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No. 21A90

IN THE SUPREME COURT OF THE UNITED STATES

JANE DOES 1–6, JOHN DOES 1–3, JACK DOES 1–1000, JOAN DOES 1–1000,

Applicants,

JANET T. MILLS, in her official capacity as Governor of the State of Maine,
JEANNE M. LAMBREW, in her official capacity as Commissioner of the Maine
Department of Health and Human Services, NIRAV D. SHAH, in his official
capacity as Director for the Maine Center for Disease Control and Prevention,
MAINEHEALTH, GENESIS HEALTHCARE OF MAINE, LLC, GENESIS
HEALTHCARE, LLC, NORTHERN LIGHT HEALTH FOUNDATION,
MAINEGENERAL HEALTH,

Respondents.

To The Honorable Stephen G. Breyer,
Associate Justice of the United States Supreme Court
and Circuit Justice for the First Circuit

APPLICANTS’ REPLY IN SUPPORT OF WRIT OF INJUNCTION
PENDING DISPOSITION OF PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver (Counsel of Record)
Anita L. Staver
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
Liberty Counsel
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org

Counsel for Applicants
TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................... ii

INTRODUCTION .......................................................................................................... 1

ARGUMENT .................................................................................................................. 4

I. STATE DEFENDANTS’ INDIFFERNCE TO JOHN DOE 1’S FIRST
AMENDMENT CLAIMS DEMONSTRATES THEIR ESPECIALLY
HARSH AND DISCRIMINATORY TREATMENT OF HIS RELIGIOUS
EXERCISE. ......................................................................................................... 4

II. STATE DEFENDANTS’ PURPORTED RATIONALE FOR THE VACCINE
MANDATE DEMONSTRATES THAT IT SINGLES OUT RELIGIOUS
OBJECTORS FOR ESPECIALLY HARSH TREATMENT. ............................. 5

III. STATE DEFENDANTS HAVE IMPERMISSIBLY MADE A VALUE
JUDGMENT THAT RELIGIOUS OBJECTORS ARE NOT HARMED BY
HAVING THEIR SINCERELY HELD RELIGIOUS OBJECTIONS
IGNORED............................................................................................................ 7

IV. STATE DEFENDANTS FAIL TO CARRY THEIR BURDEN UNDER
STRICT SCRUTINY. .......................................................................................... 9

V. JACOBSON IS INAPPOSITE BECAUSE IT DID NOT INVOLVE A FIRST
AMENDMENT CHALLENGE, DID NOT INVOLVE A STATE’S
ATTEMPTING TO REVOKE PROTECTIONS OF FEDERAL LAW IN
VIOLATION OF THE SUPREMACY CLAUSE, AND WAS DECIDED
DECADES BEFORE STRICT SCRUTINY BECAME THE GOVERNING
STANDARD....................................................................................................... 10

VI. EMPLOYER DEFENDANTS ESSENTIALLY CONCEDE THAT STATE
DEFENDANTS’ COVID-19 VACCINE MANDATE REQUIRES A
VIOLATION OF TITLE VII. ............................................................................ 12

VII. TITLE VII PERMITS INJUNCTIVE RELIEF WHERE, AS HERE, POST-
JUDGMENT RELIEF PROVIDES AN INSUFFICIENT REMEDY. ............. 14

CONCLUSION............................................................................................................. 15

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TABLE OF AUTHORITIES

Cases

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) .............................................. 13

Ashcroft v. ACLU, 542 U.S. 656 (2004) ......................................................................... 9

Cantwell v. Connecticut, 310 U.S. 296 (1940) ............................................................. 10

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 534 (1993) ..................................................................................... 4,11

Dahl v. Bd. of Trustees of W. Mich. Univ., No. 21-2945,
2021 WL 4618519 (6th Cir. Oct. 7, 2021) ............................................................. 6,7

Dr. A v. Hochul, No. 1:21-CV-1009,
2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021) ............................................................ 6

EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir. 2009) ......................... 13

Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1 (1947) ........................................... 10

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359 (3d Cir. 1999) ...................................................................................... 8

Gitlow v. New York, 268 U.S. 652 (1925) .................................................................... 10

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) .................................................................................................. 9

Guardians Ass’n v. Civil Serv. Comm., 630 F.2d 79 (2d Cir. 1980) ........................... 13

