Well, the opinion is a complete mess, and might not best be read as a constitutional decision at all. It does, however, suggest a lurking interesting question about religious accommodations and vaccinations, albeit one not raised by this case.
This is an unemployment compensation case involving a private employer. For the most part, the opinion appears to be a straightforward APA-like arbitrary and capricious decision, not implicating any constitutional decision. The rationale is that the religious accommodation undermined the employer's stated health objective for imposing the vaccination requirement, and therefore there was no good reason for insisting upon the vaccination (and thus no legal grounds for firing the plaintiff, thereby entitling her to unemployment compensation). The opinion ends with this holding: The record is uncontroverted that the employer did not produce evidence showing appellant's refusal to comply with its flu vaccination policy for purely secular reasons adversely impacted the hospital or otherwise undermined appellant's ability to perform her job as a nurse. Now, this is, of course, nuts. I think it might be a function of the fact that the employer did not appear in the case--only the state board of unemployment compensation did. But if, in the underlying unemployment compensation proceedings, the hospital couldn't come up with any evidence of adverse impact of the nurse's refusal to be immunized, it needs to hire better lawyers (or administrators). To be sure, the religious exemption *does *undermine the efficacy of the vaccination requirement somewhat. But presumably it doesn't blow it to smithereens, or render it futile -- the patients are still *more likely* not to contract the flu if most (even if not all) employees are vaccinated. In the midst of all this misbegotten Ad Law stuff, however, the court interjects two constitutional bits: The first is an unadorned sentence suggesting a free speech violation *by the unemployment compensation board. *(The hospital, recall, is a private employer.) The refusal of the board to give benefits to the secular objector, writes the court, "unconstitutionally violated appellant's freedom of expression by endorsing the employer's religion-based exemption to its flu vaccination policy." There's no analysis here, and this is, of course, even less coherent or justifiable than the arbitrary and capricious holding. Then there's the penultimate paragraph, just before the arbitrary and capricious one quoted above. It sounds in the Establishment Clause: Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores." Marsa v. Wernik, 86 N.J. 232, 245 (1981) (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216, 83 S. Ct. 1560, 1568, 10 L. Ed. 2d 844, 855 (1963)). Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment. This, too, is a mess, for a host of reasons: The hospital's vaccination requirement is not "religion-based." The Board did not prefer religion over non-religion -- it would have also denied benefits to a religiously motivated employee who was fired by an employer for not being immunized. The only authority cited has nothing to do with this sort of case-- *Marsa* was actually a *Town of Greece* precursor that allowed a borough council member to make a pre-meeting invocation! And *Schempp*, of course, involved the state's own religious expression. Etc. So I'd suggest we ignore this decision itself--nothing good can come of it. But here's the interesting lurking question: Assume that a *state* actor, such as a legislature or a state employer, granted a religious-only exemption to a vaccination requirement. This actually happens quite frequently under state laws. In my view this is an Establishment Clause violation, because of the harm to third parties. The interesting question is who can sue to complain about it. A member of the public or a student at school who may be exposed to unimmunized religious objectors? (Probably standing problems, at least in federal court.) What about a secular objector who complains that the state cannot discriminate against her non-religious reasons for wanting the exemption -- a *Texas Monthly*-like case, in other words, but without the Free Speech/Free Press overlay? The irony in such a case is that extending the exemption to secular objectors eliminates the Establishment Clause problem -- that's why some legislatures have done it! -- while at the same time further further undermining the underlying health reason for the vaccination requirement. Should the secular objector be able to prevail in that case, relying principally on the harm to third parties that makes the religious exemption unconstitutional . . . even though that harm that will be exacerbated if the exemption if the plaintiff wins and the exemption is extended beyond religion? On Fri, Jun 6, 2014 at 11:50 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Any thoughts on this New Jersey case? (Note that the > court’s rationale focused not on the Establishment Clause as such, but > rather on the conclusion that “The Board's decision upholding appellant's > termination unconstitutionally discriminated against appellant's freedom of > expression by improperly endorsing the employer's religion-based exemption > to the flu vaccination policy and rejecting the secular choice proffered by > appellant.”) > > > > Eugene > > > > *Feed:* Religion Clause > *Posted on:* Friday, June 06, 2014 4:05 AM > *Author:* Howard Friedman > *Subject:* Religious Exemption From Vaccination Policy Requires > Acceptance of Secular Reasons As Well > > > > In *Valent v. Board of Review, Department of Labor > <http://www.judiciary.state.nj.us/opinions/a4980-11.pdf>,* (NJ App., June > 5, 2014), the New Jersey Superior Court Appellate Division held that a > nurse employed by a hospital was entitled to unemployment compensation > after she was fired for refusing to obtain a flu vaccination as required by > the hospital's policy. The hospital policy allowed exemptions for > religious or medical reasons, however here the nurse's objections were > based on secular non-medical concerns. The court wrote in part: > > By exempting employees who can produce religion-based documentation, the > employer's flu vaccination policy is clearly not exclusively driven by > health-related concerns. The Board cannot therefore accept the policy as a > proper basis to find appellant committed an act of insubordination of > sufficient magnitude to render her disqualified for unemployment > compensation benefits under N.J.S.A. 43:21-5(b).... > > The religion exemption merely discriminates against an employee's right to > refuse to be vaccinated based only on purely secular reasons. Our Supreme > Court has clearly cautioned that "[g]overnment may not, under the First > Amendment, prefer one religion over another or religion over non-religion > but must remain neutral on both scores.".... Under these circumstances, by > denying appellant's application to receive unemployment benefits based only > on her unwillingness to submit to the employer's religion-based policy, the > Board violated appellant's rights under the First Amendment. > > AP reports > <http://www.app.com/story/news/crime/jersey-mayhem/2014/06/05/nj-court-rules-nurse-vaccine-refusal-firing/10040445/> > on the decision. > > > View article... > <http://religionclause.blogspot.com/2014/06/religious-exemption-from-vaccination.html> > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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