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Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250. 21A251, 21A252, 21A258,
21A259, 21A260, and 21A267
In the
Supreme Court of the United States
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, ITERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
[CASE CAPTIONS ON FOLLOWING PAGES]
On Applications for Stay or Injunction Pending Review of Petition for Writ of
Certiorari to the United States Court of Appeals for the Sixth Circuit
MOTION OF FOUNDATION FOR MORAL LAW FOR LEAVE TO FILE ATTACHED AMICUS
CURIAE BRIEF IN SUPPORT OF APPLICANTS; FOR LEAVE TO FILE WITHOUT 10-DAYS
NOTICE; AND FOR LEAVE TO FILE IN PAPER FORMAT
JOHN A. EIDSMOE*
*Counsel of Record
ROY S. MOORE
TALMADGE BUTTS
FOUNDATION FOR MORAL LAW
One Dexter Avenue
Montgomery, AL 36104
(334) 262-1245
kayla@morallaw.org
eidsmoeja@juno.com
talmadge@morallaw.org
Counsel for Amicus Curiae
JOB CREATORS NETWORK, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
PHILLIPS MANUFACTURING & TOWER COMPANY, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
THE SOUTHERN BAPTIST THEOLOGICAL SEMINARY, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
STATE OF OHIO, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
BST HOLDINGS, LLC, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
HERITAGE FOUNDATION, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
WORD OF GOD FELLOWSHIP, INC. D/B/A DAYSTAR TELEVISION NETWORK, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
ASSOCIATED BUILDERS AND CONTRACTORS, INC., ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
SCOTT BEDKE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE IDAHO HOUSE OF
REPRESENTATIVES, ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
REPUBLICAN NATIONAL COMMITTEE,
Applicant,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
BETTEN CHEVROLET, INC.,
Applicant,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
BENTKEY SERVICES, LLC, DBA THE DAILY WIRE,
Applicant,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
FABARC STEEL SUPPLY, INC., ET AL.,
Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET
AL.,
Respondents.
___________________________
i
MOTION FOR LEAVE TO FILE AN AMICUS BRIEF
The Foundation for Moral Law (the Foundation) respectfully moves
for (1) leave to file the attached brief as amicus curie in support to the
Emergency Applications for Administrative Stays and Stays of
Administrative Action, and Alternative Petitions for Writ of Certiorari
Before Judgment, filed between December 17 and December 22, 2021, (2)
to file without providing 10 days' advance notice to the parties of the
Foundation's intent to file; and (3) to file in unbound format on 8 1/2 - by
- 11 inch paper rather than in booklet form.
Because of expedited briefing schedule ordered by the Court and
the announcement of the January 7, 2022 hearing, the Foundation did
not seek consent of the parties to file.
Amicus Foundation is a 501(c)(3) nonprofit organization dedicated
to the strict interpretation of the Constitution according to the intent of
its Framers, to the preservation of limited government, and to the
defense of the religious liberties and other liberties guaranteed by the
Constitution. The Foundation believes OSHA's ETS violates the
Constitution and will cause irreparable harm to the Applicants, to jobs,
to the economy, to civil liberties, and to America as a whole.
ii
Amicus believes the attached Brief, drafted in large part by a
professor of constitutional law, will be useful to the Court in
demonstrating the limited relevance of Jacobson v. Massachusetts, 197
U.S. 11 (1905) to the case at hand, the nonexistence of a federal police
power, the limited governmental interest in compulsory vaccination
because the vaccine only reduces symptoms but does not prevent the
transmission of the COVID-19 virus, the limits on the power of
government at all levels to regulate for the good of the individual, rather
than for others affected by the individual person's actions, the ways
compulsory vaccination violates not only religious liberty but other civil
liberties as well, and the fact that the power to delegate legislative
authority narrows when civil liberties are affected. The Brief also
examines the January 3, 2022 Order on Preliminary Injunction issued by
the U.S. District Court for the Northern District of Texas in U.S. Navy
Seals v. Biden, Civil Action No. 4:21-cv-01236-O, and its relevance to the
case at hand.