Hobby Lobby Stores, Inc. v. Burwell, 573 U.S. 682 (2014) ........................................... 5

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ................................................ 10,11,12

Lynch v. Donnelly, 465 U.S. 668 (1984) ........................................................................ 4

McCullen v. Coakley, 573 U.S. 464 (2014) .................................................................... 9

Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) .......................................................................................... 5,8,11

Sheehan v. Purolator Courier Corp., 676 F.2d 877 (2d Cir. 1981) ............................. 14

Sherbert v. Verner, 374 U.S. 398 (1963) ...................................................................... 11

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South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) ................... 5

Sweezy v. New Hampshire, 354 U.S. 234 (1957).................................................... 10,11

Tandon v. Newsom, 141 S. Ct. 1294 (2021) ......................................................... 4,5,6,8

Thomas v. National Ass’n of Letter Carriers, 225 F.3d 1149 (10th Cir. 2000) .......... 13

United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ........................................ 10

Constitutional Provisions

U.S. Const. amend I ..............................................................................................passim

U.S. Const. Art. VI, cl. 2 (Supremacy Clause) ............................................................ 10

Statutes

42 U.S.C. § 2000e-2 ...................................................................................................... 12

42 U.S.C. § 2000e-7 ...................................................................................................... 12

Me. Rev. Stat. Title 22, § 802 ..................................................................................... 7,8

Religious Freedom Restoration Act (RFRA)
(42 U.S.C. §§ 2000bb to 2000bb-4) ........................................................................ 4,5

Title VII of the Civil Rights Act of 1964
(42 U.S.C. §§ 2000e to 2000e-17) ....................................................................passim

Other Authorities

EEOC, EEOC Issues Updated COVID-19 Technical Assistance (Oct. 25, 2021)......... 3

EEOC, What You Should Know About COVID-19 and the ADA, the
Rehabilitation Act, and Other EEO Laws ..................................................... 3,13,14

iii
INTRODUCTION

Maine’s categorical ban on any accommodations for religious healthcare

workers is an extreme outlier nationwide. Forty-seven other states have rejected this

approach for private healthcare facilities, and just two days ago, the EEOC issued

detailed guidance confirming that it directly violates federal law. Maine is also

extremely selective about which healthcare workers it will force to get vaccinated. At

the same time it axed its decades-old religious exemption, it kept an extremely broad

medical exemption; at the same time it foreclosed any accommodation for religious

healthcare workers in hospitals, it chose not to impose any mandate on healthcare

workers in urgent care centers or private physician’s offices. Maine’s selective

mandate is therefore the antithesis of a neutral, generally applicable law that

imposes only “incidental” burdens on religious objectors. And Maine cannot carry its

burden under strict scrutiny, because its selective mandate is too porous to justify

imposing such a stark and unnecessarily punitive departure from the approach of

virtually every other state.

The State Employers’ (Respondents’) opposition brief does not quarrel with the

underlying facts. Instead, it openly admits that Maine revoked the religious

exemption in order to increase vaccination rates. (State Opp’n 21 (revoking exemption

to “reverse the trend of falling vaccination rates”).) Worse, the brief openly admits

that Maine thinks religious objections are merely something a believer “chooses,”

while medical concerns—no matter how minor—render people “unable” to take the

vaccine. (Id.) As Maine sees it, religious people really “can” take the vaccine but just

“choose[]” not to, while medical objectors, for any reason no matter how small, are

1
“unable” and would be “actually harmed” if required to do so. (Id. at 21–22.) Maine

likewise assumes that all medical exemptions, no matter how trivial, must be

preserved to “ensur[e] healthcare workers remain healthy and able to provide care to

patients.” (Id. at 21.) But it ignores the consequences that religious healthcare

workers will no longer be “able to provide care to patients” when they are fired or

forced off-site. (Id.)

Maine insists this is not a “value judgment,” but of course it is. It is precisely

the value judgment in favor of secular motivations the Free Exercise Clause prohibits

and this Court has previously rejected in many other cases. And Maine has not come

close to carrying its heavy burden of justifying that value judgment in court. Since

Maine has found a way to accommodate all medical objections to the vaccine, it must

extend those accommodations to sincere religious objectors like Plaintiffs

(Applicants). It cannot be that only those with religious objections must be kicked out

of their livelihoods, while other unvaccinated employees are welcome to stay on-site.

