Court filing

Motion for Leave and Amicus Brief of Religious and Civil-Rights Organizations — Does v. Mills (No. 21A90)

Summary

A motion by religious and civil-rights organizations, with an attached proposed amicus curiae brief, in support of respondents and in opposition to the emergency application for a writ of injunction in No. 21A90, Does v. Mills, in the Supreme Court of the United States. The motion asks leave to file the brief in an unbound format on 8½-by-11-inch paper and without ten days' advance notice, and it lists the amici, including Americans United for Separation of Church and State and the American Civil Liberties Union of Maine. The brief's table of contents lists arguments that the Free Exercise Clause does not entitle people to religious exemptions from a nondiscriminatory vaccination mandate and that the medical exemption does not make the lack of a religious exemption unconstitutional.

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Cite this document

“Motion for Leave and Amicus Brief of Religious and Civil-Rights Organizations — Does v. Mills (No. 21A90).” Original at www.supremecourt.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/scotus/undated-motion-21a90-004-oct-22-2021-main-document-20211022094924850-au-et-al-amicus-motion-with-brief-does-v-mills-pdfa/, SHA-256 4f6dde234e3d2385ae830458904e73b652824dbfe7a53dea04dca233f1ad7016.

Full text

No. 21A90

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 Department of
Health and Human Services; NIRAV D. SHAH, in his official capacity as Director of
the Maine Center for Disease Control and Prevention; MAINEHEALTH; GENESIS
HEALTHCARE OF MAINE, LLC; GENESIS HEALTHCARE, LLC; NORTHERN LIGHT HEALTH
FOUNDATION; MAINEGENERAL HEALTH,
Respondents.

On Emergency Application for Writ of Injunction to the Honorable
Stephen G. Breyer, Associate Justice of the United States Supreme Court
and Circuit Justice for the First Circuit

MOTION BY RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS, WITH
ATTACHED PROPOSED AMICUS CURIAE BRIEF IN SUPPORT OF
RESPONDENTS AND IN OPPOSITION TO EMERGENCY APPLICATION
FOR WRIT OF INJUNCTION, FOR LEAVE (1) TO FILE THE BRIEF, (2) TO
DO SO IN AN UNBOUND FORMAT ON 8½-BY-11-INCH PAPER, AND (3)
TO DO SO WITHOUT TEN DAYS’ ADVANCE NOTICE TO THE PARTIES

DANIEL MACH RICHARD B. KATSKEE
HEATHER L. WEAVER ALEX J. LUCHENITSER
DAVID D. COLE Counsel of Record
American Civil Liberties Union SARAH R. GOETZ
Foundation ADRIANNE M. SPOTO
Americans United for Separation of
EMMA E. BOND Church and State
ZACHARY L. HEIDEN 1310 L St. NW, Ste. 200
American Civil Liberties Union of Washington, DC 20005
Maine Foundation (202) 466-7306
luchenitser@au.org
(Full contact information of the counsel
listed above is on the signature page.)
MOTION FOR LEAVE (1) TO FILE AMICUS CURIAE BRIEF OF
RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS IN SUPPORT OF
RESPONDENTS AND IN OPPOSITION TO EMERGENCY APPLICATION
FOR WRIT OF INJUNCTION, (2) TO DO SO IN AN UNBOUND FORMAT
ON 8½-BY-11-INCH PAPER, AND (3) TO DO SO WITHOUT TEN DAYS’
ADVANCE NOTICE TO THE PARTIES1

Movants, religious and civil-rights organizations, respectfully request leave of

the Court to (1) file the attached amicus curiae brief in support of respondents and in

opposition to applicants’ emergency application for a writ of injunction, (2) file the

brief in an unbound format on 8½-by-11-inch paper, and (3) file the brief without ten

days’ advance notice to the parties.

Positions of the Parties

Applicants do not oppose this motion. The state-official respondents consent to

this motion. The private-party respondents take no position on this motion.

Identities of Amici; Rule 29.6 Statement

All the proposed amici are nonprofit organizations that have no parent

corporations and that are not owned, in whole or in part, by any publicly held

corporation. The proposed amici are:

 Americans United for Separation of Church and State.

 American Civil Liberties Union.

 American Civil Liberties Union of Maine.

 Disciples Center for Public Witness.

 Disciples Justice Action Network.

1 No counsel for a party authored this motion or the proposed amicus brief in whole
or in part, and no person other than amici, their members, or their counsel made a
monetary contribution to fund the motion’s or brief’s preparation or submission.

1
 Equal Partners in Faith.

 Global Justice Institute, Metropolitan Community Churches.

 Interfaith Alliance Foundation.

 Methodist Federation for Social Action.

 National Council of the Churches of Christ in the USA.

 National Council of Jewish Women.

 Reconstructionist Rabbinical Association.

Interests of Amici

Amici are religious and civil-rights organizations that share a commitment to

preserving the constitutional principles of free religious exercise and the separation

of religion and government. They believe that the right to practice one’s faith is

precious, but that it was never intended to override protections for people’s safety and

health. Amici therefore oppose applicants’ contention that the First Amendment’s

Free Exercise Clause requires a religious exemption from Maine’s vaccination

mandate for healthcare workers.

Format and Timing of Filing

Applicants’ emergency application was docketed on October 20, 2021. In light

of the October 25, 2021 deadline that has been set for responding to the application,

there was insufficient time for the proposed amici to prepare their brief for printing

and filing in booklet form, as ordinarily required by Supreme Court Rule 33.1. Nor,

for the same reason, were the proposed amici able to provide the parties with ten

days’ notice of their intent to file the attached brief, as ordinarily required by Rule

2
37.2(a). But the proposed amici did provide notice of their intent to file the brief to

the parties on the same day that the application was docketed.

*****

For the foregoing reasons, the proposed amici respectfully request that the

Court grant this motion to file the attached proposed amicus brief and accept it in the

format and at the time submitted.

Respectfully submitted.