For the foregoing reasons, the Foundation respectfully requests
that the Court grant its motion to file the attached amicus brief. The
Foundation further requests leave to file the brief in unbound format on
iii
8 1/2- by - 11 inch paper rather than in booklet form, and to file the brief
without providing the 10 days' advance notice because of the expedited
briefing ordered by the Court.
Respectfully submitted,
John A. Eidsmoe
Counsel of Record
Roy S. Moore
Talmadge Butts
Foundation for Moral Law
One Dexter Avenue
Montgomery, AL 36104
(334) 262-1245
eidsmoeja@juno.com
Counsel for Amicus Curiae
January 5, 2022
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250. 21A251, 21A252, 21A258,
21A259, 21A260, and 21A267
In the
Supreme Court of the United States
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, ITERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
On Applications for Stay or Injunction Pending Review of Petition for Writ of
Certiorari to the United States Court of Appeals for the Sixth Circuit
BRIEF OF FOUNDATION FOR MORAL LAW AS AMICUS CURIAE BRIEF IN SUPPORT OF
APPLICANTS FOR STAY OR INJUNCTION PENDING REVIEW
JOHN A. EIDSMOE*
*Counsel of Record
ROY S. MOORE
TALMADGE BUTTS
FOUNDATION FOR MORAL LAW
One Dexter Avenue
Montgomery, AL 36104
(334) 262-1245
kayla@morallaw.org
eidsmoeja@juno.com
talmadge@morallaw.org
Counsel for Amicus Curiae
ii
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................... ii
TABLE OF AUTHORITIES .....................................................................iii
INTEREST OF AMICUS CURIAE ........................................................... 1
SUMMARY OF ARGUMENT ................................................................... 1
ARGUMENT ............................................................................................ 2
I. The Constitution does not delegate a police power to the
federal government. ...................................................................... 3
II. The power to delegate legislative authority narrows on
matters that affect civil liberties. ................................................. 8
III. U.S. NAVY SEALs v. Biden deserves this Court’s
consideration. .............................................................................. 15
CONCLUSION ........................................................................................ 17
iii
TABLE OF AUTHORITIES
Cases
Cruzan v. Director, Missouri Department of Health,
497 U.S. 261 (1990) ........................................................................ 14-15
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................. 16
Furman v. Georgia
408 U.S. 238 (1972) ............................................................................... 7
Jacobson v. Massachusetts,
197 U.S. 11 (1905) .............................................................................. 3-4
J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928) ............................................................................... 9
Marshall Field & Co. v. Clark,
143 U.S. 649 (1892) ............................................................................... 8
Mistretta v. United States,
488 U.S. 361 (1989) ............................................................................... 9
Orloff v. Willoughby,
345 U.S. 83 (1953) ............................................................................... 16
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) ............................................................................... 9
Prince v. Massachusetts,
321 U.S. 158 (1944) ............................................................................... 4
Thomas v. Review Board,
450 U.S. 707 (1980) ........................................................................ 12-13
iv
United States v. Robel,
389 U.S. 258 (1967) ....................................................................... 10, 15
United States v. Ballard,
322 U.S. 78 (1944) ............................................................................... 12
U.S. Navy Seals v. Biden,
__ F.Supp.3d __ (N.D. Tex. F.W. 2022) ......................................... 14-17
Washington v. Harper,
494 U.S. 210 (1990) ............................................................................. 14
Wayman v. Southard,
23 U.S. (10 Wheat.) 1 (1825) ................................................................. 8
Constitution and Statutes
Civil Rights Act of 1964, Public Law 88-352, 78 Stat. 241..................... 12
OSHA Emergency Temporary Standard, November 5, 2021 ......... passim
Occupational Safety and Health Act, Public Law 91-596, 84 Stat.
1590 ................................................................................................. passim
United States Constitution ............................................................. passim
Other
Frontline Doctors, Amicus Brief, In. Re. MCP No. 165,
Occupaional Safety and Health Administration, Filed December
30, 2021...................................................................................................... 5
Gerke, S. et al., Applying the proportionality principle to COVID-
19 antibody testing, Journal of Law and the Biosciences, Vol. 7, Iss.
