An explosion of litigation seeking to strike down COVID-19 shot mandates is a reaction to increasing animus toward Christians whose objections are based on constitutionally protected religious beliefs — with key cases winding their way through federal court representing, civil rights attorneys say, possibly the last line of defense against government tyranny.
COVID shot mandates are being enacted at the federal, state, and local government levels, at hospitals, universities, secondary schools, businesses, restaurants and even in parts of the Catholic Church. The coercive policies have sparked a flood of lawsuits in state and federal courts, many claiming protected rights of conscience are being trampled underfoot by over-reaching bureaucrats.
“It is just an extraordinary moment in our nation’s history. Unprecedented,” said Stephen M. Crampton, senior counsel with the Thomas More Society, a Chicago-based public interest and civil rights law firm. “From my perspective at least, all of our freedoms are on the line now.”
A federal judge in Utica, New York granted a Thomas More Society request for a temporary restraining order (TRO) against the State of New York and its mandate that all health care workers receive a COVID shot, with proof of full vaccination due between Sept. 27 and Oct. 7. On Sept. 21, U.S. District Judge David N. Hurd extended the original TRO he issued Sept. 14; it is now in effect until Oct. 12. Judge Hurd cancelled oral arguments in the case and said he will rule on a preliminary injunction by Oct. 12, based on legal filings from both sides.
New York originally allowed health care workers to file for a religious exemption to the shot mandate, but then withdrew that policy in favor of one with only medical exemptions. Judge Hurd’s order forbids the state from interfering with the granting of religious exemptions while the TRO is in effect. Despite the injunction, concern among New York health care workers is high, with some still being told they will be fired for refusing to take the shot.
“We have this temporary injunction, TRO, in the state of New York, and yet our phones are ringing off the hook with health care workers who are nevertheless—in spite of the injunction —being told, ‘You get the vaccine or you’re out the door,’” Crampton said. “There is a disregard for the rule of law, for our constitutional fundamental rights, disregarding science, disregarding reason, logic all across the board here. It’s just never been seen before.”
Spate of suits across the U.S.
Federal and state lawsuits are underway in at least 11 states from Oregon to Florida, challenging policies that require employees, students and others to get anti-COVID shots — often despite their religious objections. That’s on top of the 24 states’ attorneys general threatening to sue the Biden Administration over the president’s plan to force health care workers and employers with 100 or more employees to require COVID vaccines.
Many plaintiffs expressed opposition to the shots, which to one degree or another used cells derived from aborted children in their research, development, or production. Others say they should get medical exemptions for natural immunity after surviving COVID and developing their own antibodies. There is also growing anxiety expressed in the legal filings about the safety and efficacy of the shots, despite the federal government’s insistence they are “safe and effective.”
A group of Los Angeles Police Department employees filed a federal lawsuit Sept. 11 against the City of Los Angeles, saying a city ordinance that makes a COVID vaccine a condition of city employment violates the Fourth and Fourteenth amendments to the U.S. Constitution, the California Constitution, the federal Supremacy Clause and Title VII of the Civil Rights Act of 1964. The suit says despite the stated availability of religious exemptions to the mandate in one part of the ordinance, another section makes the vaccine a prerequisite for promotions and transfers, with no religious or medical exemption.
The Pacific Justice Institute, which represents the Los Angeles police employees, said the city never provided a means to submit requests for exemptions before the Sept. 7 deadline to show proof of vaccination. The city set up a portal for applications on Friday, Sept. 10 and closed it down after 72 hours. Since making requests for medical or religious exemptions, employees have “endured an onslaught of hostile demands, threats of being terminated, and accusations from commanding officers,”the lawsuit reads, “such as statements that they lack ‘sympathy and caring’ for COVID-19 issues and that they are ‘unfit to wear the uniform.’”
A police captain, acting as the chief duty officer, appeared at a roll call and advised those present that the “city is willing to let go of the roughly 3,000 officers not vaccinated,” the lawsuit said. Brad Dacus, president of the Pacific Justice Institute, said his clients were “shamed and cheated” out of their constitutionally protected rights. “We have asked the court to require the city to respect and immediately accommodate employees who have sincerely held religious beliefs,” Dacus said in a statement.
A group of 2,009 health care workers in Maine, represented by Liberty Counsel, filed a federal lawsuit against Maine Gov. Janet T. Mills and two state health officials. The plaintiffs make similar arguments to those in the New York case, chiefly that Maine did not offer an exemption to its vaccine mandate for sincerely held religious beliefs. For the state to preclude, deny or revoke vaccine exemptions for religious beliefs is “plainly unconstitutional,” the suit reads, and it “runs roughshod over the Supremacy Clause’s demand that federal law be applied in the states, and imposes irreparable First Amendment injury on plaintiffs’ sincerely held religious beliefs.”
The first preliminary injunction against a COVID vaccine mandate was issued Sept. 9 by U.S. District Judge Paul L. Maloney against Western Michigan University in Kalamazoo, Mich. Sixteen Christian student athletes sued the university for denying their petitions for exemptions to the athletic department vaccine mandate. They requested exemptions based on religious beliefs. Judge Maloney ruled that Western Michigan’s policy was not narrowly tailored to meet its compelling interest and did not utilize the least-restrictive means. Western Michigan has appealed the preliminary injunction to the Sixth Circuit of the U.S. Court of Appeals, based in Cincinnati.
