Justice Sotomayor Declines to Halt NYC Public Employee Vaccine Mandate

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Sotomayor, as Second Circuit justice, denied an emergency application to halt New York City's vaccine mandate for public employees, pending appeal.

The denial came without explanation. That's not unusual for this kind of thing.

A group called New Yorkers for Religious Liberty filed the application. It argued that the City's enforcement of the vaccine mandate violate the Free Exercise Clause. In particular, the group maintained that the City had too much discretion in granting religious exemptions, that the City "play[ed] denominational favorites" and made other arbitrary decisions regarding exemptions, and that "[t]he City uses its executive discretion to prefer secular conduct that undermines the government's asserted interest in similar ways as non-exempted religious conduct."

The arguments looked to exploit holes in the Smith test, which applies rational basis review to government actions that are neutral with regard to religion and generally applicable. The Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that statements by commissioners reflected anti-religious animus, and therefore the Commission failed to apply Colorado's anti-discrimination law in a way that was neutral with regard to religion. More recently, in Fulton v. City of Philadelphia, the Court ruled that the City's discretion in enforcing anti-discrimination law made it not generally applicable. The two rulings significantly chipped away at Smith, even if the Court (so far) has declined to outright overrule Smith.

The group's arguments in its emergency application are in the same spirit--that the City enforces the otherwise neutral and generally applicable vaccine mandate in a way that discriminates against certain religious beliefs, or leaves too much discretion in the hands of City officials who can grant exemptions.

Justice Sotomayor's denial follows two Court rulings earlier this year, one rejecting a Biden Administration effort to impose a vaccine mandate on employees of large employers and another one upholding a Biden Administration move to require facilities that receive Medicare or Medicaid funding to ensure that their employees are vaccinated. Those rulings turned on the Administration's authority to adopt those rules, however, and not the Free Exercise Clause.