And Maine’s patchwork mandate excludes many other healthcare locations entirely—

including urgent care centers and private physician offices—and Maine has not

justified its exclusion.1

Again, Maine is doing all of this in a way that makes it an extreme outlier

compared to the rest of the country. Almost every other state has found a way to

protect against the same virus without trampling religious liberty—including states

1 Maine’s response, that its mandate “applies equally to all covered entities” (State Opp’n 19) is
circular—of course the law applies to all entities the law applies to. The question is whether the law
applies generally, and why Maine excludes other healthcare settings entirely.

2
that have smaller populations and much greater territory than Maine. If Vermont,

New Hampshire, Alaska, the Dakotas, Montana, Wyoming, California, and the

District of Columbia can all find ways to both protect against COVID-19 and respect

individual liberty, Maine can too. And at least on this record, Maine certainly has not

shown why it needs a more draconian approach.

Lastly, on Monday the EEOC reaffirmed guidance that Title VII requires an

employer to “thoroughly consider all possible reasonable accommodations” for

religious objectors to COVID-19 vaccinations, and that “[i]n many circumstances, it

may be possible to accommodate those seeking reasonable accommodations for their

religious beliefs.” See EEOC, What You Should Know About COVID-19 and the ADA,

the Rehabilitation Act, and Other EEO Laws, at K.12, L.3,

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-

rehabilitation-act-and-other-eeo-laws (updated Oct. 25, 2021) (emphasis added). That

directly contradicts Maine’s complete ban on any religious accommodation for

healthcare workers in certain facilities. Indeed, as the EEOC Chair said in

announcing the technical guidance, “Title VII requires employers to accommodate

employees’ sincerely held religious beliefs . . . .” See EEOC, EEOC Issues Updated

COVID-19 Technical Assistance (Oct. 25, 2021), https://www.eeoc.gov/newsroom/eeoc-

issues-updated-covid-19-technical-assistance-0. The EEOC’s guidance thus confirms

that Maine’s approach—which bars employers from considering any accommodation

other than relegating the employee to remote work or termination—violates federal

law.

3
COVID has presented enormous challenges for everyone concerned with this

application—for healthcare workers, for government authorities, and for courts.

Plaintiffs do not ask the Court to fully resolve all those challenges at this preliminary

stage. But Plaintiffs respectfully ask this Court to preserve the status quo, because

Maine should not be permitted to enforce the Vaccine Mandate without first meeting

the heavy burdens the law rightfully imposes before allowing this kind of restriction

on religious exercise.

ARGUMENT

I. STATE DEFENDANTS’ INDIFFERNCE TO JOHN DOE 1’S FIRST
AMENDMENT CLAIMS DEMONSTRATES THEIR ESPECIALLY
HARSH AND DISCRIMINATORY TREATMENT OF HIS RELIGIOUS
EXERCISE.

State Defendants contend that John Doe 1’s First Amendment challenge is

meritless because the Religious Freedom Restoration Act (RFRA), 42 U.S.C.

§§ 2000bb to 2000bb-4, does not apply against the States. (State Opp’n 32.) As they

know, however, John Doe 1 did not raise a RFRA claim, but challenged the State’s

COVID-19 vaccine mandate on First Amendment grounds. (V. Compl. ¶¶ 122–139.)

The First Amendment “affirmatively mandates accommodation, not merely

tolerance, of all religions, and forbids hostility towards any.” Lynch v. Donnelly, 465

U.S. 668, 673 (1984). And “[t]he Free Exercise Clause protects against governmental

hostility which is masked, as well as overt.” Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 534 (1993).

In Tandon v. Newsom, this Court held that the government triggers strict

scrutiny under the First Amendment “whenever it treats any comparable activity

4
more favorably than religious exercise.” 141 S. Ct. 1294, 1296 (2021). Here, “the

regulations cannot be viewed as neutral because they single out [religion] for

especially harsh treatment.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.

Ct. 63, 66 (2020); see also South Bay United Pentecostal Church v. Newsom, 141 S.