________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ____

DANIEL MACH RICHARD B. KATSKEE
HEATHER L. WEAVER ALEX J. LUCHENITSER
DAVID D. COLE Counsel of Record
American Civil Liberties Union SARAH R. GOETZ
Foundation ADRIANNE M. SPOTO
915 15th St. NW Americans United for Separation of
Washington, DC 20005 Church and State
(202) 675-2330 1310 L St. NW, Ste. 200
dmach@aclu.org Washington, DC 20005
hweaver@aclu.org (202) 466-7306
dcole@aclu.org katskee@au.org
luchenitser@au.org
EMMA E. BOND goetz@au.org
ZACHARY L. HEIDEN spoto@au.org
American Civil Liberties Union of
Maine Foundation
107 Washington Ave., Suite 200
Portland, ME 04101
(207) 774-5444
ebond@aclumaine.org
zheiden@aclumaine.org

Counsel for Amici Curiae

OCTOBER 2021

3
No. 21A90

On Emergency Application for Writ of Injunction to the Honorable
Stephen G. Breyer, Associate Justice of the United States Supreme Court
and Circuit Justice for the First Circuit

BRIEF OF RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS AND IN OPPOSITION
TO EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

DANIEL MACH RICHARD B. KATSKEE
HEATHER L. WEAVER ALEX J. LUCHENITSER
DAVID D. COLE Counsel of Record
American Civil Liberties Union SARAH R. GOETZ
Foundation ADRIANNE M. SPOTO
915 15th St. NW Americans United for Separation of
Washington, DC 20005 Church and State
(202) 675-2330 1310 L St. NW, Ste. 200
Washington, DC 20005
EMMA E. BOND (202) 466-7306
ZACHARY L. HEIDEN luchenitser@au.org
American Civil Liberties Union of
Maine Foundation
107 Washington Ave., Suite 200
Portland, ME 04101
(207) 774-5444
TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES .......................................................................................... ii
INTERESTS OF THE AMICI CURIAE........................................................................ 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 3
ARGUMENT .................................................................................................................. 4
I. The Free Exercise Clause does not entitle people to religious exemptions
from a nondiscriminatory vaccination mandate ..................................................... 4
II. The vaccination mandate’s medical exemption does not render the lack of a
religious exemption unconstitutional ...................................................................... 8
A. The medical exemption does not trigger strict scrutiny .................................... 8
B. Even if the medical exemption triggered strict scrutiny, Maine’s
vaccination requirement would pass muster ................................................... 15
CONCLUSION............................................................................................................. 19

i
TABLE OF AUTHORITIES
Page(s)

Cases

Beckerich v. St. Elizabeth Medical Center,
__ F. Supp. 3d __, No. 2:21-cv-105,
2021 WL 4398027 (E.D. Ky. Sept. 24, 2021) ......................................................... 13
Blackhawk v. Pennsylvania,
381 F.3d 202 (3d Cir. 2004) ........................................................................ 10, 11, 12
Board of Education v. Maas,
152 A.2d 394 (N.J. Super. Ct. App. Div. 1959),
aff’d mem., 158 A.2d 330 (N.J. 1960) ................................................................... 6, 7
Bowen v. Roy,
476 U.S. 693 (1986) .................................................................................................. 9
Brown v. Smith,
235 Cal. Rptr. 3d 218 (Cal. Ct. App. 2018) .............................................................. 6
Brown v. Stone,
378 So. 2d 218 (Miss. 1979) ...................................................................................... 6
C.F. v. N.Y.C. Department of Health & Mental Hygiene,
139 N.Y.S.3d 273 (N.Y. App. Div. 2020) .................................................................. 6
Church of the Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520 (1993) ................................................................................................ 16
City of New Braunfels v. Waldschmidt,
207 S.W. 303 (Tex. 1918) .......................................................................................... 7
Cude v. State,
377 S.W.2d 816 (Ark. 1964) ..................................................................................... 6
Dahl v. Board of Trustees of Western Michigan University,
__ F.4th __, No. 21-2945,
2021 WL 4618519 (6th Cir. Oct. 7, 2021) ............................................................ 8, 9
Davis v. State,
451 A.2d 107 (Md. 1982) .......................................................................................... 6
Employment Division v. Smith,
494 U.S. 872 (1990) .......................................................................... 6, 7, 8, 9, 11, 12

ii
TABLE OF AUTHORITIES—continued

Page(s)

F.F. ex rel. Y.F. v. State,
114 N.Y.S.3d 852 (N.Y. Sup. Ct. 2019), aff’d, 143 N.Y.S.3d 734 (N.Y.
App. Div.), appeal dismissed for lack of a substantial constitutional
question and motion for leave to appeal denied, No. 2021-443, 2021
WL 4735375 (N.Y. Oct. 12, 2021)........................................................................... 15
F.F. v. State,
143 N.Y.S.3d 734 (N.Y. App. Div. 2021), appeal dismissed for lack of
a substantial constitutional question and motion for leave to appeal
denied, No. 2021-443, 2021 WL 4735375 (N.Y. Oct. 12, 2021) ............................... 6
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359 (3d Cir. 1999) ........................................................................ 10, 11, 12
Fulton v. City of Philadelphia,
141 S. Ct. 1868 (2021) ............................................................................ 9, 10, 15, 16
Hannibal & St. Joseph Railroad Co. v. Husen,
95 U.S. 465 (1877) .................................................................................................... 5
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ................................................................................ 4, 5, 6, 11, 12
Mosier v. Barren Cnty. Bd. of Health,
215 S.W.2d 967 (Ky. 1948) ....................................................................................... 7
Nikolao v. Lyon,
875 F.3d 310 (6th Cir. 2017) .................................................................................... 6
Our Lady of Guadalupe School v. Morrissey-Berru,
140 S. Ct. 2049 (2020) .............................................................................................. 4
Phillips v. City of New York,
775 F.3d 538 (2d Cir. 2015) ...................................................................................... 6
Prince v. Massachusetts,
321 U.S. 158 (1944) .............................................................................................. 5, 6
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) ................................................................................................ 17
Sadlock v. Board of Education,
58 A.2d 218 (N.J. 1948) ............................................................................................ 7
Sherbert v. Verner,
374 U.S. 398 (1963) .................................................................................................. 6
State ex rel. Dunham v. Board of Education,
96 N.E.2d 413 (Ohio 1951) ....................................................................................... 7

iii
TABLE OF AUTHORITIES—continued

Page(s)

