11 conservative judges join fray
High court asked to take up religious exemptions case
A day after the Supreme Court blocked the Biden administration’s vaccine-or-mask mandate for large employers, 11 conservative federal appeals court judges called Friday for the high court to step into another COVID-19 legal dispute: the denial of religious exemptions from a vaccination-or-stay-home edict for students 16 and older in California’s second-largest school district.
“Our court’s decision once again disregards Supreme Court precedent and threatens the religious liberty of tens of thousands of students,” Judge Patrick Bumatay wrote in an opinion dissenting from the Ninth U.S. Circuit Court of Appeals’ refusal to reconsider a ruling in favor of the San Diego Unified School District.
Paul Jonna, a lawyer for a 16-year-old girl who seeks a religious exemption from the vaccination mandate, said he thinks the dissents by Bumatay and 10 colleagues made it “much more likely that the Supreme Court will pay close attention and take action in this case.” Jonna said he has asked the high court for an emergency injunction against the school district.
The court’s conservative majority has issued a series of rulings siding with religious and business groups challenging coronavirus health orders. In February, the court overturned Gov. Gavin Newsom’s ban on indoor worship services in California counties hard-hit by COVID-19. In April, the court struck down Newsom’s limits on the size of indoor religious gatherings in private homes.
And on Thursday, a 6-3 majority barred the Biden administration from requiring businesses with 100 or more employees from requiring workers to be vaccinated or take regular coronavirus tests and wear masks at work.
The San Diego district, which has 121,000 students, is requiring all those who turned 16 before Nov. 1, 2021, to be vaccinated against the coronavirus in order to keep attending classes in person, and take part in sports and other on-site programs, when the next semester starts Jan. 24. The mandates will extend to students ages 12-15 and 5-11 at later dates based on federal vaccine standards.
Students who obtain medical exemptions are allowed to attend classes, but the district has not granted religious exemptions. Newsom announced plans in October to impose the nation’s first statewide vaccination requirement for middle-school and high school students to attend school in person, but said it would include exemptions for religious or personal objections to the vaccine.
The 16-year-old plaintiff, identified only as Jill Doe, said the vaccine, manufactured by Pfizer, would violate her Christian beliefs because cells from aborted fetuses were used in early testing of the medication. An aspiring athlete, she said having to stay home would prevent her from taking part in school sports and possibly gaining a college scholarship.
A Ninth Circuit panel upheld the mandate in a 2-1 ruling last month, saying it was a legitimate health measure that did not interfere with a student’s practice of religion. On Friday, the court said a request for a rehearing before a larger panel had failed to gain a majority of its 29 active judges.
But there were an unusually large number of dissenters, 10 active judges and one jurist, Diarmuid O’Scannlain, in semi-retired senior status. All 11 were appointed by Republican presidents, eight of them by Donald Trump.
“Here we go again,” Bumatay, a Trump appointee, began his dissent, joined by six colleagues. “The Supreme Court has again and again admonished this court for failing to follow its guidance.”
The school district’s mandate, he said, requires Jill Doe to “violate her religious beliefs and take the vaccine, or be forced into inferior online classes, harming her education, well-being, and future.”
In response, the authors of last month’s ruling, Judges Mark Bennett — a Trump appointee — and Marsha Berzon said the district was acting in the public interest and was not violating anyone’s rights.
While Jill Doe cannot attend classes in person or take part in school sports, they said, she can still “worship as she pleases and ... continue to abstain from vaccination for religious reasons.”