1, Aug. 4, 2020, available at:
https://academic.oup.com/jlb/article/7/1/lsaa058/5878809 ..................... 11
v
Holy Bible, Revelation 13 ........................................................................ 12
"Limiting the State's Police Power: Judicial Reaction to John Stuart
Mill," University of Chicago Law Review: Vol. 37 : Iss. 3 , Article 9
(1970) ......................................................................................................... 7
Madison, James, Summary of Madison's Remarks (10 January
1794), Annals of Congress, House of Representatives, 3rd Congress,
1st Session ................................................................................................. 5
Mill, John Stuart, On Liberty ................................................................ 6-7
The National Catholic Bioethics Center, Vaccine Exemption
Resource for Individuals, (July 7, 2021) https://catholic-
factchecking.com/2021/07/vaccine-exemption-resource-for-
individuals/ .............................................................................................. 11
1
INTEREST OF AMICUS CURIAE1
Amicus Foundation for Moral Law is a 5019c)(3) nonprofit
organization dedicated to the strict interpretation of the Constitution as
intended by its Framers, to keeping government within its constitutional
limits, and to the defense of religious liberty and other liberties
guaranteed by the Constitution. The Foundation believes the OSHA ETS
at issue in this case has been issued without constitutional authority and
is an unconstitutional violation of religious liberties and other
fundamental rights.
SUMMARY OF ARGUMENT
The Covid-19 vaccinations are probably the most controversial
medical treatment in world history. To enforce universal compliance
with its vaccine mandate, the President has ordered the Occupational
Safety and Health Administration (OSHA) to impose an Emergency
Temporary Standard (ETS) that is neither emergency nor temporary and
that, if allowed to stand, would set a precedent empowering the executive
branch of the federal government to regulate all aspects of American life.
1
Because of the expedited briefing schedule ordered by the Court, Amicus has neither sought nor received consent
from the parties. Pursuant to Rule 37.6, no party or party's counsel authored this brief in whole or in part, or
contributed money that was intended to fund its preparation or submission; and no person other than amicus curiae,
its members, or its counsel, contributed money that was intended to fund the preparation or submission of this
brief.
2
This ETS is not authorized by the Constitution, constitutes an
unconstitutional delegation of legislative power, violates religious liberty
and other fundamental rights, and will not accomplish its intended goals.
If Applicants are forced to wait while the courts run their normal
course, they will suffer irreparable harm including loss of their jobs,
careers, and livelihood for themselves and their families. This is
completely unnecessary, but only this Court's timely intervention can
prevent this irreparable harm.
ARGUMENT
In America today, anyone who wants a COVID-19 vaccine can get
one.
But some choose not to get the vaccine. Some make that choice for
medical reasons, others for religious and moral reasons, others for
political reasons, still others for reasons known only to them.
Despite an unparalleled media campaign, vilifying their critics,
ridiculing those who question their conclusions, rewarding those who
capitulate, and de-platforming those who dissent, a substantial portion
of the American public remains unpersuaded that vaccination is a good
3
idea. Having failed to persuade, vaccine proponents are resorting to
coercion instead.
And that’s the underlying reason behind this case.
I. The Constitution does not delegate a police power to the
federal government.
The Briefs of Union Petitioners and the Constitutional
Accountability Center argue that the Occupational Safety and Health Act
(OSH Act) validly delegates to the Occupational Safety and Health
Administration (OSHA) the authority to impose compulsory vaccinations.
However, Congress cannot delegate power it does not possess, any
more than a person can give money he/she does not have. And Congress
does not have power to impose compulsory vaccinations; therefore,
Congress cannot delegate the power to impose compulsory vaccinations.
Jacobson v. Massachusetts, 197 U.S. 11 (1905), is often cited as
authority for the mandatory vaccination. The Foundation believes
Jacobson does not support OSHA’s Emergency Temporary Standard
(ETS) for the following reasons:
(1) Jacobson involved a state law that empowered health
departments to compel vaccinations to prevent the spread of
4
smallpox. States, it is generally agreed, have a police power to
legislate for the health, safety, welfare, and morals of the
people, subject to the limitations of the federal and state
constitutions. But the federal government has no such police
power, so Jacobson does not apply to OSHA’s ETS.
