# Ferrelli v. State of New York Unified Court System

> District Court, N.D. New York · March 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10314579

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314579

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CHERYL FERRELLI et al.,

Plaintiffs,

-against- 1:22-CV-0068 (LEK/CFH)

STATE OF NEW YORK UNIFIED
COURT SYSTEM et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs, employees of the New York Unified Court System (“NYUCS”), bring this
action for injunctive, declaratory, and monetary relief against Defendants NYUCS, Nancy Barry
in her official capacity as Chief of Operations for NYUCS, and Justin Barry in his official
capacity as Chief of Administration for NYUCS. See Dkt. No. 1 (“Complaint”). Plaintiffs
challenge the vaccine mandate issued by NYUCS in September 2021 and seek to enjoin its
enforcement. Presently before the Court is Plaintiffs’ request for a temporary restraining order
and preliminary injunction. Dkt. No. 4-1 (“Plaintiffs’ Memorandum”). Defendants have filed
their response, Dkt. Nos. 11 (“Response”), and Plaintiffs have filed their reply. Dkt. No. 18
(“Reply”).
Vaccines are a critical tool for combatting the COVID-19 pandemic and saving lives.
They help to protect not only each vaccinated individual, but also the community as a whole. In
imposing a vaccine mandate, NYUCS seeks to protect the health and wellbeing of its employees
and all those who utilize the state court system. At the same time, protection of community
health must coexist with the respect for religious liberty embedded in the First Amendment of
the United States Constitution. Plaintiffs recognize the need to address COVID-19, proposing
measures such as masking, testing, and remote work as an alternative to vaccination. See Pl.s’
Mem. at 17. Defendants recognize the need to respect religious liberty, having granted over 500
requests for religious exemptions from the vaccine mandate. Dkt. No. 12-2 ¶ 11. The parties

disagree, however, about whether Defendants have followed a proper procedure for balancing
these important interests. That is the question this Court must decide.
For the reasons stated below, Plaintiffs’ request for a temporary restraining order and
preliminary injunction is denied.
II. BACKGROUND

A. The Parties
Defendant NYUCS is the Court system for the state of New York, including thirteen
judicial districts across the state’s 62 counties. Dkt. No. 12-1 ¶ 5. It employs nearly 1,300 judges
and 15,650 non-judicial employees across more than 300 separate sites. Id. ¶ 6. Defendant Nancy
Barry is the Chief of Operations for NYUCS and Defendant Justin Barry is the Chief of
Administration for NYUCS. Compl. ¶¶ 7, 8.
Plaintiffs Cheryl Ferrelli, Jeanmarie Trojan, Eileen Creighton, Linda Rukavina, and
Josette Altobelli are employees of NYUCS. Id. ¶¶ 1–5, 11. Ferrelli, Trojan, Creighton, and
Rukavina are court reporters residing in Suffolk County, New York, and Altobelli is a senior law
reporting assistant residing in Albany County, New York. Id. ¶¶ 1–5, 15, 25, 35, 45, 55.
B. The COVID-19 Pandemic
SARS-COV-2 (“COVID-19” or “COVID”) is a deadly virus that has killed over 950,000
Americans1 and over 54,000 New Yorkers2 since March of 2020. The first vaccine for COVID-
19 received emergency use authorization from the Food and Drug Administration (“FDA”) on
December 11, 2020,3 and final approval on August 23, 2021.4 Today, 85.7% of New Yorkers
over the age of 18 and 75.7% of all New Yorkers are fully vaccinated.5 Fully-vaccinated New

Yorkers have about a 76% lower chance of being diagnosed with COVID-19 and between a
90.1% and 95.9% lower chance of being hospitalized with COVID-19 than unvaccinated New
Yorkers.6
C. NYUCS’s COVID-19 Response
In March 2020, the initial outbreak of COVID-19 in New York led NYUCS to suspend
nearly all in-person operations. See Dkt. No. 12-1 ¶¶ 15–18. NYUCS also postponed all jury
trials and non-essential functions. Id. ¶ 16. In May 2020, NYUCS returned to modified in-person

1 See COVID-19 Dashboard, Johns Hopkins University of Medicine, found at
https://coronavirus.jhu.edu/map.html (last viewed March 7, 2022).