Tandon v. Newsom,
141 S. Ct. 1294 (2021) ........................................................................................ 9, 16
United States v. Friday,
525 F.3d 938 (10th Cir. 2008) ................................................................................ 17
Wisconsin v. Yoder,
406 U.S. 205 (1972) .................................................................................................. 6
Workman v. Mingo County Board of Education,
419 F. App’x 348 (4th Cir. 2011) .............................................................................. 6
Wright v. DeWitt School District No. 1,
385 S.W.2d 644 (Ark. 1965) ..................................................................................... 6
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) .............................................................. 7, 8, 16, 17, 18
Zucht v. King,
260 U.S. 174 (1922) .................................................................................................. 5

Statutes and Regulations

10-144-264 Me. Code R. (Aug. 12, 2021) ....................................................................... 7
Me. Stat. tit. 22, § 802 ............................................................................................. 9, 12
42 U.S.C. § 2000cc-1 .................................................................................................... 16

Miscellaneous

Olivia Benecke & Sarah E. DeYoung, Anti-Vaccine Decision-Making
and Measles Resurgence in the United States, 6 Glob. Pediatric
Health 1 (2019), https://bit.ly/3pilaup ................................................................... 15
Michael Brice-Saddler & Jasmine Hilton, Thousands of D.C. health
care workers remain unvaccinated amid flurry of religious
exemption requests, Wash. Post (Oct. 2, 2021), wapo.st/3mtJF7c ........................ 13
Defendant University of Minnesota Physicians’ Memorandum
in Support of Dismissal, Roe 1 v. Allina Health System, No.
0:21-cv-2127 (D. Minn. Oct. 8, 2021), ECF No. 73 ................................................ 13
Ashley Fowlkes et al., Effectiveness of COVID-19 Vaccines in
Preventing SARS-CoV-2 Infection Among Frontline Workers Before
and During B.1.617.2 (Delta) Variant Predominance — Eight U.S.
Locations, December 2020–August 2021, Ctrs. for Disease Control &
Prevention (Aug. 27, 2021), https://bit.ly/3zeKepC ................................................. 3

iv
TABLE OF AUTHORITIES—continued

Page(s)

Douglas Laycock, What’s the law on vaccine exemptions? A religious
liberty expert explains, Conversation (Sept. 15, 2021),
https://bit.ly/3lsSGg4 .............................................................................................. 12
Link between COVID vaccination and reduced household transmission,
Swedish study finds, ScienceDaily (Oct. 11, 2021),
https://bit.ly/2Z6zihi ................................................................................................. 3
Elizabeth Llorente, Will N.J. hospitals face a nursing shortage under
vaccine mandates? They already are., NJ.com (Sept. 20, 2021),
https://bit.ly/3CtjDqI .............................................................................................. 13
Thomas May & Ross D. Silverman, ‘Clustering of exemptions’ as a
collective action threat to herd immunity, 21 Vaccine 1048 (2003),
https://bit.ly/2TJONcX ........................................................................................... 15
Lianna Matt McLernon, COVID vaccines very effective, hinder spread,
studies say, CIDRAP (Sept. 9, 2021), https://bit.ly/3nKKmuW .............................. 3
Deidre McPhillips, New CDC data shows the risk of dying from Covid-
19 is 11 times higher for unvaccinated adults than for fully
vaccinated adults, CNN (Oct. 15, 2021), https://cnn.it/3vwvQJ9 ........................... 3
Monitoring Incidence of COVID-19 Cases, Hospitalizations, and
Deaths, by Vaccination Status — 13 U.S. Jurisdictions, April 4–
July 17, 2021, Ctrs. for Disease Control & Prevention (Sept. 10,
2021), https://bit.ly/2XjTGLE ................................................................................... 3
Darius Mostaghimi et al., Prevention of host-to-host transmission by
SARS-CoV-2 vaccines, The Lancet (Sept. 14, 2021),
https://bit.ly/3lBOL0E .............................................................................................. 3
Joseph O’Sullivan, Washington state workers are getting exemptions to
avoid the COVID-19 vaccine — but will they keep their jobs?, Seattle
Times (Sept. 18, 2021), https://bit.ly/3AuHDt9 ..................................................... 14
Kasturi Pananjady & Jenna Carlesso, CT hospitals see spike in
religious exemptions for mandated COVID vaccines, CT Mirror (Oct.
1, 2021), https://bit.ly/2ZQlp7n .............................................................................. 13
Emily Alpert Reyes & Kevin Rector, Thousands of LAPD employees
plan to seek exemptions to COVID-19 vaccine mandate, L.A. Times
(updated Sept. 14, 2021), https://lat.ms/39cyGJ2 ................................................. 14
Merri Rosenberg, School districts can be fined for unvaccinated
students, N.Y. State Sch. Bds. Ass’n (Sept. 23, 2019),
https://bit.ly/3lWzgCe ............................................................................................. 14

v
TABLE OF AUTHORITIES—continued

Page(s)

Paul Sisson, Thousands of San Diego County healthcare workers seek
vaccine exemptions, citing religion, L.A. Times (Sept. 12, 2021),
https://lat.ms/2XpkxWy .......................................................................................... 13
Akshay Syal, Vaccinated people are less likely to spread Covid, new
research finds, NBC News (Oct. 1, 2021),
https://nbcnews.to/3CeqmFD ................................................................................... 3
Vaccines Protect Your Community, U.S. Dep’t of Health & Hum. Servs.,
https://bit.ly/3nCZavx (last visited Oct. 20, 2021)................................................. 18
Matt Wood, Measles is still a very dangerous disease, UChicago
Medicine: The Forefront (Feb. 10, 2019), https://bit.ly/2Z3BXbx ......................... 19
Casey M. Zipfel et al., The landscape of childhood vaccine exemptions
in the United States, 7 Sci. Data 401 (2020),
https://go.nature.com/2XdYUYO ........................................................................... 14

vi
BRIEF OF RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS AND IN OPPOSITION TO
EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

INTERESTS OF THE AMICI CURIAE1

Amici are religious and civil-rights organizations that share a commitment to

preserving the constitutional principles of free religious exercise and the separation

of religion and government. They believe that the right to practice one’s faith is

precious, but that it was never intended to override protections for people’s safety and

health. Amici therefore oppose applicants’ contention that the First Amendment’s

Free Exercise Clause requires a religious exemption from Maine’s vaccination

mandate for healthcare workers.

