Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
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
Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
Marty's comment below suggests that Employment Division v. Smith sets the right standard. Consider this paragraph of Marty;s: 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? One should be free to practice one's religion as long as that practice does not have a reasonable negative impact on others. Preventing people from being a nurse for failure to meet the job requirements does not prevent them from practicing their religion. Just as the first amendment reflects a value of free speech that many of us would like private folks to follow, so the legal implementation of the freedom of religion clauses sets a value that people in their private capacity should follow. Freedom of religion should not authorize people to impact my freedom, health or safety in a substantial way. If a vaccination is determined to be necessary as a substantial requirement for employment, then all employees should be vaccinated or, at least, those employees whose vaccinations fall within the reason for the requirement and I do not see how religious views should afford an exemption. If the requirement only concerns the safety of the individual employee, that is a different case. Jon On 2014-06-07 07:37, Marty Lederman wrote: 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 employers 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 appellants refusal to comply with its flu vaccination policy for purely secular reasons adversely impacted the hospital or otherwise undermined appellants 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 couldnt come up with any evidence of adverse impact of the nurses 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 doesnt 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 appellants freedom of expression by endorsing the employers religion-based exemption to its flu vaccination policy. Theres no analysis here, and this is, of course, even less coherent or
Hobby Lobby/Ellen Katz
Ellen Katz has an interesting article regarding the use of precedent by the Roberts Court with a view to what it might do in Hobby Lobby. It is an informative read and a good background for speculating on what the result might be in that case. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437958 It does provoke me to make a few comments. 1. I really do not think Citizens United needs to be read as protecting individual rights of corporations. Rather, and I think Scalia said something to this effect, corporations are a way in which people carry on activities and the question becomes whether the people are protected by the first amendment in what they are doing. In Citizens United the corporation was an advocacy corporation. The Supreme Court did consider whether to treat advocacy corporations as protected and distinguish them from for-profit corporations. The Court concluded that such a distinction would be too vague to make free speech rights dependent on it. But we do have a form of church corporation which arguably might be treated differently for religious exemptions (I would not do so because I agree with Marci), but that would mean that a for-profit corporation would not enjoy freedom of religion. 2. In fact the overwhelming majority of corporations in this country do not have sufficient resources to exercise undue influence tending to corruption in the public debate. Many corporations are public interest groups. So the use of corporation in the statute was hopelessly over-broad, a no-no in first amendment law. 3. At one time I taught Legal Process and explained the different ways of dealing with precedent. Besides overruling cases courts could limit them to their facts, or re-characterize them, perhaps by pointing out facts that were present in case but not used by the prior court as material facts. When it comes to the Supreme Court, their freedom to refine prior holdings is, and should be, greater than lower courts and it should not surprise lawyers if they do so. Furthermore, regarding using older cases, it is not illegitimate, in my opinion, to focus on an older line of cases where a single more recent decision departed from the older line of cases. 4. Hobby Lobby represents to me an important test in how politically motivated the Court is becoming. In Boerne the Court held that in enforcing the fourteenth amendment, the Congress had to stick to the Supreme Court's interpretation of the constitution. In Employment Division v. Smith, Scalia interpreted the constitution for the Court and Congress tried to impose its own interpretation. If Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case, I would be concerned. Of course I am sure one could write a persuasive argument that Congress has full authority over statutes it enacts and Scalia could defer to the statute. Jon P.S. Thanks to the Con Law Professor Blog for noting Ellen Katz's article. ___ 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.
RE: Hobby Lobby/Ellen Katz
Jon Mallamud writes: 4. Hobby Lobby represents to me an important test in how politically motivated the Court is becoming. In Boerne the Court held that in enforcing the fourteenth amendment, the Congress had to stick to the Supreme Court's interpretation of the constitution. In Employment Division v. Smith, Scalia interpreted the constitution for the Court and Congress tried to impose its own interpretation. If Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case, I would be concerned. Of course I am sure one could write a persuasive argument that Congress has full authority over statutes it enacts and Scalia could defer to the statute. I'm not sure why we should be concerned [i]f Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case. Congress has the power to carve out exemptions from federal laws (even if lacks such power to carve out exemptions from state laws, see Boerne). Smith simply holds that the Free Exercise Clause doesn't provide such exemptions - it doesn't preclude statutory exemptions, no? By the way, if we should be concerned by Scalia's possible pro-Hobby-Lobby vote, I take it we should be equally concerned by Stevens' votes in Smith, Boerne, and O Centro, as well as by Ginsburg's votes in Boerne and O Centro (since her vote in Boerne suggests that she would have voted with the majority in Smith), no? Eugene ___ 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.
