|
As past newsletters have reported, the U.S. Court of Appeals for the Second Circuit has issued several important decisions upholding vaccine mandates. On March 3, 2025, the court did so once again in Miller v. McDonald.
The plaintiffs in Miller were three “Amish community schools,” as well as parents and board members associated with the schools. The schools had been fined by the state for failing to require a certificate of immunization.
In 2019, following a measles outbreak, New York state repealed the religious exemption to its school immunization law. According to the plaintiffs this repeal violated their rights to freely exercise their religion, as protected by the First Amendment to the U.S. Constitution. Plaintiffs also alleged that New York’s law impaired their right to control their children’s religious upbringing, as recognized by the Supreme Court in the 1972 decision, Wisconsin v. Yoder.
The district court disagreed with the Miller plaintiffs and granted the state’s motion to dismiss.
In a per curiam opinion, a panel of Second Circuit affirmed the motion to dismiss. Citing the Supreme Court’s 1990 decision in Employment Division v. Smith, the appeals court explain that a law that incidentally burdens the exercise of religion is constitutional if its “neutral and generally applicable” and satisfies “rational basis review.” Relying on the Supreme Court’s seminal vaccine 1905 vaccination case, Jacobson v. Massachusetts, the appeals court easily concluded that New York’s immunization law was rational. The key question in the Miller case, therefore, was whether the immunization law was “neutral and generally applicable.” If so, it was constitutional; if not, it would be subject to the much more stringent strict scrutiny test and would likely fail.
According to the court, the repeal of New York’s religious exemption was both neutral as to religion and generally applicable. Turning to the issue of neutrality, the court noted that the law was neutral on its face and did not target or affirmatively prohibit religious practices. The court added that the fact that a “small number of legislators” made statements that could be viewed as having an anti-religious bias did not taint the law as a whole.
The court also found that the law was generally applicable. Like many other recent challenges to vaccine mandates, the Miller plaintiffs argued that New York’s law was not generally applicable because it allowed for a medical but not a religious exemption. Some courts have accepted this reasoning, but in 2023 the Second Circuit had rejected it We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, which challenged Connecticut’s repeal of its religious exemption. Relying heavily on We the Patriots, the court in Miller ruled that the fact that New York treated religious and medical exemptions differently did not mean that the law was not generally applicable as the two types of exemptions are not comparable because the former increases the number of unvaccinated children while the latter furthers the state’s health goals. In addition, the court noted, the state set strict requirements for medical exemptions: religious exemptions could not be similarly limited.
Finally, the court also rejected plaintiffs’ claims under Yoder, noting that the rights recognized in that case were “limited by the state’s interest in protecting public health.”
Tort Claims
Although most if not all COVID-19 vaccine mandates have been lifted, plaintiffs continue to challenge mandates that were put in place during the height of the pandemic. Many of these challenges are being brought under Title VII of the Civil Rights Act of 1964. But plaintiffs are also turning to other more novel claims.
In an interesting set of cases, at least four workers in Alabama brought invasion of privacy claims against Austal USA that complied with the emergency temporary standard from the federal Occupational Safety and Health Administration that was then in place by requiring workers to either be vaccinated or wear a mask. The workers also claimed that Austal was negligent in its response to the pandemic.
In January, federal district judge Kristi DuBose (a Bush appointee) dismissed these claims in separate opinions. Rejecting the invasion of privacy claims, Judge DuBose noted that the Second Restatement of Torts provides that there can be no invasion of privacy when the subject matter of the disclosure is “of legitimate public concern.” According Judge DuBose, any disclosure of plaintiffs’ vaccination status by the masking requirement was of legitimate public concern due to the employer’s interest in maintaining the health of its workforce. Judge DuBose also rejected the plaintiffs’ negligent handling of COVID claims without providing any analysis of those claims.
| 
