Liberty Counsel filed a petition for rehearing in Does v. Hochul asking the U.S. Supreme Court to reconsider its decision to deny review of a case involving New York health care workers who were fired for refusing to take the COVID shot due to their deeply held religious convictions. The petition argues the U.S. Second Circuit Court of Appeals has wrongly adopted a rule that denies federal Title VII religious accommodations when a state vaccine law forbids them. The petition asks SCOTUS to grant the petition, vacate the judgment, and remand to allow the case to proceed with discovery and final judgment in light of the Second Circuit’s resistance to legal precedent protecting federal religious accommodation rights regarding the Does case and beyond.

Central to the rehearing request is the Second Circuit’s recent June 30 decision in Miller v. McDonald, issued just one day after SCOTUS denied the Does 1-2 v. Hochul petition. In Miller, the Second Circuit similarly ruled that New York law may require vaccination—this time for school attendance—without providing religious exemptions. However, SCOTUS vacated that decision and instructed the Second Circuit to reconsider its judgment under precedents favoring religious and parental rights. After reconsideration, the Second Circuit’s conclusions remained unchanged. The Second Circuit again upheld New York’s vaccine requirement without any right to a religious exemption despite Supreme Court precedents in Mahmoud v. Taylor and Wisconsin v. Yoder siding with parents and religious rights over state requirements.

In Does and twice in Miller, the Second Circuit “tripled down” on its position with its “entrenched insistence that religious accommodations are not available in New York,” wrote Liberty Counsel.

When SCOTUS denied the original petition in Does, Justice Neil Gorsuch dissented from the denial, joined by Justices Clarence Thomas and Samuel Alito. In his dissent, Justice Gorsuch warned that the Second Circuit’s ruling yielding Title VII to state law could leave states “free to strip individuals” of federal civil-rights protections, which essentially allows states to nullify religious liberty rights simply by enacting contrary laws.

The rehearing petition further notes there is a deepening conflict among the federal circuit courts. While the Second and Ninth Circuits reject religious accommodation claims in vaccination disputes, the Fourth Circuit has allowed Title VII claims to proceed. 

This circuit court split “warrants Supreme Court attention,” wrote Liberty Counsel.

Liberty Counsel represents the three health care workers against Governor Kathy Hochul, Department of Health Commissioner James McDonald, Trinity Health, Inc., New York Presbyterian Healthcare System, Inc., and Westchester Medical Center Advanced Physician Services, P.C. In this case, New York’s COVID-19 mandate required that state employers force employees to get the COVID-19 shot, but unlawfully denied religious exemptions while approving nonreligious medical exemptions. 

Liberty Counsel Founder and Chairman Mat Staver said, “This case presents an important question of whether Congress’ guaranteed religious accommodation protections can be nullified whenever a state prohibits them. If left unaddressed, the Second Circuit’s approach risks creating a patchwork system in which fundamental Title VII rights vary from state to state undermining the supremacy of federal law and uniform protection of religious liberty in the workplace. At a minimum we are asking the U.S. Supreme Court to grant the petition, vacate the judgement, and remand the case to allow discovery and a trial regarding the interplay between Title VII and contrary state law. These New York health care workers deserve justice for being unlawfully forced to choose between their livelihoods and their religious convictions.”