The amici are:

 Americans United for Separation of Church and State.

 American Civil Liberties Union.

 American Civil Liberties Union of Maine.

 Disciples Center for Public Witness.

 Disciples Justice Action Network.

 Equal Partners in Faith.

 Global Justice Institute, Metropolitan Community Churches.

 Interfaith Alliance Foundation.

 Methodist Federation for Social Action.

1 No counsel for a party authored this brief in whole or in part, and no person other
than amici, their members, or their counsel made a monetary contribution to fund
the brief’s preparation or submission. This brief has been submitted with a motion
for leave to file it.

1
 National Council of the Churches of Christ in the USA.

 National Council of Jewish Women.

 Reconstructionist Rabbinical Association.

2
INTRODUCTION AND SUMMARY OF ARGUMENT

For more than a year and a half, healthcare workers have served on the front

lines of the Covid-19 pandemic, enduring grueling hours and making immense

sacrifices to save as many people as they can. To protect the health and lives of those

workers and the vulnerable patients they serve, Maine has enacted a regulation

requiring that healthcare personnel in the state be vaccinated against Covid-19.

Vaccination greatly reduces both the risk of being infected and the risk of

transmitting the disease to others.2 And it reduces more than tenfold the risk of dying

or being hospitalized from Covid-19.3

Applicants nevertheless challenge Maine’s vaccination mandate, principally

contending that the Free Exercise Clause entitles them to religious exemptions

because the mandate has a medical exemption. But this Court has long recognized

2 See, e.g., Lianna Matt McLernon, COVID vaccines very effective, hinder spread,

studies say, CIDRAP (Sept. 9, 2021), https://bit.ly/3nKKmuW; Akshay Syal,
Vaccinated people are less likely to spread Covid, new research finds, NBC News (Oct.
1, 2021), https://nbcnews.to/3CeqmFD; Link between COVID vaccination and reduced
household transmission, Swedish study finds, ScienceDaily (Oct. 11, 2021),
https://bit.ly/2Z6zihi; Darius Mostaghimi et al., Prevention of host-to-host
transmission by SARS-CoV-2 vaccines, The Lancet (Sept. 14, 2021),
https://bit.ly/3lBOL0E; Ashley Fowlkes et al., Effectiveness of COVID-19 Vaccines in
Preventing SARS-CoV-2 Infection Among Frontline Workers Before and During
B.1.617.2 (Delta) Variant Predominance — Eight U.S. Locations, December 2020–
August 2021, Ctrs. for Disease Control & Prevention (Aug. 27, 2021),
https://bit.ly/3zeKepC.
3 See, e.g., Deidre McPhillips, New CDC data shows the risk of dying from Covid-19

is 11 times higher for unvaccinated adults than for fully vaccinated adults, CNN (Oct.
15, 2021), https://cnn.it/3vwvQJ9; Monitoring Incidence of COVID-19 Cases,
Hospitalizations, and Deaths, by Vaccination Status — 13 U.S. Jurisdictions, April
4–July 17, 2021, Ctrs. for Disease Control & Prevention (Sept. 10, 2021),
https://bit.ly/2XjTGLE.

3
that the Free Exercise Clause does not mandate exemptions from nondiscriminatory

measures that protect public safety and health, such as vaccination requirements.

Maine’s vaccination mandate meets this standard: It applies to all healthcare

employees who can be vaccinated safely. And the mandate’s medical exemption

advances the governmental interest underlying the mandate—protecting people’s

health—while a religious exemption would not. Moreover, experience in both the

employment and the school contexts demonstrates that religious exemptions from

vaccination requirements are granted much more frequently than medical

exemptions and thus pose a far greater threat to state efforts to prevent disease

outbreaks.

Maine’s vaccination requirement is constitutional. The Court should deny the

application.

ARGUMENT

I. The Free Exercise Clause does not entitle people to religious exemptions
from a nondiscriminatory vaccination mandate.

Religious freedom is a value of the highest order. But as this Court recently

reaffirmed, the constitutional guarantee of religious liberty does not confer on

religious objectors “a general immunity from secular laws.” Our Lady of Guadalupe

Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020). This Court has thus repeatedly

recognized that the Free Exercise Clause does not create a general entitlement to

religious exemptions from vaccination laws.

As an initial matter, vaccine mandates are permissible under this Court’s

precedent. More than a century ago, in Jacobson v. Massachusetts, 197 U.S. 11, 25

4
(1905), the Court upheld a mandatory-vaccination law aimed at stopping the spread

of smallpox. Noting that “‘persons and property are subjected to all kinds of restraints

and burdens in order to secure the * * * health * * * of the state,’” the Court concluded

that “a community has the right to protect itself against an epidemic of disease which

threatens the safety of its members,” and that the vaccination law had not “invaded

any right secured by the Federal Constitution.” Id. at 26–27, 38 (quoting Hannibal &

St. Joseph R.R. Co. v. Husen, 95 U.S. 465, 471 (1877)) (emphasis added).

Subsequently, in Zucht v. King, 260 U.S. 174, 175–176 (1922), the Court relied on

Jacobson in rejecting a Fourteenth Amendment challenge to a San Antonio ordinance

that prohibited children from attending public or private schools without proof of

vaccination. The Court ruled that “the constitutional question presented” was not

“substantial in character.” Id. at 176.