2 See COVID-19 Fatalities, New York State Department of Health, found at
https://coronavirus.health.ny.gov/fatalities-0 (last viewed March 7, 2022).

3 Press Release, U.S. Food and Drug Administration, FDA Takes Key Action in Fight
Against COVID-19 By Issuing Emergency Use Authorization for First COVID-19 Vaccine
(Dec. 11, 2020), https://www.fda.gov/news-events/press-announcements/fda-approves-first-
covid-19-vaccine.

4 Press Release, U.S. Food and Drug Administration, FDA Approves First COVID-19
Vaccine (Aug. 23, 2021), https://www.fda.gov/news-events/press-announcements/fda-approves-
first-covid-19-vaccine.

5 See Vaccination Progress to Date, New York State Department of Health, found at
https://coronavirus.health.ny.gov/vaccination-progress-date (last viewed March 7, 2022).

6 See COVID-19 Breakthrough Data, New York State Department of Health, found at
https://coronavirus.health.ny.gov/covid-19-breakthrough-data (last viewed March 7, 2022).
staffing. Id. ¶ 24. With increasing vaccination rates and decreasing rates of COVID-19 infection,
NYUCS announced a return to 100% on-site staffing in May 2021. Id. ¶ 27. However, NYUCS
was unable to completely eliminate the COVID-19 risk associated with in-person operations and
determined that widespread use of vaccines provided the only hope of returning to near-normal

operations. Id. ¶ 29.
In August 2021, NYUCS revised its mask policy to allow vaccinated employees to stop
wearing masks. Id. ¶ 30. At that time only 30% of NYUCS judges and employees were fully
vaccinated. Id. NYUCS encouraged its employees to get vaccinated by offering incentives such
as compensatory time off, however a significant number of judges and employees still did not
report vaccination. Id. In late summer 2021, as NYUCS attempted to return to full capacity for
criminal trials and to address the backlog of cases created by previous COVID-19 measures, the
delta variant caused a new surge in cases. See id. ¶¶ 32–33. On September 7, following FDA
approval of the Pfizer vaccine on August 23, 2021, NYUCS implemented a mandatory testing
program, requiring all unvaccinated judges and employees to submit proof of weekly COVID-19

tests. Id. ¶¶ 34, 36. Three weeks later, on September 27, 2021, NYUCS’s vaccine mandate went
into effect. Id. ¶ 36.
D. The Vaccine Mandate
NYUCS’s vaccine mandate required all judges and employees to get vaccinated, but
included exemptions for those with valid religious or medical reasons. Id. ¶ 40. Employees in the
process of seeking an exemption were not required to get vaccinated and faced no disciplinary or
other adverse actions in the meantime. Id. Employees who failed to get vaccinated or obtain an
exemption would lose access to NYUCS facilities and face disciplinary action including lost
wages, lost benefits, suspension, or termination. Id. ¶ 41. Justin Barry states that
[w]ithout the UCS’s policy requiring vaccination, I have grave
concerns that more people—including court employees and users
of the courts—will get sick and potentially die from COVID-19.
That would, in turn, threaten the public health and safety and the
effective operation of the court system, through (i) an increase in
breakthrough infections in vaccinated employees, (ii) vulnerability
to future variants of COVID-19, (iii) a potential brain drain of
employees who want to work in an environment where their
colleagues are vaccinated but who will decline to work in person if
they know that the vaccine policy is not being uniformly enforced,
and (iv) the continued limited availability of criminal trials, which
makes it difficult for the courts to provide a forum to vindicate
litigants constitutional rights.
Id. ¶ 43. Justin Barry further notes that
[u]nlike other private and many public entities, federal and state
constitutional concerns—including, but not limited to, access to
justice generally, criminal due process rights, and the right to a
public trial—severely limit UCS’s authority to require proof of
vaccination status from litigants, court users, and the general
public before granting access to UCS courthouses.

Dkt. No 12-2 ¶ 10.