(2) Mr. Jacobson simply argued that the law violated his right to
decline vaccination; he did not raise a religious objection to
vaccination.2
(3) Jacobson did restrict the state’s authority to regulate in ways
that are “beyond all question, a plain, palpable invasion of
rights secured by the fundamental law,” i.e., constitutional
guarantees in our Bill of Rights.
(4) Jacobson is a 1905 case, decided before the courts developed the
“strict scrutiny” doctrine that government can infringe
fundamental rights only by demonstrating a compelling state
interest that cannot be achieved by less restrictive means.
2 A subsequent case, Prince v. Massachusetts, 321 U.S. 158 (1944), said that “The right to practice
religion freely does not include liberty to expose the community or the child to communicable
disease or the latter to ill health or death.” However, that was dicta, not holding. Prince involved
a Jehovah's Witness who had her child with her while preaching in public, and no issue of disease
or epidemic was present in the case. And as the Court expressly said in Prince, “Our ruling does
not extend beyond the facts the case presents.”
5
In 1794, Congress considered a proposal to aid Haitian refugees,
but Congressman James Madison, often called the Father of the
Constitution, objected:
Mr. Madison wished to relieve the sufferers, but was afraid of
establishing a dangerous precedent, which might hereafter be
perverted to the countenance of purposes very different from
those of charity. He acknowledged, for his own part, that he
could not undertake to lay his finger on that article in the
Federal Constitution which granted a right of Congress of
expending, on objects of benevolence, the money of their
constituents.3
Except for a misplaced reference to the commerce clause,
Respondents are unable to lay their fingers upon any portion of the
Constitution that gives to the federal government a police power, much
less a police power that includes compulsory vaccinations. It is axiomatic
that Congress cannot delegate a power it does not possess.
Furthermore, the federal interest in mandatory vaccination is not
as substantial as the Biden Administration suggests. As the Amicus
Brief of Frontline Doctors, pp. 3-9, convincingly documents, COVID-19
injections do not create immunity; they only treat symptoms. The
vaccines do not prevent people from contracting COVID-19 nor from
3 Summation of Madison’s Remarks (10 January 1974), Annals of Congress, House of
Representatives, 3rd Congress, 1st Session, p. 170.
6
spreading COVID-19 to others. They only make the symptoms less
severe.4
If so, the government’s interest in preventing the spread of COVID-
19 is not served by mandatory vaccinations. At most, mandatory
vaccinations only make the symptoms less severe for infected persons.
And that means the government interest is far more minimal.
Although American jurisprudence has not fully accepted the
libertarian principles of John Stuart Mill, his observations in On Liberty
continue to resonate with many:
...the sole end for which mankind are warranted, individually
or collectively, in interfering with the liberty of action of any of
their number, is self-protection. That the only purpose for
which power can be rightfully exercised over any member of a
civilised community, against his will, is to prevent harm to
others. His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be compelled to do or
forbear because it will be better for him to do so, because it will
make him happier, because, in the opinion of others, to do so
would be wise, or even right. These are good reasons for
remonstrating with him, or reasoning with him, or persuading
him, or entreating him, but not for compelling him, or visiting
him with any evil in case he do otherwise. To justify that, the
conduct from which it is desired to deter him must be
calculated to produce evil to some one else. The only part of the
conduct of any one, for which he is amenable to society, is that
which concerns others. In the part which merely concerns
4 Arguably, by making the symptoms less severe, vaccination could encourage people who do not
know they are infected to interact with others, thereby facilitating rather than inhibiting the
spread of COVID-19.