Although neither Jacobson nor Zucht specifically considered a free-exercise

claim, the cases recognized a fundamental limitation on individual liberties: They

must not be used to harm others or threaten public health or safety. As the Court

explained in Jacobson, “[r]eal liberty for all could not exist under the operation of a

principle which recognizes the right of each individual person to use his own

[liberty] * * * regardless of the injury that may be done to others.” 197 U.S. at 26.

The Court has affirmed that general principle time and again, including with

reference to vaccination requirements. In Prince v. Massachusetts, 321 U.S. 158, 166–

167 (1944), the Court noted that one “cannot claim freedom from compulsory

vaccination * * * on religious grounds” because the “right to practice religion freely

5
does not include liberty to expose the community * * * to communicable disease.”

Citing Jacobson and Prince, the Court emphasized in Sherbert v. Verner, 374 U.S.

398, 402–403 (1963), that it “has rejected challenges under the Free Exercise Clause

to governmental regulation of certain overt acts prompted by religious beliefs or

principles” when “[t]he conduct or actions so regulated have invariably posed some

substantial threat to public safety, peace or order.”

In Wisconsin v. Yoder, 406 U.S. 205, 230 (1972), the Court again explained that

free-exercise claims may be denied when “harm to * * * physical or mental

health * * * or to the public safety, peace, order, or welfare has been demonstrated or

may be properly inferred.” In so doing, the Court specifically pointed (id. at 230 &

n.20) not just to Jacobson but also to Wright v. DeWitt School District No. 1, 385

S.W.2d 644 (Ark. 1965), a case expressly rejecting a free-exercise challenge to a

mandatory-vaccination law. And in Employment Division v. Smith, the Court

reaffirmed that the Free Exercise Clause does not “require[ ] religious exemptions

from * * * health and safety regulation[s] such as * * * compulsory vaccination laws.”

494 U.S. 872, 888–889 (1990) (citing Cude v. State, 377 S.W.2d 816 (Ark. 1964)). Many

federal and state appellate courts have followed suit, rejecting free-exercise

challenges to vaccination requirements.4

4 See Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015); Nikolao v. Lyon,
875 F.3d 310, 316 (6th Cir. 2017); Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x
348, 353–354 (4th Cir. 2011); F.F. v. State, 143 N.Y.S.3d 734, 741–742 (N.Y. App.
Div.), appeal dismissed for lack of a substantial constitutional question and motion
for leave to appeal denied, No. 2021-443, 2021 WL 4735375 (N.Y. Oct. 12, 2021); C.F.
v. N.Y.C. Dep’t of Health & Mental Hygiene, 139 N.Y.S.3d 273, 287–292 (N.Y. App.
Div. 2020); Brown v. Smith, 235 Cal. Rptr. 3d 218, 224–225 (Cal. Ct. App. 2018);
Davis v. State, 451 A.2d 107, 112 & n.8 (Md. 1982); Brown v. Stone, 378 So. 2d 218,
223 (Miss. 1979); Wright, 385 S.W.2d at 646–648; Cude, 377 S.W.2d at 819–820; Bd.

6
Under these precedents, Maine’s vaccination requirement for healthcare

workers does not violate the Free Exercise Clause. There is simply no general right

to a religious exemption from a public-safety law such as a vaccination mandate. And

because Maine’s vaccination requirement is neutral and generally applicable—it

applies equally to all healthcare workers who can safely be vaccinated, regardless of

whether they object to vaccination on religious or nonreligious grounds (see 10-144-

264 Me. Code R. (Aug. 12, 2021))—the requirement does not trigger heightened

scrutiny (see Smith, 494 U.S. at 878–879).

Applicants nevertheless argue (Application 18–19) that the vaccination

mandate is not neutral toward religion because, two years before adding the Covid-

19 vaccine to the list of immunizations required for healthcare workers, Maine

repealed previously existing religious and philosophical exemptions from its

vaccination rules (Applicants’ Appendix Ex. 5 at 9–10). But as then-Judge Gorsuch

wrote for the Tenth Circuit in Yellowbear v. Lampert, 741 F.3d 48, 58 (10th Cir. 2014),

“[s]urely the granting of a religious accommodation to some in the past doesn’t bind

the government to provide that accommodation to all in the future, especially if

experience teaches the accommodation brings with it genuine safety problems that

can’t be addressed at a reasonable price.” That was exactly the case here: Maine

removed its religious exemption because of decreases in vaccination rates that

of Educ. v. Maas, 152 A.2d 394, 405–408 (N.J. Super. Ct. App. Div. 1959), aff’d mem.,
158 A.2d 330 (N.J. 1960); State ex rel. Dunham v. Bd. of Educ., 96 N.E.2d 413, 413
(Ohio 1951); Mosier v. Barren Cnty. Bd. of Health, 215 S.W.2d 967, 969 (Ky. 1948);
Sadlock v. Bd. of Educ., 58 A.2d 218, 222 (N.J. 1948); City of New Braunfels v.
Waldschmidt, 207 S.W. 303, 305 (Tex. 1918).

7
increased the risk of disease outbreaks and endangered the public health.

(Applicants’ Appendix Ex. 3 at 22–23.) Moreover, a rule that the repeal of a religious

exemption triggers strict scrutiny would have a perverse effect by

“discouraging * * * officials from granting the accommodation in the first place.” See

Yellowbear, 741 F.3d at 58. And such a rule would make no logical sense: Why should

strict scrutiny arise from the repeal of a religious exemption when rational-basis

scrutiny would apply if there had never been a religious exemption in the first place?

Maine’s vaccination mandate is thus subject to rational-basis review at most.

See Smith, 494 U.S. at 882–889. It survives that review easily, because it is rationally

related to the state’s legitimate—indeed, compelling—interests in protecting

healthcare personnel and their patients from illness and death.

