Holding the line

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MARY REICHARD, HOST: It’s Thursday the 16th of April.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

MYRNA BROWN, HOST: And I’m Myrna Brown.

Coming up next: Fighting for medical freedom.

A group of Christian firefighters is expected to petition the United States Supreme Court today in a religious discrimination lawsuit. WORLD’s legal correspondent Jenny Rough says the case involves vaccine mandates.

JENNY ROUGH: In August 2021, nearly 18 months after the start of the COVID pandemic, then-Washington Governor Jay Inslee ordered health care workers vaccinated, and that included firefighters. Audio from King 5 Seattle:

JAY INSLEE: We will be requiring our state workers and our contractors who come on to our sites, and workers in private health care and long-term care settings to be vaccinated as a condition of further employment.

After the Washington vaccine mandate, a case out of Snohomish caught the eye of attorney Jennifer Kennedy. It involved a group of eight Christian firefighters she called the Snohomish 8.

All the firefighters had requested religious exemptions.

JENNIFER KENNEDY: Every single one of the Snohomish 8 firefighters has a personal faith relationship with God … in which they pray for guidance, they pray for big life decisions, they follow the teachings of the Bible.

Objections ranged from a concern the vaccine was derived from aborted fetal cell lines … to more generalized health concerns around the belief that God created humans in his image and with sophisticated immune systems.

KENNEDY: People of faith can be smart, critical thinkers, and they can read the science and understand the implication of what happens if I inject synthetic RNA into my perfect design.

The governor’s mandate said employers should comply with Title VII of the Civil Rights Act. That obligates employers to provide reasonable accommodations for employees with sincerely held religious beliefs, like the Snohomish 8.

KENNEDY: You don’t eliminate the employee. You eliminate the conflict.

Unless an accommodation would cause the employer an undue hardship. That’s the exception. And that’s what the fire department told the Snohomish 8.

KENNEDY: They said, we can’t possibly accommodate you. You men remaining unvaccinated are now an undue hardship to this department and the public we serve.

When the department put the men on unpaid leave, the Snohomish 8 filed a religious discrimination case in federal court. But they lost before it even went to a jury trial. The judge granted what’s known in the law as a motion for summary judgment. Think of it this way: Essentially, the defendant, the fire department, said to the judge: Here’s the evidence the Snohomish 8 plaintiffs have. And even if you took all of their evidence as true, they’d still lose their case. No rational juror would find in their favor.

Kennedy believes that ruling was wrong.

KENNEDY: Why? Because they had spent nearly two years successfully doing their jobs with PPE, masking, testing, social distancing, and crazy disinfecting.

If the Snohomish 8 could work with personal protective equipment, sanitizing, and safety measures before the mandate, why not after?

KENNEDY: Good morning, your honors. … May it please the court.

Last year, Kennedy argued the case on appeal to the Ninth Circuit. She said the fire department’s claim defied logic. At the same time that it placed the Snohomish 8 on unpaid leave, it partnered with neighboring fire districts who employed unvaccinated workers. In other words, the Snohomish fire department allowed its vaccinated firefighters to work side-by-side with unvaccinated firefighters anyway! Here’s Kennedy before the Ninth Circuit.

KENNEDY: How does that make any sense? That you will ban a firefighter being near his coworkers when he’s on your roster and on your dime, but when he’s not, it doesn’t matter. It’s absurd. And it’s irrational. And it shows they didn’t really fear them as a health and safety threat.

Lawyer Shannon Phillips argued for the fire department. She said alternative safety precautions, like masks and social distancing, would not work because firefighters are also EMTs. That requires close contact with the public. Here’s her exchange with 9th Circuit Judge Danielle Forrest.

SHANNON PHILLIPS: They go into people’s homes, they go into prisons, they go into long-term care facilities that were the epicenter of some of the COVID outbreaks.

JUDGE DANIELLE FORREST: I think that’s a very compelling argument. But what do you do with her point about if that was such a concern, why were firefighters from other places who were not vaccinated being allowed to work alongside your people?

Despite that acknowledgment, the Ninth Circuit would go on to affirm the lower court’s decision. First Liberty Institute and the law firm Williams and Connolly joined the legal team to petition the Supreme Court. Cliff Martin of First Liberty:

CLIFF MARTIN: We’re asking the court specifically to look at a circuit split between three circuits and three other circuits.

Meaning, different circuits had different standards—a classic conflict that often causes the Supreme Court to hear a case. The split arose after the high court ruled in Groff versus DeJoy, a Title VII case that strengthened the religious rights of employees. A unanimous Supreme Court said for an employer to claim it would suffer an undue hardship it must show it would suffer substantial increased costs.

Martin says the Ninth Circuit applied that test incorrectly.

MARTIN: There are three circuits that hold an undue hardship under Groff can be shown by an employer through a reasonable suspicion or reasonable belief that they will experience a substantial increased cost.

Three other circuits have held “undue hardship” cannot be hypothetical. The bar is higher.

MARTIN: There’re three other circuits that have held, no an employer must prove that there is an actual substantive cost. And so the question is just the degree of proof.

Under that standard, the case would likely go to a jury, rather than be tossed out by a judge in summary judgment.

MARTIN: And that’s where this case should be going. It should be heading to trial with a jury to determine if there was, in fact, an undue hardship.

Most of the Snohomish 8 returned to their jobs. But almost all state mandates have lapsed. Some states now even prohibit them.

Reporting for WORLD, I’m Jenny Rough in Washington, D.C.

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