7
himself, his independence is, of right, absolute. Over himself,
over his own body and mind, the individual is sovereign.5
Justice Rehnquist, joined by Chief Justice Burger and Justices Blackmun
and Powell, wrote in dissent in Furman v. Georgia, 408 U.S. 238, 467
(1972):
The Framers of the Constitution would doubtless have agreed
with the great English political philosopher John Stuart Mill
when he observed:
'The disposition of mankind, whether as rulers or
as fellow-citizens, to impose their own opinions and
inclinations as a rule of conduct on others, is so
energetically supported by some of the best and by
some of the worst feelings incident to human
nature, that it is hardly ever kept under restraint
by anything but want of power.' On Liberty 28
(1885).
Even for state governments, which have a police power, that power
may only be exercised to regulate an individual’s conduct that affects the
rights and interests of other people. The state’s power to regulate an
individual’s conduct that affects only himself/herself is much more
limited.
5Editors, Law Review (1970) "Limiting the State's Police Power: Judicial Reaction to John Stuart
Mill," University of Chicago Law Review: Vol. 37 : Iss. 3 , Article 9.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol37/iss3/9
8
And the federal government does not have even this limited police
power.
II. The power to delegate legislative authority narrows on
matters that affect civil liberties.
The doctrine, delegata potestas non potest delegari, simply means
that no delegated powers can be further delegated. Powers that the
people of the United States through the U.S. Constitution have delegated
to one branch of government may not be redelegated by that branch to
another branch of government. One purpose of the rule is to respect the
wishes of the people when they determined that that power should vest,
or reside permanently, with one branch of government. Another is to
preserve accountability, so that a branch of government may not evade
responsibility and accountability by passing its duties to another branch.
Propounded by Chief Justice Marshall in Wayman v. Southard, 23
U.S. (10 Wheat.) 1, 41-43 (1825), the doctrine was articulated by the U.S.
Supreme Court in Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892):
"That [C]ongress cannot delegate legislative power to the president is a
principle universally recognized as vital to the integrity and maintenance
of the system of government ordained by the Constitution."
9
As the administrative state grew in the 1900s, the courts rejected
numerous challenges based on the nondelegation doctrine, so much so
that some have considered nondelegation an outmoded doctrine. But the
courts never rejected or overruled the doctrine itself. Rather, the Court
has interpreted the doctrine to mean that although the legislature may
not delegate legislative authority, it may delegate "rule-making
authority," giving executive agencies the authority to adopt rules that
interpret the laws adopted by the legislature. But as the Court
recognized in Mistretta v. United States, 488 U.S. 361 (1989) and other
cases, the fine line between legislative authority and rule-making
authority is sometimes difficult to draw. Generally, the courts will
uphold a legislature's delegation as "rule-making authority" if the
legislature has given the executive agency reasonably clear guidelines or
criteria by which to make the rules, which rules are expected to be
interpretations of the law the legislature has adopted. This is the
"intelligible principle" rule articulated in J.W. Hampton, Jr., & Co. v.
United States, 276 US. 394, 409 (1928); see also, Panama Refining Co. v.
Ryan, 293 U.S. 388 (1935), in which the Court struck down regulations
on petroleum shipping because the statute authorizing such regulations
10
did not specify circumstances or conditions that would allow regulation,
criteria to guide the President's course of regulation, or required findings
enabling the President to regulate petroleum transportation. Rather, the
Court said, the statute gave "the President an unlimited authority to
determine the policy and to lay down the prohibition, or not to lay it down,
as he may see fit." Id. at 415. Since that time, the courts have usually
upheld delegations, not because they rejected the nondelegation doctrine,
but because they found that in each of these cases the doctrine was not
violated.
In determining whether the delegation guidelines or criteria are
reasonably clear, the Court said in United States v. Robel, 389 U.S. 258
274-75 (1967) that while legislatures "ordinarily may delegate power
under broad standards..., [the] area of permissible indefiniteness
narrows ... when the regulation ... potentially affects fundamental
rights."
Clearly, the issue of compulsory vaccination affects fundamental
rights. Thousands, probably millions, 6 of Americans object to the
COVID-19 vaccine for religious reasons, including the following:
6 A constitutional violation is worthy of this Court’s attention even if only one person’s rights are affected.
11
(1) That the body is the temple of the Holy Spirit and therefore
should not be defiled with an experimental drug that could be dangerous.