E. The Exemption Process
NYUCS put in place an 11-member Vaccination Exemption Review Committee (the
“Committee”) to implement both medical and religious exemptions from its vaccination
requirement. Dkt. No. 12. ¶ 8. The Committee has implemented the UCS’s vaccination
exemption program in consultation with its in-house and outside counsel and with the unions
representing employees. Id. ¶ 9. As of February 2, 2022, NYUCS had granted 536 requests for
religious exemptions and denied 363. Id. ¶ 11. It had also granted 82 requests for medical
exemptions and denied 166. Id. ¶ 12.
The Committee created a two-page form for employees to use to request religious
exemptions. Id. ¶ 13. The first page of the form askes the applicant to affirm the truth of several
statements about the applicant’s beliefs and willingness to comply with certain additional safety
measures. Id. ¶ 14; see also Dkt. No. 12-3 at 3. The second page states:
In the space below, please provide a personal written and signed
statement detailing the religious basis for your objection,
explaining why you are requesting this religious exemption, the
religious principle(s) that guide your objections to vaccination, and
the religious basis that prohibits the COVID-19 vaccination.
Attach additional pages, if needed, along with any documentation
you submit in support of your request.

Dkt. No. 12. ¶ 15; Dkt. No. 12-3 at 4. After receiving many completed application forms, the
Committee found the two most common reasons for seeking a religious exemption were (1)
concern about the connection between COVID-19 vaccines and fetal cells, and (2) concern about
the sanctity or purity of the applicant’s body. Dkt. No. 12. ¶ 16. Because the committee often
found the information in applicants’ personal statements insufficient to assess the basis for and
sincerity of the belief, it created a supplemental form. Id. ¶¶ 17–18. Section A of the
supplemental form focuses on concerns about use of fetal cells, while Section B of the form
focuses on concerns about the sanctity or purity of the body. Id. ¶ 18. In particular, Section A
inquires as to applicants’ use of other medications and vaccinations that were tested using fetal
cell lines, and requests explanations of inconsistencies in past or present use of such products.
Dkt. No. 12-4 at 2–4. Section B requests information about other medicines, medical treatments,
vaccines and/or foods from which the applicant abstains due to her religious beliefs; when she
began abstaining; and why her faith requires such abstention. Id. at 5–6. The vast majority of
applicants for religious exemptions were required to complete the supplemental form. Dkt. No.
12. ¶ 19.
The Committee is divided into two working groups, each of which reviews applications.
Id. ¶ 20. A quorum of at least three members is required at each working group review meeting,
and a majority of those present is required to grant or deny an application. Id. Any application
denied by a working group goes to the full committee for further review and can only be denied
by a majority of a quorum of five members of the full committee. Id. ¶ 21. All identifying
information about each applicant is redacted prior to committee consideration of submitted

materials. Id. ¶ 21. Justin Barry states:
the review is solely to determine whether the applicant’s
opposition to being vaccinated is based on a sincerely held
religious belief. Applications are not denied based on what the
belief is or the source of the belief, or whether the applicant
identifies with one particular religion or another. Employees
professing adherence to varying religions or faiths have been
granted exemptions. The Committee did not in any way seek to
assess the validity of any of plaintiffs’ religious beliefs.

Id. ¶ 23.

Upon denial of an application, the committee sends the applicant a notice stating that the
request was denied and that the applicant must submit proof of the first dose of a COVID-19
vaccination within ten days. Id. ¶ 24. If an employee fails to provide such notice within ten days,
the employee’s manager informs the employee that proof of vaccination must be submitted by
the close of business the following day. Id. ¶ 25. An employee who still does not comply is
declared “unfit” for service, barred from continuing to work, and required to charge the time
against any accrued compensatory time or annual leave. Id. Once that time runs out, the
employee is placed on “lost time.” Id. Employees on lost time do not receive pay but continue to
receive benefits until notified otherwise by the New York State Civil Service Commission. Id.
As of February 4, 2022, no employees had been terminated following denial of a religious
exemption. Id.
F. Plaintiffs’ Applications and Denial
On or about September 10, 2021, each plaintiff was informed of the COVID-19 vaccine
mandate by Nancy Barry and Justin Barry. Compl. ¶¶ 16, 26, 36, 46, 56. Each plaintiff
completed the initial two-page religious exemption application. Id. ¶ 13. All agreed to undertake
the masking, social distancing, and testing required to obtain an exception. Id. Each plaintiff also