II. The vaccination mandate’s medical exemption does not render the lack
of a religious exemption unconstitutional.

A. The medical exemption does not trigger strict scrutiny.

Applicants argue (Application 19–24) that the inclusion of a medical exemption

in the vaccination mandate (Applicants’ Appendix Ex. 5 at 9–10) triggers strict

scrutiny and renders the regulation unconstitutional insofar as it lacks a religious

exemption. They rely heavily (Application 13–14, 19, 28, 37–38) on Dahl v. Board of

Trustees of Western Michigan University, __ F.4th __, No. 21-2945, 2021 WL 4618519

(6th Cir. Oct. 7, 2021)—which, to amici’s knowledge, is the only appellate opinion

that has sustained a free-exercise challenge to a vaccination requirement. There, the

Sixth Circuit concluded on a preliminary-injunction appeal that a university’s

vaccination mandate, which applied only to student-athletes, was likely subject to

8
strict scrutiny because it permitted individualized religious and medical exemptions

on a discretionary basis. Id. at *3–4. Dahl was based on this Court’s ruling in Fulton

v. City of Philadelphia that “[a] law is not generally applicable if it ‘invite[s]’ the

government to consider the particular reasons for a person’s conduct by providing ‘a

mechanism for individualized exemptions.’” 141 S. Ct. 1868, 1877 (2021) (second

alteration in original) (quoting Smith, 494 U.S. at 884).

But Fulton held only that individualized secular exemptions that are granted

at the sole discretion of governmental officials may result in strict scrutiny of a denial

of a religious exemption. See 141 S. Ct. at 1877–1879. This type of discretionary

mechanism raises particular free-exercise concerns because a state’s refusal under

such a system “to extend an exemption to an instance of religious hardship suggests

a discriminatory intent.” See Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality

opinion). Here, far from being dependent on discretionary decisions of state officials,

the medical exemption is objective and categorical—healthcare workers are

automatically entitled to it if they receive an appropriate certification from a medical

professional. See Me. Stat. tit. 22, § 802(4-B)(A).

Applicants also rely heavily (Application 18–19, 27, 36) on Tandon v. Newsom,

141 S. Ct. 1294, 1296 (2021), in which the Court stated that “government 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” and that “whether two activities are comparable

for purposes of the Free Exercise Clause must be judged against the asserted

9
government interest that justifies the regulation at issue.” Similarly, in Fulton, 141

S. Ct. at 1877, the Court noted that “[a] law * * * lacks general applicability if it

prohibits religious conduct while permitting secular conduct that undermines the

government’s asserted interests in a similar way.” But these cases do not require

strict scrutiny of Maine’s vaccination mandate, as illustrated by two Third Circuit

opinions by then-Judge Alito—Fraternal Order of Police Newark Lodge No. 12 v. City

of Newark, 170 F.3d 359 (3d Cir. 1999), and Blackhawk v. Pennsylvania, 381 F.3d

202 (3d Cir. 2004)—that apply the same rule and provide detailed guidance for

distinguishing nonreligious exemptions that undermine the governmental interests

at stake from those that do not.

In Fraternal Order, the court ruled that a police department’s refusal to grant

its officers a religious exemption from a prohibition on beards triggered heightened

scrutiny under the Free Exercise Clause, because the department had exempted

officers from that prohibition for medical reasons, and the medical exemption

undermined the governmental interest supporting the prohibition—“fostering a

uniform appearance”—just as much as a religious exemption would have. See 170

F.3d at 366. Similarly, in Blackhawk, the court concluded that a state’s denial of a

religious exemption from a fee requirement for keeping exotic wildlife was subject to

strict scrutiny because exemptions provided to zoos and circuses undermined the

state interests at issue—raising money and discouraging the keeping of wild animals

in captivity—to the same extent as a religious exemption would have. See 381 F.3d

at 211.

10
Justice Alito contrasted the facts of Fraternal Order and Blackhawk with the

denial in Smith of a religious exemption from a law banning possession of controlled

substances. He explained that strict scrutiny did not apply in Smith even though the

law contained an exemption for medical uses: “The purpose of drug laws is to protect

public health and welfare,” but “when a doctor prescribes a drug, the doctor

presumably does so to serve the patient’s health and in the belief that the overall

public welfare will be served.” Blackhawk, 381 F.3d at 211; accord Fraternal Ord.,

170 F.3d at 366. “Therefore, the prescription exception in Smith did not undermine

the purpose of the state’s drug laws.” Blackhawk, 381 F.3d at 211; accord Fraternal

Ord., 170 F.3d at 366. Likewise, Justice Alito noted that an exemption from the no-

beard policy in Fraternal Order for undercover officers did not “undermine the [police]

Department’s interest in uniformity because undercover officers ‘obviously are not

held out to the public as law enforcement person[nel].’” 170 F.3d at 366 (citing a

party’s brief; alterations in original); accord Blackhawk, 381 F.3d at 211. He

concluded that “[t]he prescription exception [in Smith] and the undercover exception

[in Fraternal Order] do not trigger heightened scrutiny because the Free Exercise

Clause does not require the government to apply its laws to activities that it does not

have an interest in preventing.” Fraternal Ord., 170 F.3d at 366.

Likewise, Maine’s medical exemption does not trigger strict scrutiny because

the state does not have an interest in forcing vaccinations on those who cannot safely

be vaccinated. As this Court explained in Jacobson, it “would be cruel and inhuman

in the last degree” to require vaccination of a person “if it be apparent or can be shown

11
with reasonable certainty that he is not at the time a fit subject of vaccination, or that

vaccination, by reason of his then condition, would seriously impair his health, or

probably cause his death.” 197 U.S. at 39.

Moreover, like the medical exemption in Smith and the undercover exemption

in Fraternal Order, Maine’s medical exemption advances the purpose of the

vaccination mandate—to protect the public health. When a doctor certifies that

vaccination is medically contraindicated for a particular healthcare worker (as

required to obtain the medical exemption, see Me. Stat. tit. 22, § 802(4-B)(A)), “the

doctor presumably does so to serve the patient’s health and in the belief that the

overall public welfare will be served” (Blackhawk, 381 F.3d at 211).

As recently explained by Professor Douglas Laycock, “medical exceptions don’t

undermine the government’s interest in saving lives, preventing serious illness or

preserving hospital capacity. By avoiding medical complications, those exceptions

actually serve the government’s interests.” Douglas Laycock, What’s the law on

vaccine exemptions? A religious liberty expert explains, Conversation (Sept. 15, 2021),

https://bit.ly/3lsSGg4. On the other hand, a religious exemption does not advance a

vaccination mandate’s purpose of protecting the public health and welfare in any way.