Some Roman Catholic theologians have articulated an ethical position
called “therapeutic proportionality” which means that because the
human body is the creation of God and the temple of the Holy Spirit, a
person has a duty to God to weigh the possible benefits of medicine
against the possible risks and adverse consequences and to refuse
medical treatment if the risks and adverse consequences outweigh the
benefits. See https://catholic-factchecking.com/2021/07/vaccine-
exemption-resource-for-individuals/;
https://academic.oup.com/jlb/article/7/1/lsaa058/5878809.
(2) That some COVID vaccines are made from, or were developed
from, cells or cell lines from aborted fetuses, and taking the vaccine
makes the recipient an accessory to abortion, which many believe to be
against God's laws.
(3) That a believer should rely upon God, not vaccines, to heal or
prevent disease. (If you raise this objection, be prepared to explain
whether your objection is to all medical care or just to some kinds of
medical care, and how you distinguish between them.)
12
(4) That when the vaccine is imposed so strongly that a vaccination
passport or the equivalent becomes necessary for being allowed to fly,
enter stores, obtain food or other necessities, or participate in public
events, it becomes what some believe is the “mark of the beast” of
Revelation 13.
(5) That God has established civil government and has given civil
government certain limited authority; that when government exceeds its
God-given authority, it becomes tyrannical, and the individual has a duty
before God to resist the unlawful mandates of a tyrannical government.
Religious beliefs are protected by the First Amendment and the
Civil Rights Act of 1964 whether others agree with them or not. As the
Supreme Court said in United States v. Ballard, 322 U.S. 78 at 87 (1944),
Men may believe what they cannot prove. They may not be
put to the proof of their religious doctrines or beliefs.
Religious experiences which are as real as life to some may be
incomprehensible to others. yet the fact that they may be
beyond the ken of mere mortals does not mean they can be
made suspect before the law.
Nor must religious beliefs be part of the official doctrine of a church
to merit First Amendment protection. As the Court said in Thomas v.
Review Board, 450 U.S. 707 at 715-16 (1980),
13
In reaching its conclusion, the Indiana court seems to have
placed considerable reliance on the facts that Thomas was
"struggling" with his beliefs and that he was not able to
"articulate" his belief precisely. It noted, for example, that
Thomas admitted before the referee that he would not object
to "working for United States Steel or Inland Steel . . .
produc[ing] the raw product necessary for the production of
any kind of tank . . . [because I] would not be a direct party to
whoever they shipped it to [and] would not be . . . chargeable
in . . . conscience. . . ." Ind., 391 N.E.2d, at 1131.
The court found this position inconsistent with Thomas'
stated opposition to participation in the production of
armaments. But Thomas' statements reveal no more than
that he found work in the roll foundry sufficiently insulated
from producing weapons of war. We see, therefore, that
Thomas drew a line, and it is not for us to say that the line he
drew was an unreasonable one. Courts should not undertake
to dissect religious beliefs because the believer admits that he
is "struggling" with his position or because his beliefs are not
articulated with the clarity and precision that a more
sophisticated person might employ.
The Indiana court also appears to have given significant
weight to the fact that another Jehovah's Witness had no
scruples about working on tank turrets; for that other Witness,
at least, such work was "scripturally" acceptable. Intrafaith
differences of that kind are not uncommon among followers of
a particular creed, and the judicial process is singularly ill
equipped to resolve such differences in relation to the Religion
Clauses. One can, of course, imagine an asserted claim so
bizarre, so clearly nonreligious in motivation, as not to be
entitled to protection under the Free Exercise Clause; but that
is not the case here, and the guarantee of free exercise is not
limited to beliefs which are shared by all of the members of a
religious sect. Particularly in this sensitive area, it is not
within the judicial function and judicial competence to inquire
whether the petitioner or his fellow worker more correctly
14
perceived the commands of their common faith. Courts are not
arbiters of scriptural interpretation.