Ct. 716, 717 (2021) (Gorsuch, J.) (“When a State so obviously targets religion for

differential treatment, our job becomes that much clearer.”). True enough, John Doe 1

referenced this Court’s RFRA decision in Hobby Lobby Stores, Inc. v. Burwell, 573

U.S. 682 (2014), but the RFRA analysis is functionally identical to the Free Exercise

strict scrutiny analysis applicable where—as here—the government singles out

religious practice for especially harsh treatment. Compare Tandon, 141 S. Ct. at 1296

(requiring application of First Amendment strict scrutiny for laws that single out

religious practice for discriminatory treatment), with Hobby Lobby, 573 U.S. at 726

(requiring RFRA’s strict scrutiny analysis). By permitting some, nonreligious

exemptions to the Vaccine Mandate while excluding religious exemptions, State

Defendants specifically burden Plaintiffs’ First Amendment rights and must satisfy

strict scrutiny, which they cannot do.

II. STATE DEFENDANTS’ PURPORTED RATIONALE FOR THE
VACCINE MANDATE DEMONSTRATES THAT IT SINGLES OUT
RELIGIOUS OBJECTORS FOR ESPECIALLY HARSH TREATMENT.

State Defendants contend that the Delta variant is simply too risky to permit

any religious exemption or accommodation from the Vaccine Mandate, despite the

availability of nonreligious exemptions. (State Opp’n 7–9, 29–30.) But, regardless of

State Defendants’ purported justifications for granting medical exemptions and

rejecting all religious exemptions, it is beyond cavil that those who are exempt for

5
medical reasons pose the exact same risks to patients and to potential “outbreaks” as

anyone exempted for religious reasons. The virus (whether the Delta variant, the

original strain, or some future unknown strain) does not know (or care about) the

reason why any individual remains unvaccinated. As this Court recognized in

Tandon, “comparability is concerned with risks various activities pose, not the

reasons for which they are undertaken.” 141 S. Ct. at 1297; see also Dr. A v. Hochul,

No. 1:21-CV-1009, 2021 WL 4734404, *8 (N.D.N.Y. Oct. 12, 2021) (“[A]s plaintiffs

point out, the medical exemption that remains in the current iteration of the State’s

vaccine mandate expressly accepts this ‘unacceptable’ risk for a non-zero segment of

healthcare workers.”).

The First Amendment prohibits State Defendants’ discriminatory acceptance

of the risk of patient contact with the medically unvaccinated while prohibiting the

same risk of contact with the religiously unvaccinated. As the Sixth Circuit reasoned

in Dahl v. Bd. of Trustees of W. Michigan Univ.,

the University falters on the narrow tailoring prong. For
one, public health measures are not narrowly tailored if
they allow similar conduct that creates a more serious
health risk. That is the case at the University, which allows
non-athletes—the vast majority of its students—to remain
unvaccinated. One need not be a public health expert to
recognize that the likelihood that a student-athlete
contracts COVID-19 from an unvaccinated non-athlete
with whom she lives, studies, works, exercises, socializes,
or dines may well meet or exceed that of the athlete
contracting the virus from a plaintiff who obtains a
religious exemption to participate in team activities. For
another, narrow tailoring is unlikely if the University's
conduct is more severe than that of other institutions. To
that point, several other universities grant exemptions
from their COVID-19 mandates.

6
No. 21-2945, 2021 WL 4618519, at *5 (6th Cir. Oct. 7, 2021) (cleaned up). Thus, given

the identical risks purportedly posed by the unvaccinated,

the University’s failure to grant religious exemptions to
plaintiffs burdened their free exercise rights. The
University put plaintiffs to the choice: get vaccinated or
stop fully participating in intercollegiate sports. . . . By
conditioning the privilege of playing sports on plaintiffs’
willingness to abandon their sincere religious beliefs, the
University burdened their free exercise rights.

Id. at *3.

III. STATE DEFENDANTS HAVE IMPERMISSIBLY MADE A VALUE
JUDGMENT THAT RELIGIOUS OBJECTORS ARE NOT HARMED BY
HAVING THEIR SINCERELY HELD RELIGIOUS OBJECTIONS
IGNORED.

State Defendants contend that they did not make a value judgment by

elevating medical exemptions over religious exemptions, but that allowing medical

exemptions advances the State’s health policy. (State Opp’n 24–26.) This is a patently

circular argument—it is the State’s discriminatory policy that Plaintiffs challenge.

