Well, the opinion is a complete mess, and might not best be read as a
constitutional decision at all. It does, however, suggest a lurking
interesting question about religious accommodations and vaccinations,
albeit one not raised by this case.
This is an unemployment compensation case involving a private
employer. For the most part, the opinion appears to be a
straightforward APA-like arbitrary and capricious decision, not
implicating any constitutional decision. The rationale is that the
religious accommodation undermined the employers stated health
objective for imposing the vaccination requirement, and therefore
there was no good reason for insisting upon the vaccination (and thus
no legal grounds for firing the plaintiff, thereby entitling her to
unemployment compensation). The opinion ends with this holding:
The record is uncontroverted that the employer did not produce
evidence showing appellants refusal to comply with its flu
vaccination
policy for purely secular reasons adversely impacted the hospital or
otherwise undermined appellants ability to perform her job as a
nurse.
Now, this is, of course, nuts. I think it might be a function of the
fact that the employer did not appear in the case--only the state
board of unemployment compensation did. But if, in the underlying
unemployment compensation proceedings, the hospital couldnt come up
with any evidence of adverse impact of the nurses refusal to be
immunized, it needs to hire better lawyers (or administrators). To
be sure, the religious exemption _does _undermine the efficacy of the
vaccination requirement somewhat. But presumably it doesnt blow it
to smithereens, or render it futile -- the patients are still _more
likely_ not to contract the flu if most (even if not all) employees
are vaccinated.
In the midst of all this misbegotten Ad Law stuff, however, the court
interjects two constitutional bits: The first is an unadorned
sentence suggesting a free speech violation _by the unemployment
compensation board. _(The hospital, recall, is a private
employer.) The refusal of the board to give benefits to the secular
objector, writes the court, "unconstitutionally violated appellants
freedom of expression by endorsing the employers religion-based
exemption to its flu vaccination policy." Theres no analysis here,
and this is, of course, even less coherent or justifiable than the
arbitrary and capricious holding.
Then theres the penultimate paragraph, just before the arbitrary and
capricious one quoted above. It sounds in the Establishment Clause:
Our Supreme Court has clearly cautioned that "[g]overnment may not,
under the First Amendment, prefer one religion over another or
religion over non-religion but must remain neutral on both scores."
Marsa v. Wernik, 86 N.J. 232, 245 (1981) (citing Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203, 216, 83 S. Ct. 1560, 1568, 10
L. Ed. 2d 844, 855 (1963)). Under these circumstances, by denying
appellants application to receive unemployment benefits based only on
her unwillingness to submit to the employers religion-based policy,
the Board violated appellants rights under the First Amendment.
This, too, is a mess, for a host of reasons: The hospitals
vaccination requirement is not "religion-based." The Board did not
prefer religion over non-religion -- it would have also denied
benefits to a religiously motivated employee who was fired by an
employer for not being immunized. The only authority cited has
nothing to do with this sort of case-- _Marsa_ was actually a _Town
of
Greece_ precursor that allowed a borough council member to make a
pre-meeting invocation! And _Schempp_, of course, involved the
states own religious expression. Etc.
So Id suggest we ignore this decision itself--nothing good can come
of
it.
But heres the interesting lurking question:
Assume that a _state_ actor, such as a legislature or a state
employer, granted a religious-only exemption to a vaccination
requirement. This actually happens quite frequently under state
laws. In my view this is an Establishment Clause violation, because
of the harm to third parties. The interesting question is who can
sue to complain about it. A member of the public or a student at
school who may be exposed to unimmunized religious objectors?
(Probably standing problems, at least in federal court.) What about
a secular objector who complains that the state cannot discriminate
against her non-religious reasons for wanting the exemption -- a
_Texas Monthly_-like case, in other words, but without the Free
Speech/Free Press overlay? The irony in such a case is that
extending the exemption to secular objectors eliminates the
Establishment Clause problem -- thats why some legislatures have done
it! -- while at the same time further further undermining the
underlying health reason for the vaccination requirement. Should the
secular objector be able to prevail in that case, relying principally
on the harm to third parties that makes the religious exemption
unconstitutional . . . even though that harm that will be exacerbated
if the exemption if the plaintiff wins and the exemption is extended
beyond religion?
On Fri, Jun 6, 2014 at 11:50 PM, Volokh, Eugene <vol...@law.ucla.edu
[6]> wrote:
Any thoughts on this New Jersey case?
(Note that the court’s rationale focused not on the Establishment
Clause as such, but rather on the conclusion that “The Boards
decision upholding appellants termination unconstitutionally
discriminated against appellants freedom of expression by improperly
endorsing the employers religion-based exemption to the flu
vaccination policy and rejecting the secular choice proffered by
appellant.”)
Eugene
FEED: Religion Clause
POSTED ON: Friday, June 06, 2014 4:05 AM
AUTHOR: Howard Friedman
SUBJECT: Religious Exemption From Vaccination Policy Requires
Acceptance of Secular Reasons As Well
In _Valent v. Board of Review, Department of Labor [1],_ (NJ App.,
June 5, 2014), the New Jersey Superior Court Appellate Division held
that a nurse employed by a hospital was entitled to unemployment
compensation after she was fired for refusing to obtain a flu
vaccination as required by the hospitals policy. The hospital
policy allowed exemptions for religious or medical reasons, however
here the nurses objections were based on secular non-medical
concerns. The court wrote in part:
By exempting employees who can produce religion-based documentation,
the employers flu vaccination policy is clearly not exclusively
driven by health-related concerns. The Board cannot therefore accept
the policy as a proper basis to find appellant committed an act of
insubordination of sufficient magnitude to render her disqualified
for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....
The religion exemption merely discriminates against an employees
right to refuse to be vaccinated based only on purely secular
reasons. Our Supreme Court has clearly cautioned that
"[g]overnment may not, under the First Amendment, prefer one
religion over another or religion over non-religion but must
remain neutral on both scores.".... Under these circumstances, by
denying appellants application to receive unemployment benefits
based only on her unwillingness to submit to the employers
religion-based policy, the Board violated appellants rights under
the First Amendment.
AP reports [2] on the decision.
View article... [3]
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[1] http://www.judiciary.state.nj.us/opinions/a4980-11.pdf
[2]
http://www.app.com/story/news/crime/jersey-mayhem/2014/06/05/nj-court-rules-nurse-vaccine-refusal-firing/10040445/
[3]
http://religionclause.blogspot.com/2014/06/religious-exemption-from-vaccination.html
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