The lead attorney in the Western Michigan case, David A. Kallman of the Great Lakes Justice Center, said Judge Maloney’s preliminary injunction gives him hope for his case, and others nationwide that are fighting vaccine mandates.
“It’s one thing to say you’ve got to wear a mask or social distance or get tested once a week. Those are less invasive. People tend to lose those cases when you raise religious objections,” Kallman said. “But when it comes to this, the vaccine, when you’re being forced to make a choice to either inject this into your body against your will or lose a job, or like our clients at Western Michigan, you’d lose your scholarship and your position. The courts seem to be coming down on our side on that issue. It’s like a line that they’re going to stop them at, which I think is a great thing.”
Kallman said he agreed with language in the New York health care suit that said vaccine mandates will create a “caste of untouchables” who face loss of jobs and professional standing during a “pervasive climate of fear and loathing of the unvaccinated.”
“That’s exactly what they’re doing is they’re creating a caste society like in India,” Kallman said. “And all because people want to exercise their right to make their own medical decisions … which everybody up until now just presumed you had the right to do. If you’ve got cancer and you don’t want to accept medical treatment, you don’t want chemotherapy, you have the right to say no.”
‘We have no more freedom’
Kallman said the issues at stake in the lawsuits show how society is at a tipping point over COVID. “I think that this is a line that if we lose this battle, there’s nothing the government can’t make you do,” he said.. “If you don’t have the right to decide your own medical treatment—right or wrong, it’s your choice—if you don’t have that right and the government can force you to inject a serum, a medical treatment into your body against your wishes, there’s nothing they can’t do. And we have no more freedom as far as I’m concerned. That’s how critical this is. We don’t live in a free society anymore. If they prevail on this vaccine mandate stuff, we’re in dire straits.”
The vaccine mandates being enacted at local, state and federal levels have people spooked and looking to civil-rights law firms for help. “We are now receiving well over 1,000 pleas for help every day,” Liberty Counsel said on its web site. “We are overwhelmed by the number of people desperately facing life-and-death decisions. Never in our 32-year history have we faced such a deluge of requests for legal help and protection from such outrageous tyranny. Our entire staff is under the gun, working round the clock to save as many lives as possible.”
Liberty Counsel on Sept. 21 sent a letter of demand as prelude to a possible lawsuit against Texas Children’s Hospital in Houston, alleging the hospital’s denials of religious exemptions to its mandatory COVID vaccine policy are unlawful. “Texas Children’s cannot compel any employee’s compliance with Texas Children’s mandatory COVID-19 vaccination policy against the employee’s sincerely held religious belief,” wrote Liberty attorney Horatio G. Mihet. Exemption denials were issued by the hospital based on personal-belief statements written by the employees, Mihet said.
The vaccine mandates and other coercive COVID-19 policies come from an authoritarian/administrative mindset that assumes policy-makers have all of the answers, said Edward A. Morse, professor of law and the McGrath North Mullin & Kratz Chair in Business Law at Creighton University in Omaha.
“If you respected the ‘zone of conscience,’ you would not be so anxious to impose mandates on everyone,” Morse said in an interview with Catholic World Report. “The fact of the matter is that the government has been unsuccessful in their quest at persuasion. There are too many legitimate reasons not to pursue these vaccines. They are not telling us the truth and following the science when it comes to the legitimate health concerns that arise from the vaccine itself. For many people, the value proposition is simply not there.”
“I think the government, especially the Biden Administration, understands that,” Morse said. “And so what is their response? Instead of respecting the citizens, we’re going to intrude on their rights and we’re going to change the value proposition by making it impossible for you to engage in ordinary acts of commerce like going to a restaurant or going to a concert. We’ll even up the ante a little further, because we may take away your very livelihood through these compulsory vaccination requirements.”
The heavy-handed approach by governments takes the freedom away from employers who want to respect not only religious conscience rights, but also “other conscientious and prudential beliefs about what’s good for you and your family,” Morse said.
“You’re trying to use the crushing power of government to coerce fealty from all of those employers as well,” he said. “The threat to the individual is you’ll lose your livelihood if you’re unwilling to comply. It’s a systemic problem that’s really rooted in the undue trust of the administrative state and the power of government on behalf of the progressive establishment that runs the federal government and many states.”
Despite the disparate opinions coming from U.S. bishops and the Catholic Church over the COVID vaccines—even the Vatican will soon require a vaccine pass to gain entrance—the conscientious objectors got recent encouragement from Auxiliary Bishop Athanasius Schneider of Astana, Kazakhstan. In a letter distributed by the Confraternity of Our Lady of Fatima, Bishop Schneider said he was touched by the example of a U.S. woman who wrote him to report she was fired from her job for refusing the COVID vaccine.
“I urge you to continue on this path that you have chosen of witnessing to the truth that unborn life is sacred and that the trafficking of fetal body parts is an evil industry that cries out to Almighty God for His justice,” Bishop Schneider wrote. “As you seek His Kingdom, first and above all, believe that you will be provided for.”
If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!