To be sure, the State’s impermissible value judgment is evident in its proffered

justification for allowing medical exemptions: “Maine includes a medical exemption

to its vaccination requirements because there are certain circumstances when

vaccination may cause adverse health consequences, thereby actually harming that

individual.” (State Opp’n 21.) In other words, Maine thinks forcing vaccination that

may cause an adverse health consequence is actual harm, while forcing vaccination

that will violate religious conscience is not actual harm. And Maine’s vaccination

statute preserving medical exemptions after removing religious exemptions reflects

an even more severe value judgment—a medical exemption is allowed where forcing

7
vaccination “may” be merely “inadvisable.” Me. Rev. Stat. Title 22, § 802.4-B.A. The

removal of religious exemptions from the statute indicates Maine views forcing

vaccination against conscience to be less harmful than “may[be] inadvisable.”

Semantics aside, Maine’s value judgment is precisely the kind of non-neutral

value judgment that Justice (then Judge) Alito held to trigger strict scrutiny under

the First Amendment:

[T]he medical exemption raises concern because it
indicates that the Department has made a value judgment
that secular (i.e., medical) motivations for wearing a beard
are important enough to overcome its general interest in
uniformity but that religious motivations are not. As
discussed above, when the government makes a value
judgment in favor of secular motivations, but not religious
motivations, the government’s actions must survive
heightened scrutiny.

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366

(3d Cir. 1999). There is no question that forcing religious adherents to violate their

sincerely held beliefs inflicts spiritual harm, which under the First Amendment is

actual harm. As this Court has held time and again, Plaintiffs “are irreparably

harmed by the loss of free exercise rights for even minimal periods of time.” Tandon,

141 S. Ct. at 1297. Indeed, “[t]here can be no question that the challenged [mandate],

if enforced, will cause irreparable harm.” Roman Catholic Diocese, 141 S. Ct. at 67.

State Defendants’ non-neutral value judgment that medical harm is worse than

spiritual harm triggers (and fails) strict scrutiny under the First Amendment.

8
IV. STATE DEFENDANTS FAIL TO CARRY THEIR BURDEN UNDER
STRICT SCRUTINY.

The upshot of Maine’s proffered justification for enacting more restrictive

policies than 47 other states is that “[t]he size of Maine’s workforce is limited as

compared to other States.” (State Opp’n 31.) But Maine cannot simply say so. As

Plaintiffs explain in their Application, it is State Defendants’ burden to demonstrate

why COVID-19 justifies peculiarly restrictive policies in Maine. See Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006); Ashcroft v.

ACLU, 542 U.S. 656, 666 (2004). (Application 29–32.) And Maine must carry its

burden with proof—merely saying so is not enough. See McCullen v. Coakley, 573

U.S. 464, 496 (2014). Maine fails to carry its burden.

State Defendants provide no facts, figures, or other evidence to back up their

claim that Maine’s healthcare workforce is too small for any policy less restrictive

than universal vaccination with no religious accommodation. They do not explain

how, for example, Maine’s healthcare workforce and COVID-19 risks are different

from Vermont’s, New Hampshire’s, Alaska’s, or South Dakota’s—or any other

state’s—where COVID-19 is present but religious accommodations are still available.

With nothing more than unsubstantiated rationalizations, State Defendants fail

strict scrutiny.

9
V. JACOBSON IS INAPPOSITE BECAUSE IT DID NOT INVOLVE A
FIRST AMENDMENT CHALLENGE, DID NOT INVOLVE A STATE’S
ATTEMPTING TO REVOKE PROTECTIONS OF FEDERAL LAW IN
VIOLATION OF THE SUPREMACY CLAUSE, AND WAS DECIDED
DECADES BEFORE STRICT SCRUTINY BECAME THE GOVERNING
STANDARD.

State Defendants also contend that Jacobson v. Massachusetts, 197 U.S. 11

(1905), provides broad latitude for the State to mandate vaccination. (State Opp’n 26,

36.) But Plaintiffs here do not challenge vaccine mandates in general or even the

Governor’s authority to issue them. This case is about whether—when a mandate has

been issued—the government must still follow federal protections for sincerely held

religious beliefs. Jacobson has nothing to say on this issue.

