Coloradans who brought legal challenges to employers’ COVID-19 vaccine mandates have received a tepid response in state courts even as the wider legal landscape starts to shift to become more friendly toward claims that the right to religious freedom should protect people against mandatory vaccination, The Denver Post found.
Such constitutional challenges to vaccine mandates have long been dismissed by courts — the U.S. Supreme Court first upheld vaccine mandates in 1905 — but recent moves by the justices to strengthen religious freedom in other contexts have begun a shift away from that long-held precedent, legal experts told The Post.
“If you had written the textbook on public health law three or four years ago, what it would have said about (these) challenges is — not very likely to succeed,” said Daniel Goldberg, associate professor at the University of Colorado’s Anschutz Medical Campus. “…The textbooks are being rewritten as we speak. It’s not the same textbook in 2023 that it was in 2019. It just isn’t. It’s wild.”
In Colorado, at least 28 lawsuits have been filed since 2021 that challenged employers’ COVID-19 vaccine mandates, a review of court records show. Most of those cases remain ongoing and have not been decided. But the cases that have been decided generally saw judges issuing rulings that favored vaccine mandates.
In three cases, judges dismissed the lawsuits outright. Two were dismissed for a lack of jurisdiction, including one brought by several Denver police officers, and one was dismissed for failing to state a claim, court records show. Another lawsuit was dismissed voluntarily by the plaintiff.
Five cases were settled, including a challenge to Denver’s vaccine mandate that was brought by Colorado construction associations. In that lawsuit, the judge ordered that the case be dismissed for failing to state a claim and for lack of jurisdiction and gave the construction associations 30 days to file an amended complaint to keep the case alive. The associations settled with the city soon after that ruling.
The lackluster reception plaintiffs have received in Colorado courts is typical across federal courts, said Dorit Rubinstein Reiss, professor of law at UC Law San Francisco.
She sees four major categories of vaccine mandate challenges: constitutional challenges based on due process and equal protection, constitutional challenges based on the First Amendment and freedom of religion, challenges brought under the Civil Rights Act of 1964, and claims under the Americans with Disabilities Act.
Only the religious freedom claims have seen recent growing acceptance in court, she said, and even that is limited.
“By and large, courts have not been very receptive of employee claims against mandates,” she said. “That might be changing on religion, but not otherwise.”
In many of the Colorado lawsuits, workers asked judges to take immediate action to block the vaccine mandates through a legal tool known as a preliminary injunction. But no judges in Colorado have granted any of those requests, court records show.
That’s also reflected nationwide, said Goldberg said. In most cases, judges find that the workers’ claims don’t meet the legal standard for an injunction. That standard requires that judges believe both that the plaintiffs are likely to succeed with their claims and that failing to act immediately would cause the plaintiff irreparable harm. Only a handful of courts, including the conservative Fifth U.S. Circuit Court of Appeals, have granted such injunctions.
In one ongoing Colorado lawsuit, several doctors, students and staff at CU’s Anschutz Medical Campus are seeking an injunction after the school implemented a COVID-19 mandate in September 2021. The plaintiffs, who are not identified by name in court filings, argue that the university’s policy violated their right to freedom of religion.
A federal judge dismissed most of the plaintiffs’ claims in September and denied a preliminary injunction in the case after the university revised its policy. The plaintiffs appealed the denied preliminary injunction to the 10th U.S. Circuit Court of Appeals, where the case has been awaiting a decision for nine months. At least one other similar lawsuit over vaccine mandates is on hold pending that decision from the appeals court, records show.
The university’s initial policy was “embarrassingly discriminatory,” said attorney Michael McHale, senior counsel at the Thomas More Society, a nonprofit organization that litigates for religious freedom. It was within a month replaced with a more neutral policy.
“This was kind of a phenomenon during the COVID vaccine initial push, we saw a lot of governments not understanding that you cannot determine whether someone has a legitimate religious belief,” he said. “You can look into sincerity, and whether someone is religious, but you can’t say, ‘Your religious belief is not legitimate.’”
Igor Raykin, a Colorado civil rights attorney who is representing about a dozen teachers who sued Westminster Public Schools over its vaccine mandate, said he expects the U.S. Supreme Court to eventually take up the issue.
“I think the 10th Circuit has taken a more wait-and-see approach,” he said. “They’re not as deferential to the people who are bringing these lawsuits as, say, the Fifth Circuit. They’re going more slowly and I think what’s happening is that a lot of these courts, they’re going to wait for guidance from the Supreme Court.”
The U.S. Supreme Court in January 2022 upheld a federal vaccine mandate for health care workers but struck down a federal requirement that employees at large businesses either get vaccinated or wear a mask and test regularly.
“I think some of these cases will get to the Supreme Court; I have no idea whatsoever where the Supreme Court will go because the court has been going a bit back and forth on this,” Rubinstein Reiss said. “It so far hasn’t been receptive to these cases.”
Still, three Supreme Court justices have been very sympathetic to claims against vaccine mandates: Neil Gorsuch, Samuel Alito and Clarence Thomas, Rubinstein Reiss said.
She added that employers who are implementing vaccine mandates or who want to legally strengthen an existing mandate can either decide not to offer religious exemptions at all because of the dangers of regulating and policing those exemptions, or create a rigorous and fair process to evaluate religious exemption claims.
“You can evaluate religious claims for sincerity, you just have to be careful how you do it,” she said.
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