RE: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
I agree entirely on the bottom line, but let me ask what would happen in the absence of concerns about harm to the sick. Say an employer has a uniform policy that bars headgear, but exempts religious objectors; and say that a secular employee insists on wearing a hat to work, and is fired for it. Should the employee be seen as constitutionally entitled to unemployment compensation, on a rationale similar to that given by the New Jersey appellate court? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, June 06, 2014 9:00 PM To: Law Religion issues for Law Academics Subject: RE: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well OK, I’ll bite; Religious exemptions, at the end of the day, honor beliefs that secularists by definition must regard as “irrational,” i.e., incapable of being defended by reference to “standard-model” scientific argument. There may be good reasons for allowing such exemption in the name of preserving civil peace, etc., or it may simply boil down to the presence of the Free Exercise Clause and the collapse of the belief/conduct distinction. But it is hard to think of “secular” reasons for a nurse to refuse to get a flu vaccination, given the risk not only to herself—which raises obvious questions about paternalism—but also potential risks to her patients should she in fact come down with the flu and infect others in the hospital, who are by definition more vulnerable than ordinary persons with whom she might also come into contact. So, unless there really is some good reason to refuse flu vaccines—perhaps she is unusually sensitive to egg-based vaccines or something similar—I am disinclined to be at all sympathetic to her argument and would regard her firing as fully for cause. I think the “freedom of expression” argument in this case is wacky given her job and responsibility for doing no harm to the sick. Were I to receive this as an answer to a final exam question, I would be inclined to give it a very bad grade. I leave it to my colleagues on this list, including Eugene, to tell me if (and why) I am off-base in my response. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 06, 2014 10:50 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu) Subject: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well 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 Laborhttp://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
Re: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
I would always want to know the rationale and why it didn't apply to the religious person as well. But if ever I'm disinclined to be sympathetic to the flat out equal treatment, it's in this instance, and I continue to wonder why there's a religious exemption. I presume that a religious person wouldn't be allowed to smoke on premises even if she belonged to a religious sect that commanded chain smoking. I see no difference with regard to the flu shot. But, by stipulation, if the rule had nothing to do with patients' health, then I'd be inclined to treat secular and religious alike. Sandy Sandy Sent from my iPhone On Jun 7, 2014, at 9:02 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I agree entirely on the bottom line, but let me ask what would happen in the absence of concerns about harm to the sick. Say an employer has a uniform policy that bars headgear, but exempts religious objectors; and say that a secular employee insists on wearing a hat to work, and is fired for it. Should the employee be seen as constitutionally entitled to unemployment compensation, on a rationale similar to that given by the New Jersey appellate court? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, June 06, 2014 9:00 PM To: Law Religion issues for Law Academics Subject: RE: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well OK, I’ll bite; Religious exemptions, at the end of the day, honor beliefs that secularists by definition must regard as “irrational,” i.e., incapable of being defended by reference to “standard-model” scientific argument. There may be good reasons for allowing such exemption in the name of preserving civil peace, etc., or it may simply boil down to the presence of the Free Exercise Clause and the collapse of the belief/conduct distinction. But it is hard to think of “secular” reasons for a nurse to refuse to get a flu vaccination, given the risk not only to herself—which raises obvious questions about paternalism—but also potential risks to her patients should she in fact come down with the flu and infect others in the hospital, who are by definition more vulnerable than ordinary persons with whom she might also come into contact. So, unless there really is some good reason to refuse flu vaccines—perhaps she is unusually sensitive to egg-based vaccines or something similar—I am disinclined to be at all sympathetic to her argument and would regard her firing as fully for cause. I think the “freedom of expression” argument in this case is wacky given her job and responsibility for doing no harm to the sick. Were I to receive this as an answer to a final exam question, I would be inclined to give it a very bad grade. I leave it to my colleagues on this list, including Eugene, to tell me if (and why) I am off-base in my response. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 06, 2014 10:50 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu) Subject: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well 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 Laborhttp://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