Indeed, Jacobson has questionable value in any modern case. It can hardly be

argued that a 1905 case with minimal progeny and a century of substantial

jurisprudential developments since its holding remains the lodestar for current times.

Moreover, Jacobson did not involve a First Amendment challenge, which in 2021

requires a specific analysis. Jacobson was decided twenty years before the First

Amendment even applied to the States, and decades before the Supreme Court

developed the current tiers of scrutiny in constitutional analysis. See Gitlow v. New

York, 268 U.S. 652, 666 (1925) (holding, under doctrine of incorporation, that Free

Speech Clause applicable as against the States); United States v. Carolene Prods. Co.,

304 U.S. 144, 153 n.4 (1938) (applying “exacting judicial scrutiny” in First

Amendment case); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating

Free Exercise Clause); Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1, 16 (1947)

(incorporating Establishment Clause); Sweezy v. New Hampshire, 354 U.S. 234, 65

10
(1957) (Frankfurter, J., concurring) (considering “compelling interest”); Sherbert v.

Verner, 374 U.S. 398 (1963) (applying strict scrutiny).

Thus, this Court squarely rejected Jacobson as a justification for the

government’s deprivation of constitutional rights during this pandemic. As Justice

Gorsuch pointed out in Roman Catholic Diocese, “Jacobson hardly supports cutting

the Constitution loose during a pandemic. That decision involved an entirely different

mode of analysis [and] an entirely different right.” 141 S. Ct. at 70 (Gorsuch, J.,

concurring). To be sure,

Jacobson didn’t seek to depart from normal legal rules
during a pandemic, and it supplies no precedent for doing
so. Instead, Jacobson applied what would become the
traditional legal test associated with the right at issue—
exactly what the Court does today. Here, that means strict
scrutiny: The First Amendment traditionally requires a
State to treat religious exercises at least as well as
comparable secular activities unless it can meet the
demands of strict scrutiny—showing it has employed the
most narrowly tailored means available to satisfy a
compelling state interest.

Id. Furthermore, “[e]ven if judges may impose emergency restrictions on rights that

some have found hiding in the Constitution’s penumbras, it does not follow that the

same fate should befall the textually explicit right to religious exercise.” Id. at 70–71.

The Governor’s Vaccine Mandate purports to repeal the First Amendment’s

and Title VII’s textual protections of religious liberty for healthcare workers in Maine,

and then “regulates [and] prohibits conduct because it is undertaken for religious

reasons,” Lukumi, 508 U.S. at 532, while exempting the same conduct undertaken

11
for nonreligious reasons. Jacobson does not protect Maine’s discriminatory mandate

from strict scrutiny under the First Amendment, which it cannot pass.

VI. EMPLOYER DEFENDANTS ESSENTIALLY CONCEDE THAT STATE
DEFENDANTS’ COVID-19 VACCINE MANDATE REQUIRES A
VIOLATION OF TITLE VII.

Employer Defendants (Respondents) contend they cannot provide reasonable

accommodations to Plaintiffs because doing so would cause them to violate State

law—i.e., the Governor’s COVID-19 Vaccine Mandate. (Provider Opp’n 7.) This

contention admits that the State’s mandate is inconsistent with and thus preempted

by the plain language of Title VII:

Nothing in this subchapter shall be deemed to exempt or
relieve any person from any liability, duty, penalty, or
punishment provided by any present or future law of any
State or political subdivision of a State, other than any
such law which purports to require or permit the doing of
any act which would be an unlawful employment practice
under this subchapter.

42 U.S.C. § 2000e-7. Thus, because Maine’s revocation of religious exemptions

through rulemaking and the Governor’s Vaccine Mandate “purport[] to require . . .

unlawful employment practice” by abolishing the religious accommodation procedure

provided in Title VII, see 42 U.S.C. §2000e-2(a), the vaccine mandate is superseded

and preempted by Title VII.