What is more, even if the medical exemption could be construed as

undermining the state interests at stake, it certainly does not do so “to at least the

same degree as the covered conduct that is religiously motivated” (Blackhawk, 381

F.3d at 209). That is because requests for religious exemptions from vaccination

requirements are far more common than requests for medical exemptions.

12
For instance, San Diego’s largest healthcare system recently reported that the

number of requests it received for religious exemptions from its Covid-19 vaccination

mandate for employees was seven times higher than the number of requests for

medical exemptions.5 A Kentucky hospital granted more than thirteen religious

exemptions for every medical exemption from its Covid-19 vaccination requirement. 6

A Minnesota healthcare provider approved approximately eight religious exemptions

for every medical exemption from its Covid-19 vaccination mandate. 7 Grants of

religious exemptions from a Connecticut health system’s Covid-19 vaccination

requirement outnumbered grants of medical exemptions by more than five to one. 8

At a Newark hospital, five percent of the staff obtained religious exemptions from

mandatory Covid-19 vaccination, while only 1.2 percent obtained medical

exemptions.9 And three quarters of the licensed healthcare workers in the District of

Columbia who have reported not being vaccinated against Covid-19 are requesting

religious exemptions.10

5 See Paul Sisson, Thousands of San Diego County healthcare workers seek vaccine
exemptions, citing religion, L.A. Times (Sept. 12, 2021), https://lat.ms/2XpkxWy.
6 See Beckerich v. St. Elizabeth Med. Ctr., __ F. Supp. 3d __, No. 2:21-cv-105, 2021
WL 4398027, at *4–5 (E.D. Ky. Sept. 24, 2021).
7 See Def. Univ. of Minn. Physicians’ Mem. Supp. Dismissal at 3, Roe 1 v. Allina
Health Sys., No. 0:21-cv-2127 (D. Minn. Oct. 8, 2021), ECF No. 73.
8 See Kasturi Pananjady & Jenna Carlesso, CT hospitals see spike in religious
exemptions for mandated COVID vaccines, CT Mirror (Oct. 1, 2021),
https://bit.ly/2ZQlp7n.
9 See Elizabeth Llorente, Will N.J. hospitals face a nursing shortage under vaccine
mandates? They already are., NJ.com (Sept. 20, 2021), https://bit.ly/3CtjDqI.
10 See Michael Brice-Saddler & Jasmine Hilton, Thousands of D.C. health care
workers remain unvaccinated amid flurry of religious exemption requests, Wash. Post
(Oct. 2, 2021), wapo.st/3mtJF7c.

13
Similar data has been reported outside the healthcare context. Approximately

3,000 employees of the Los Angeles police department—one quarter of the

department’s workforce—recently requested exemptions from a Covid-19 vaccination

requirement; and more than 2,600 of these requests were for religious exemptions,

while only about 360 were for medical ones.11 Washington State agencies received

3,891 employee requests for religious exemptions from Covid-19 vaccination,

compared to 829 requests for medical ones.12 The number of New York students who

claimed religious exemptions from vaccination requirements for schoolchildren

during the 2018–19 schoolyear (before the religious exemption from those

requirements was repealed) was nearly six times the number who claimed medical

exemptions.13 And other states have reported similar or greater disparities in the

school context.14

Thus, permitting a religious exemption poses a much greater threat to Maine’s

interest in preventing the spread of Covid-19 among healthcare workers and to

vulnerable patients than does allowing a medical exemption. In addition, that threat

is magnified by the tendency of religious objectors to cluster in particular

11 See Emily Alpert Reyes & Kevin Rector, Thousands of LAPD employees plan to seek
exemptions to COVID-19 vaccine mandate, L.A. Times (updated Sept. 14, 2021),
https://lat.ms/39cyGJ2.
12 See Joseph O’Sullivan, Washington state workers are getting exemptions to avoid
the COVID-19 vaccine — but will they keep their jobs?, Seattle Times (Sept. 18, 2021),
https://bit.ly/3AuHDt9.
13 See Merri Rosenberg, School districts can be fined for unvaccinated students, N.Y.
State Sch. Bds. Ass’n (Sept. 23, 2019), https://bit.ly/3lWzgCe.
14 See Casey M. Zipfel et al., The landscape of childhood vaccine exemptions in the
United States, 7 Sci. Data 401 (2020), at 5, https://go.nature.com/2XdYUYO.

14
communities.15 In such communities, requiring religious exemptions from Maine’s

vaccination mandate would pose an especially high risk of triggering Covid-19

outbreaks in healthcare settings. Indeed, in recent years, the clustering phenomenon

has led to outbreaks of dangerous diseases such as measles, mumps, and pertussis in

Maine and around the country—primarily among children, due to in-school

transmission.16

In sum, medical exemptions—but not religious exemptions—serve Maine’s

interest in protecting the health of people who cannot safely be vaccinated; Maine has

no real choice other than to allow medical exemptions; and religious exemptions pose

a much greater threat to the state’s efforts to prevent the spread of Covid-19. Hence,

the state is not “prohibit[ing] religious conduct while permitting secular conduct that

undermines the government’s asserted interests in a similar way” (Fulton, 141 S. Ct.

at 1877). The medical exemption therefore does not trigger strict scrutiny under the

Free Exercise Clause.

