In August 2021, New York City ordered all employees in its public school system to be vaccinated against Covid 19. Then a short while later the city ordered all of its municipal workers to be vaccinated. The vaccines were authorized by the U.S. Food and Drug Administration and recommended by the Centers for Disease Control, as well as other federal and public health experts. Some of the employees were refusing to be vaccinated because they had learned that some of the cells were from abortions from years ago but perpetuated since then for lab use.

These employees believed that abortion was the termination of an unborn child, and the fact that these cells used for the vaccine were not directly from abortions did not matter since they descended from prior abortions. Taking these vaccinations violated their religious beliefs regarding the value placed on human life. Employees refusing to be vaccinated were terminated by New York City.

Obviously, this situation involves the weighing of values. The value of religious freedom and the value of a safe/vaccinated workplace during a pandemic. Issues involving religious freedom have been frequently brought before the Supreme Court. When the state does not have a compelling interest, religious freedom has frequently won the day.

Lawsuits for discrimination followed the terminations given religious beliefs were involved here. Lower courts were not sympathetic. Some noted the Vatican issued guidance to Catholics in 2020 that it is morally acceptable to use Covid-19 vaccinations, and that other religious groups either recommended vaccination or did not speak out against vaccination.

On this particular vaccine issue, an emergency request was filed with the Supreme Court. However, there was little likelihood of the Court taking that up as in June 2022 the Supreme Court refused to take up the religious challenge involving vaccine mandates on healthcare workers. Also, Justice Sotomayor, the designated justice to act on emergency matters arising out of the state of New York and a few other states, had already rebuffed prior efforts in 2021 when vaccine mandates were imposed on police officers and public school teachers.  Now she again rejected consideration of this emergency request.

So, does this mean that religious freedom is no longer protected in the workplace? Not really. The Supreme Court has previously noted that “[t]he state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.” Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707, 718 (1981). Clearly, that involves a balancing of the rights and values noted above. If the discrimination fails to justify that balancing of rights and interests, and the matter involves a sincerely held religious belief, then indeed there may be a problem.

By way of example, discrimination against religious beliefs occurred when an employee who refused to work on Sundays was fired and then denied unemployment benefits. See, Frazee v. Illinois Employment Security Dept.,). There was a problem in Frazee and the judgment of the Illinois court was reversed, since “ … [t]he State offers no justification for the burden that the denial of benefits places on Frazee's right to exercise his religion.” Id. 835.

The Civil Rights Act at 42 U.S.C. §§ 2000e–1(a), 2000e–2(e) precludes discrimination on the basis of religion. Protection of religion is alive and well. But when values have to be weighed, one competing interest may have to give way. So, you can be fired for a religious belief, as long as the action is pursuant to law that has a compelling interest, and it uses the least restrictive means to achieve that interest. The point of 42 U.S.C. § 2000e-2 (k) and other parts is to furnish the balancing required to avoid discrimination.

After the appeal courts conclude their reviews we will see if the full Supreme Court grants cert. on any of these cases to examine the balancing of these interests.