First, Employer Defendants can find no refuge in the argument that doing

what Title VII requires would be an undue hardship because it would cause a

violation of state law. A simple hypothetical demonstrates the absurdity of the

argument: Suppose Maine passed a law (or the Governor issued an Executive Order)

stating, “Maine no longer permits Christians and Muslims to engage in any

12
healthcare profession.” Title VII would still prohibit Employer Defendants from

discriminating against Christians and Muslims in hiring and firing, even if

sanctioned by the state law. But this is precisely the kind of religious discrimination

Employer Defendants defend, albeit on narrower terms: “Maine no longer permits

Christians and Muslims [with religious objections to abortion-connected vaccines] to

engage in any healthcare profession at covered facilities.” Title VII plainly prohibits

any such religious discrimination, and a state’s patently unconstitutional policy

mandating violation of Title VII does not exempt a private employer from Title VII’s

requirements. See, e.g., Guardians Ass’n v. Civil Serv. Comm., 630 F.2d 79, 104–105

(2d Cir. 1980) (“Nor can the City justify the use of rank-ordering by reliance on what

it contends are requirements of state law. Title VII explicitly relieves employers from

any duty to observe a state hiring provision which purports to require or permit any

discriminatory employment practice.” (emphasis added) (cleaned up)).

Second, the Vaccine Mandate necessarily abolishes the entire “interactive

process” of “bilateral cooperation” and “meaningful dialogue” required by Title VII

between employers and employees seeking religious accommodation. Thomas 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). As illuminated by the EEOC’s guidance—updated

this week—“the employer should ordinarily assume that an employee’s request for

religious accommodation is based on a sincerely held religious belief,” and “should

thoroughly consider all possible reasonable accommodations.” EEOC, What You

13
Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO

Laws, at K.12, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-

and-ada-rehabilitation-act-and-other-eeo-laws (updated Oct. 25, 2021). Reasonable

accommodations suggested by the EEOC include masking, distancing, modifying

shifts, and periodic testing. Id. at K.2. The process also requires an employer “to

assess undue hardship by considering the particular facts of each situation and . . .

demonstrate how much cost or disruption the employee’s proposed accommodation

would involve,” without “rely[ing] on speculative hardships . . . but, rather . . . on

objective information.” Id. at L.3. The Governor’s Vaccine Mandate purports to

prohibit the entire process for all religious objectors, precluding any individualized

determinations—even for employers that want to provide accommodations. This

irresolvable conflict forecloses any argument that the Governor’s mandate can coexist

with Title VII.

VII. TITLE VII PERMITS INJUNCTIVE RELIEF WHERE, AS HERE, POST-
JUDGMENT RELIEF PROVIDES AN INSUFFICIENT REMEDY.

Employer Defendants also contend that post-judgment relief is a sufficient

remedy for their decision to terminate all Plaintiffs this coming Friday (in two days).

(Provider Opp’n 8–9.) Sometimes, however, post-judgment relief is inadequate even

in the Title VII context. Sheehan v. Purolator Courier Corp., 676 F.2d 877, 884 (2d

Cir. 1981). Specifically, “the effect on the complainant of several months without work

or working in humiliating or otherwise intolerable circumstances will constitute

harm that cannot adequately be remedied by a later award of damages.” Id. Here,

Employer Defendants, working in tandem with State Defendants, are not only saying

14
that Plaintiffs will be fired from their current jobs, but they are also telling them that

their sincerely held religious objections preclude them from working at large swaths

of “covered facilities” in the medical field. This is not a typical employment-related

dispute where a fired doctor or nurse can walk across the street to a different hospital

and find gainful employment while awaiting distant vindication of her rights. The

immediate and irreparable injury to Plaintiffs is the deprivation of any employment

in any covered medical facility in the State of Maine. In effect, Defendants have

informed Plaintiffs that those with religious objections to COVID-19 vaccines based

on sincerely held beliefs are no longer welcome in Maine’s healthcare system. Such

overt religious exclusion is prohibited by the First Amendment and Title VII, and

imposes irreparable harm worthy of preliminary injunctive relief.

CONCLUSION

For the foregoing reasons, and those in the Application, the Court should issue

a writ of injunction pending disposition of Plaintiffs’ forthcoming petition for writ of

certiorari.

Respectfully submitted: /s Roger K. Gannam
Mathew D. Staver, Counsel of Record
Anita L. Staver
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, Florida 32854
(407) 875-1776
court@LC.org | hmihet@LC.org
rgannam@LC.org | dschmid@LC.org

Counsel for Applicants

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Our copy: 21A90_016_Oct_27_2021_Reply_20211027075415906_Reply_-_Support_Injunction_Pending_Cert_Petition.pdf
Original: www.supremecourt.gov