Although portions of the OSH Act and the ETS appear to give lip
service to religious exemptions, it is far from clear that officials and
employers will give religious objections the deferential consideration the
Constitution and this Court require. Amicus notes that, as Judge
O’Connor of the Northern District of Texas observed in his January 3,
2022 ruling in U.S. Navy SEALs, et. al. v. Biden, Civil Action No. 4:21-
cv-01236-O, “The Navy provides a religious accommodation process, but
by all accounts, it is theater. The Navy has not granted a religious
exemption to any vaccine in recent memory. It merely rubber stamps
each denial.” Other government agencies have similarly taken a negative
or skeptical view of religious objections.
And vaccination affects many other fundamental rights. In
Washington v. Harper, 494 U.S. 210, 221-22 (1990), this Court recognized
that prisoners have “a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process
Clause of the Fourteenth Amendment,” adding at 229, “[t]he forcible
injection of medication into a nonconsenting person’s body represents a
substantial interference with that person’s liberty.” In Cruzan v. Director,
15
Missouri Department of Health, 497 U.S. 261 (1990), this Court stated at
269-70, “The informed consent doctrine has become firmly entrenched in
American tort law. The logical corollary of the doctrine of informed
consent is that the patient generally possesses the right not to consent,
that is, to refuse treatment.”
These cases recognize the rights of prisoners and terminally-ill
persons to refuse injections and other forms of treatment. The OSHA
would force injections upon free healthy persons. This clearly involves
fundamental rights, so as this Court said in Robel, the nondelegation
doctrine is considerably narrowed and delegation of legislative authority
must take place, if at all, with far more specific criteria or guidelines as
to how that authority is to be exercised.
III. U.S. NAVY SEALs v. Biden deserves this Court’s
consideration.
On January 3, 2022, the United States District Court for the
Northern District of Texas issued a preliminary injunction enjoining the
Navy from forcing Plaintiffs to undergo vaccination and enjoining the
Navy from taking any adverse actions against Plaintiffs. The case
involved the military rather than OSHA’s ETS, but that is very
16
significant because the courts commonly give more deference to decisions
of military authorities than to those of other government agencies, Orloff
v. Willoughby, 345 U.S. 83, 93 (1953). The case also involved the denial
of religious exemptions, but the District Court’s citation of Elrod v. Burns,
427 U.S. 347, 373 (1976), “The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable
injury” equally applies to other constitutional rights.
The District Court made a very significant observation: The Navy
had refused to grant religious exemptions from the vaccination
requirement but had rather freely granted medical exemptions from the
requirement. By granting medical exemptions, the Court said, the Navy
had effectively forfeited the argument that military necessity prohibited
the granting of religious exemptions.
In the case at hand, the converse should also be true: If the OSHA
ETS provides for religious exemptions, there is no reason OSHA cannot
provide for other exemptions as well. In fact, this undercuts the whole
argument that mandatory universal vaccination is necessary.
17
The Foundation had filed an amicus brief in support of the Navy
SEALs in this case, and the Foundation respectfully invites this Court’s
attention to the January 3 ruling in this case.
CONCLUSION
The first confirmed COVID-19 case in the United States occurred
around January 20, 2020, nearly two years ago. Since then, besides
vaccines, other forms of combating the virus have arisen. On September
9, 2021, President Biden announced that he was directing OSHA to draft
a regulation making vaccination mandatory. OSHA announced that
regulation in November 2021, with vaccination deadlines of January 4,
2022 for many. This “all deliberate speed” hardly sounds like the reaction
to an emergency.
And now, Applicants and their families stand to lose their careers
and their livelihoods because of the OSHA mandate. This, coupled with
the violation of their constitutional rights, clearly constitutes irreparable
injury.
By granting a preliminary injunction until these issues can be fully
litigated and resolved, this Court can preserve Applicants, their families,
and countless others from serious and irreparable injury.
18
The Foundation urges this Court to grant Applicants’ injunction.
Respectfully submitted,
JOHN A. EIDSMOE
Counsel of Record
ROY S. MOORE
TALMADGE BUTTS
FOUNDATION FOR MORAL LAW
One Dexter Avenue
Montgomery, AL 36104
(334) 262-1245
eidsmoeja@juno.com
Counsel for Amicus Curiae
January 5, 2022
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