B. Even if the medical exemption triggered strict scrutiny, Maine’s
vaccination requirement would pass muster.

Even if strict scrutiny were to apply, Maine’s vaccination mandate would

satisfy the test. “A government policy can survive strict scrutiny only if it advances

15 See Thomas May & Ross D. Silverman, ‘Clustering of exemptions’ as a collective
action threat to herd immunity, 21 Vaccine 1048, 1050 (2003), https://bit.ly/2TJONcX.
16 See Applicants’ Appendix Ex. 5 at 22–23 (pertussis outbreaks in Maine); F.F. ex rel.
Y.F. v. State, 114 N.Y.S.3d 852, 863–864 (N.Y. Sup. Ct. 2019) (measles outbreaks in
New York), aff’d, 143 N.Y.S.3d 734 (N.Y. App. Div.), appeal dismissed for lack of a
substantial constitutional question and motion for leave to appeal denied, No. 2021-
443, 2021 WL 4735375 (N.Y. Oct. 12, 2021); Olivia Benecke & Sarah E. DeYoung,
Anti-Vaccine Decision-Making and Measles Resurgence in the United States, 6 Glob.
Pediatric Health 1, 1, 4 (2019), https://bit.ly/3pilaup (measles outbreaks in
Washington State and elsewhere in United States).

15
‘interests of the highest order’ and is narrowly tailored to achieve those interests.”

Fulton, 141 S. Ct. at 1881 (quoting Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 546 (1993)). Under strict scrutiny, secular exemptions may

prevent a law from passing muster if they signify that the government’s interest is

not truly compelling or demonstrate that the government’s means are not adequately

tailored. See, e.g., id. at 1881–1882; Tandon, 141 S. Ct. at 1296–1297. But secular

exemptions are not always fatal under strict scrutiny. Just as Justice Alito’s opinions

for the Third Circuit illuminate how to distinguish exemptions that trigger strict

scrutiny from those that do not, Justice Gorsuch’s Tenth Circuit opinion in

Yellowbear, 741 F.3d 48, illuminates how to distinguish nonreligious exemptions that

cause a law to fail strict scrutiny from those that do not.

In Yellowbear, Justice Gorsuch considered a prisoner’s claim under the

Religious Land Use and Institutionalized Persons Act, a statute that mandates strict

judicial scrutiny of governmental conduct that substantially burdens incarcerated

individuals’ religious exercise. See 741 F.3d at 56 (citing 42 U.S.C. § 2000cc-1(a)).

Justice Gorsuch recognized that “[a] law’s underinclusiveness—its failure to cover

significant tracts of conduct implicating the law’s animating and putatively

compelling interest—can raise with it the inference that the government’s claimed

interest isn’t actually so compelling after all.” Id. at 60.

But, Justice Gorsuch cautioned, “it is important to acknowledge that inferences

like these are not inevitable or irrebuttable.” Yellowbear, 741 F.3d at 61. “We know

that few statutes pursue a single purpose at any cost, without reference to competing

16
interests.” Id. “Given this, it would be odd if the mere fact that a law contains some

secular exceptions always sufficed to prove the government lacked a compelling

interest in avoiding another exception to accommodate a claimant’s religious

exercise.” Id. “If that were the case, the compelling interest test would seem nearly

impossible to satisfy.” Id.

Instead, Justice Gorsuch noted, “[a] government can rebut an argument from

underinclusion by showing that it hasn’t acted in a logically inconsistent way—by

(say) identifying a qualitative or quantitative difference between the particular

religious exemption requested and other secular exceptions already tolerated, and

then explaining how such differential treatment furthers some distinct compelling

governmental concern.” Yellowbear, 741 F.3d at 61. As an example, he cited a case

holding that the governmental interest “in preventing eagle deaths isn’t undermined

simply because the government has restricted intentional eagle killings more than

accidental ones,” for “surely the government has a compelling interest in not

subjecting citizens to laws they can’t realistically avoid breaking.” Id. (citing United

States v. Friday, 525 F.3d 938, 958–959 (10th Cir. 2008)).

Here, there is no question that the governmental interest served by Maine’s

vaccination mandate—preventing the spread of a deadly disease—is compelling. See,

e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). The medical

context renders it especially so, given the vulnerability of patients.

And Maine “hasn’t acted in a logically inconsistent way” (Yellowbear, 741 F.3d

at 61) in allowing medical exemptions but not religious exemptions. As explained

17
above, there is both “a qualitative” and a “quantitative difference between the

particular religious exemption requested and [the] secular exception[ ] already

tolerated.” Id. Qualitatively, a medical exemption, unlike a religious exemption,

advances public health by protecting those who cannot safely be vaccinated from the

physical harm that vaccination would inflict on them. Quantitatively, because

religious exemptions are claimed much more often than medical ones, allowing

religious exemptions poses a much greater threat to Maine’s efforts to protect staff

and patients at medical facilities.

Moreover, Maine’s “differential treatment” of medical and religious exemptions

“furthers [a] distinct compelling governmental concern” (Yellowbear, 741 F.3d at 61):

Permitting a medical exemption while disallowing a religious exemption advances

the state’s interest in protecting from harm those healthcare workers whose medical

conditions preclude them from being safely vaccinated. These particularly vulnerable

people include those who have allergic reactions to vaccine components. 17 Just as “the

government has a compelling interest in not subjecting citizens to laws they can’t

realistically avoid breaking” (Yellowbear, 741 F.3d at 61), so too does it have a

compelling interest in not attempting to vaccinate healthcare workers whose medical

conditions preclude immunization—as well as in safeguarding those vulnerable

people’s health by disallowing nonmedical exemptions that could cause colleagues to

infect them.

17 See, e.g., Vaccines Protect Your Community, U.S. Dep’t of Health & Hum. Servs.,
https://bit.ly/3nCZavx (last visited Oct. 20, 2021).

18
CONCLUSION

The right to freely exercise religion should never be misused to harm others.

But that is exactly what a decision requiring the religious exemptions sought by

applicants would do, putting their colleagues and the patients they serve at increased

risk of death or suffering from the most dangerous pandemic virus the world has

confronted in more than a century. And though this case concerns Covid-19 vaccines,

a ruling that requires religious exemptions in this context could jeopardize other

efforts to fight vaccine-preventable diseases—including diseases like measles that are

particularly dangerous to children.18 The application should be denied.

18 See Matt Wood, Measles is still a very dangerous disease, UChicago Medicine: The
Forefront (Feb. 10, 2019), https://bit.ly/2Z3BXbx.

19
Respectfully submitted.

Counsel for Amici Curiae

OCTOBER 2021

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