Spivack v. City of Philadelphia, 2024 U.S. App. LEXIS 18611 (3d Cir. July 29, 2024) (Diamond, J.)
Spivack v. City of Philadelphia, Third Circuit Court decided July 29, 2024.
FREEMAN, Circuit Judge.
Rachel Spivack worked at the Philadelphia District Attorney’s Office (DAO) and was subject to its COVID-19 vaccine mandate. The DAO denied her request for a religious exemption, and she lost her job. She then sued the City of Philadelphia and District Attorney Lawrence Krasner, claiming that the mandate violated her constitutional right to the free exercise of religion. The District Court rejected that claim, granting the defendants’ motions for summary judgment and denying Spivack’s cross-motion. Because it overlooked factual disputes that a jury must resolve, we will vacate its order and remand the case for trial.
…it set out a process to apply for medical or religious exemptions: employees could fill out a form with a description of the requested exemption and the reasons it should be granted. Religious exemptions would be granted “absent undue hardship, to employees with verifiable, sincerely held religious beliefs, observances, or practices that conflict with getting vaccinated.” Exemption requests would be evaluated “on a case-by-case basis considering various factors and based on an individualized assessment in each situation.” Id. The policy also said that “[t]he DAO will engage in an interactive dialogue with you to determine the precise limitations of your ability to comply with this . . . policy and explore potential reasonable accommodations that could overcome those limitations.” This decision to permit requests for exemptions was based on “the employment law knowledge at the time that issuing this kind of mandate allows for some process for requesting exemptions.” Because unionized DAO employees like police officers and civil service workers were governed by their collective bargaining agreements, they were not subject to the policy.
In January 2022—after Spivack submitted her exemption form and supporting documentation, but before she received a decision—Madden and Krasner claim that the DAO made a policy change. Rather than offering religious exemptions and evaluating them case-by-case, as the August 2021 policy provided, Krasner decided to categorically deny religious exemption requests without individualized assessment.
There is a dispute of material fact as to whether anti-religious hostility tainted the DAO’s treatment of religious exemptions. That is because a reasonable jury could conclude, based on some evidence in the record, that the DAO’s treatment of religious exemptions reflected “intolerance of religious beliefs.” Fulton, 593 U.S. at 533. During Krasner’s deposition, Spivack’s lawyers asked him why he disagreed with the City’s vaccination policy.
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.
The Supreme Court has repeatedly emphasized “the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint,” Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 638, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018), and cautioned that the Free Exercise Clause forbids even “subtle departures from neutrality,” Lukumi, 508 U.S. at 534. In Masterpiece Cakeshop, for instance, it faulted a commission adjudicating a claim against a religious objector for giving every appearance of adjudicating [the] religious objection based on a negative normative evaluation of the particular justification for [the] objection and the religious grounds for it.” 584 U.S. at 639 (cleaned up). It based this conclusion on a commissioner’s statement that disparaged a religious objector’s invocation of religious liberty as “one of the most despicable pieces of rhetoric that people can use.”
A jury must decide whether similar problems plague Krasner’s comments. They could be read to reflect a belief that those seeking a religious exemption are “unscientific” and selfish (“not as concerned as they really should be for their fellow human beings”) such that he needed to curtail religious exemptions to prevent religious objectors from “endangering others.” A reasonable jury could interpret these comments to evince hostility toward religious viewpoints that influenced the DAO’s treatment of religious exemptions.
Accordingly, neither party is entitled to summary judgment on neutrality.
Even if a government policy is neutral, it must also be generally applicable to avoid strict scrutiny. A policy is not generally applicable if it either: (1) “invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions”; or (2) “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Spivack claims that the DAO’s mandate fails in both respects.
On remand, a jury must resolve which policy Krasner used when he denied Spivack’s religious exemption request on remand, a jury must resolve which policy Krasner used when he denied Spivack’s religious exemption request and, by extension, whether the applicable policy provided for discretionary, individualized exemptions. The jury must also decide whether the policy was neutral given Krasner’s deposition testimony. The answers to these questions govern the applicable standard of scrutiny.
If the DAO’s vaccine mandate is both neutral and generally applicable, it is subject to rational basis review. Under this deferential standard, a government action is constitutional if it is “rationally related to a legitimate government objective.”
Both the August 2021 and January 2022 policies would easily meet this standard. All the interests put forward by the DAO—protecting employee and public health, preventing the spread of COVID-19, maintaining staffing levels to ensure the proper functioning of the DAO and the criminal justice system—are legitimate. And both policies are rationally related to those objectives because they ensure that a greater proportion of the office is vaccinated and therefore less likely to contract and spread the virus, experience severe illness, or miss work. See We the Patriots II, 76 F.4th at 156 (holding that a vaccine mandate without a religious exemption is rationally related to the government’s interest in public health “because it seeks to maximize the number of [people] . . . vaccinated”).
By contrast, if the mandate is not both neutral and generally applicable, strict scrutiny applies. Under this demanding standard, “[a] government policy can survive . . . only if it advances interests of the highest order and is narrowly tailored to achieve those interests.” Fulton, 593 U.S. at 541 (cleaned up). “Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”
The interests advanced by the August 2021 and January 2022 policies are compelling. “Stemming the spread of COVID-19 is unquestionably a compelling interest.” Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 18, 141 S. Ct. 63, 208 L. Ed. 2d 206 (2020). So are the related interests of “protecting public health against a deadly virus,” Does 1-6, 16 F.4th at 32, and ensuring adequate staffing of an essential government office.
HN26 But the Supreme Court has instructed us not to frame government objectives “at a high level of generality”—instead, we “must scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” Fulton, 593 U.S. at 541 (cleaned up). “The question, then, is not whether the [DAO] has a compelling interest in enforcing its [vaccination] policies generally, but whether it has such an interest in denying an exception to [Spivack].” Id. Relatedly, the DAO must show that its policy was narrowly tailored, which “requires the government to demonstrate that a policy is the least restrictive means of achieving its objective.”
A jury must determine whether Krasner has cleared this high bar. The record reveals that Krasner considered alternatives to a vaccine mandate as a general matter—that is, for all DAO employees—and determined that they would be insufficient. But it does not resolve whether the DAO could have accommodated Spivack or other similarly situated religious objectors. See Lowe, 68 F.4th at 718 (holding that a document discussing alternatives to a vaccination requirement in general terms did not satisfy strict scrutiny).16 Unanswered factual questions pervade this inquiry. How many similar exemption requests would the DAO need to grant? Would other, less restrictive mitigation measures for employees with religious exemptions (like giving them their own offices, enforcing a masking requirement, or imposing a testing regime only for exempt employees) have achieved the office’s objectives? If strict scrutiny applies, a jury must consider these questions and decide whether denying Spivack and others like her religious exemptions was narrowly tailored to serve a compelling interest.
