N.D.N.Y. Oct. 12, 2021) (enjoining vaccine mandate because, inter alia, it prevented
employers from reasonably accommodating employees with religious objections in ac-
cordance with Title VII).
Employers accordingly have multiple duties under Title VII. First, they must en-
gage in a good faith “interactive process” involving “bilateral cooperation” and “mean-
ingful dialogue” with their employees who request religious accommodations. Thomas
7 New York and California also made unsupported claims to this Court about the interests they sought
to further in restricting religious worship. Since then those claims about the spread of COVID have
proven to be inaccurate; no government continues to make them now.
17
v. National Ass’n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000); Ansonia
Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986); EEOC v. Chevron Phillips Chem.
Co., 570 F.3d 606, 621 (5th Cir. 2009). Second, employers must provide reasonable
accommodations to employees who do not get vaccinated because of a sincerely held
religious belief, practice, or observance, unless they can show that doing so would be
an “undue hardship.” 42 U.S.C. 2000e(j); 29 C.F.R. 1605.2. These duties are closely
linked; without engaging in the required interactive process with its employees, an
employer does not know whether an acceptable accommodation would pose an undue
hardship. Chevron, 570 F.3d at 621. But, while acknowledging that Title VII con-
trolled, the First Circuit simply asserted, without putting the defendant hospitals to
their proof, that any accommodation would cause undue hardship. Not so.
For instance, if employers can accommodate medical objectors, it’s not clear why
they cannot do the same for religious ones. And, as spelled out in recent EEOC guid-
ance, before terminating a religious employee, employers must “thoroughly consider
all possible reasonable accommodations” such as masking, social distancing, modified
shifts, periodic testing, telework, or reassignment, and then “demonstrate”—not just
assert—that each of those alternatives would create an undue hardship. See K.2.,
K.12., and L.3. at EEOC, What you should know about COVID-19 (updated Oct. 25,
2021), https://perma.cc/CC2W-CQR8 (“An employer cannot rely on speculative hard-
ships when faced with an employee’s religious objection but, rather, should rely on
objective information” and “will need to demonstrate how much cost or disruption the
employee’s proposed accommodation will involve”). Yet Maine’s mandate violates
18
Title VII by preventing employers from even considering such accommodations.
Which leads to the most obvious Title VII violation: the mandate forces an employer
which either wants to or can accommodate its employees’ religious beliefs to nonethe-
less exclude them from the worksite. Indeed, no matter how easy it might be to ac-
commodate employees—and thus not lose valuable healthcare workers when even
Maine acknowledges the sector is “fragile due to understaffing” (Shah Decl. ¶ 56(c))—
the mandate requires exclusion.
* * *
Vaccine mandates raise difficult questions, involve weighty societal interests, and
generate heated political and social debates. Our Constitution and court system can
handle such conflict—indeed, they can help the country work through the conflict—
but only if courts hold all parties to their respective burdens to determine when and
whether such mandates would be constitutionally permissible.
CONCLUSION
This Court should issue the requested injunction pending disposition of the forth-
coming petition for certiorari. In the alternative, the Court should grant the applica-
tion and remand to the lower courts to hold the parties to their appropriate burdens.
Respectfully submitted.
/s/ Mark Rienzi
MARK RIENZI
Counsel of Record
DANIEL BLOMBERG
ADÈLE KEIM
KAYLA TONEY
19
THE BECKET FUND
FOR RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
mrienzi@becketlaw.org
Counsel for Amicus Curiae
OCTOBER 2021
20
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