Since May 2024, at least ten federal appeals court rulings have protected those with religious and moral objections to COVID-19 vaccines or testing. We last covered two of those cases on July 7. On July 29, two important rulings came down: In Spivack v. City of Philadelphia, a city prosecutor lost her job after denial of her religious exemption. In Passarella v. Aspirus the Seventh Circuit Court of Appeals held that people with intertwined religious and secular (e.g. scientific) objections to vaccination may be entitled to a religious exemption. This week we examine the Spivack case, and next week we will analyze the Passarella decision.
Prosecutor’s religious exemption denied
Rachel Spivack was an Assistant District Attorney in Philadelphia, PA. Her office issued a COVID-19 vaccine mandate, and she requested a religious exemption. This was denied, and Ms. Spivack lost her job. She promptly sued, claiming that the mandate violated her right to the free exercise of religion under the First Amendment. The trial judge effectively dismissed the case, granting a motion by the City and the District Attorney for summary judgement. On July 29, the Third Circuit Court of Appeals reversed this order and sent the case back to the district court judge for a trial on the merits.
COVID-19 disrupts DA’s operations
The Court of Appeals noted that in March 2020, COVID-19 “severely disrupted” the DA’s office operations. Yet, “the criminal justice system could not shut down, and some of the [DA’s] responsibilities could be accomplished only in person.” The office created policies around access, masking, and testing. Some of these lined up with City government-wide rules, and some did not. The DA felt that “the City was politically constrained to enact suboptimal rules that did not maximize employee and public health.”
“Deep personal commitment to…religious practice”
In September 2021 Spivack was offered a job with the DA’s office; due to an issue with her remote bar exam, she was hired for a Juvenile Diversion position that did not need a law license. A month earlier in August, the DA issued its COVID-19 vaccine mandate policy. This policy required vaccination or a request for exemption by September 1. “It did not offer any alternatives to vaccination, such as masking or testing,” yet it allowed for application for medical or religious exemptions. Within one week of starting work, Ms. Spivack submitted a request for a religious exemption, including a letter from her rabbi. The letter said that she was an Orthodox Jew and also that the “religious grounds for declining this vaccination are valid and reflect deep personal commitment to her religious practice.”
Exemption form
In December 2021 the DA’s office notified unvaccinated recent hires such as Spivack that folks seeking exemptions must fill out an exemption form, which included asking them to “describe the specific belief that supports your receiving a religious exemption from being vaccinated for COVID-19.” The form also asked about vaccination history, religious services attendance, religious beliefs on diet and medical care, and more. The office noted in testimony that, “when they distributed the form, they had not yet decided how to handle religious exemptions.”
“Scriptural prohibitions against forbidden mixtures”
In filling out this form, Spivack noted that the COVID-19 vaccines available were “a profound violation of the scriptural prohibitions against forbidden mixtures,” and that “injecting such forbidden substances directly into our bloodstream completely challenges scriptural teaching that regards one’s body as the repository of the soul made in God’s image.” Her answers offered that her belief precludes any use of any vaccine. She also said that the Orthodox community has diverse opinions about vaccination and that individual rabbis, such hers, “may come to different, but equally valid, rulings about a course of action.”
Unclear which policy in effect
In January 2022, after submission of the form but prior to any decision, the DA’s office by its own admission, “made a policy change. Rather than offering religious exemptions and evaluating them case-by-case, as the August 2021 policy provided, [the DA] decided to categorically deny religious exemption requests without individualized assessment.” Yet, from the appeals court’s point of view, it is unclear if this January change ever went into effect. The DA, “also admitted that he reviewed the religious exemption requests, though he says that he did so only out of respect for the time employees devoted to preparing them.”
Denial shows “indicia of a form letter”
In March 2022, Spivack was told her exemption was denied, and requests for more details from the office were denied. The formal denial letter said that the denial was based on “failing to meet legal requirements” and included “Legal Analysis” asserting that the mandate was “neutral and that exemptions would cause an undue burden.” While including Spivack’s name, the formal denial “bears the indicia of a form letter: it uses gender-neutral pronouns, and Spivack’s name was entered on a blank line. It also does not address the contents of Spivack’s exemption request form….” The Third Circuit stated, “Not all restrictions on religious exercise are presumptively unconstitutional….” Yet courts must closely scrutinize actions and policies which single out, “religious conduct for distinctive treatment.”
Neutral and generally applicable?
To be upheld, government policies that are neutral and “generally applicable” only need to meet the “rational basis” standard—that they are rationally-related to a legitimate interest. Those not meeting these two criteria are subject to “strict scrutiny,” requiring both a compelling government interest and the use of narrowly tailored actions. According to the court, “The main dispute, then, is whether the mandate is neutral and generally applicable.”
When is a policy neutral?
A government policy is neutral when it does not target religious practices or show intolerance of religious beliefs; a policy is generally applicable when it neither provides a process for individualized exemptions nor “prohibit[s] religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Both criteria inform the same factual issue: “does the policy single out religious practices for distinctive treatment?” For neutrality, we look at lawmakers’ subjective intent: is there “hostility,” “animosity,” “distrust,” or a “negative normative evaluation”? For general applicability, the focus is “the objective sweep of a policy: whom it covers, whom it exempts, and how it makes that distinction.”
Religious beliefs criticized by District Attorney?
Potential animosity was shown by statements of the District Attorney at his deposition: “we have, basically, people who are denying science and are endangering others and it’s wrong. One of the things you may not know from my career is that I have sat in courtrooms where parents refused to provide medical care for their children and whose children then died, [and they] have been convicted of crimes and sent to jail for that and the law thinks that that’s right and the law thinks that that’s correct. Their basis for denying medical care, in some instances to more than one child after another who died, one child after another, was their religious beliefs. Rights are not completely unlimited. They can’t be completely unlimited and those children lost their lives because their parents were utterly unscientific in what they were doing. Government has a role and that role is to respect, observe, and elevate rights, but it is not to do so in a way that annihilates the population and kills people.”
Back to the trial court
In overturning the grant of summary judgement for the DA, the Third Circuit noted that it was up to a jury to decide:
1) whether the 2021 policy or the 2022 policy was used to deny Ms. Spivack’s exemption request, and
2) whether the policy used was neutral.
On this second question, the Third Circuit quoted the US Supreme Court: “The question, then, is not whether the [DA] has a compelling interest in enforcing its [vaccination] policies generally, but whether it has such an interest in denying an exception to [Spivack].” The Third Circuit went on to note that the trial court should determine how many religious exemption requests were at issue and whether less-restrictive means (e.g. masking) could ensure safety at the DA’s office. Ms. Spivack’s attorneys are with the First Liberty Institute, “the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.”
One more tool to fight for religious exemptions
While most of the new federal appeal cases decided since May have focused on the contours of what constitutes a valid religious objection and/or what accommodations must be provided, Spivack’s emphasis on hostility to religion offers a different angle for challenging vaccine mandates.