submitted a personal statement explaining that she is a devout Christian and that receiving a
COVID-19 vaccine is inconsistent with her religious beliefs. Id. ¶¶ 17, 27, 37, 47, 57. On or
about November 18, 2021, each Plaintiff was asked to complete the supplemental form. Id. ¶¶
19, 29, 39, 49, 59. Ferrelli, Trojan, Creighton, and Rukavina declined to provide any
supplemental information and instead submitted a letter from their counsel asserting that the
request for additional information was unlawful. Dkt. No. 12. ¶ 27. Altobelli responded to most
of the questions on the supplemental form. Dkt. No. 4-8. Altobelli also applied for and was
granted a temporary medical exemption until February 25, 2022. Dkt. No. 12. ¶ 28. Rukavina has
an outstanding medical exemption request that has not yet been decided. Dkt. No. 12. ¶ 29.
On or about January 6, 2022, each plaintiff was informed that her application for a

religious exemption had been denied and was not provided with a statement of reasons. Compl.
¶¶ 22, 32, 42, 52, 62. Each Plaintiff was directed to submit proof of at least one vaccine dose by
January 18, 2022, and to continue receiving weekly COVID-19 tests until fully vaccinated. Id. ¶¶
24, 34, 44, 54, 64; Dkt. Nos. 9, 17, 25, 34, 42.
Justin Barry states that “[t]he applications of plaintiffs Ferrelli, Trojan, Creighton, and
Rukavina were not rejected because their religious beliefs were disfavored compared to others,
but because they refused to submit the Supplemental Form.” Dkt. No. 12 ¶ 30. Similarly, he
states that “Altobelli’s application for a religious exemption also was not rejected because her
religious views were disfavored. Rather, the Committee decided that her responses to the
Supplemental Form did not support her claim that her refusal to receiving (sic) the COVID-19
vaccine was based on a sincerely held religious belief.” Id. ¶ 31. He further notes that “UCS has
granted many exemption applications from applicants who, like plaintiffs, have explained that
they seek an exemption due to their concern about the connection between fetal cell lines and the

COVID-19 vaccine and/or because of a belief in the sanctity and purity of their body.” Id. ¶ 32.
G. Procedural History
On January 25, 2022, Plaintiffs, filed their Complaint in this matter arguing that both
Defendants’ vaccine mandate as a whole, and the religious exemption process in particular,
violated their First Amendment right to freedom of religion. See generally Compl. On January
26, 2021, Plaintiffs filed the present motion requesting a temporary restraining order and
preliminary injunction. See Dkt. No. 4. On February 22, 2022, the case was stayed, with the
consent of the parties, pending a decision from the Second Circuit in Kane, et al. v. de Blasio, et
al., No. 21-3047 (2d Cir. 2021) and Keil, et al. v. City of New York, et al., No. 21-3043 (2d Cir.
2021), or until two weeks had elapsed. Dkt. No. 22. Plaintiffs also agreed to have the Court
resolve their combined motions for a temporary restraining order and for a preliminary
injunction simultaneously with a single order. Id.

III. LEGAL STANDARD
The standard that governs a request for a temporary order is the same as that governing a
request for a preliminary injunction. Stagliano v. Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264,
272 (N.D.N.Y. 2015) (citing Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. N.Y.
Shipping Ass’n, 965 F.2d 1224, 1228 (2d Cir. 1992)). Where “a preliminary injunction will
affect government action taken in the public interest pursuant to a statute or regulatory scheme,
the moving party must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood
of success on the merits, and (3) public interest weighing in favor of granting the injunction.”
Hopkins Hawley LLC v. Cuomo, 518 F. Supp. 3d 705, 713 (S.D.N.Y. 2021) (quoting Friends of
the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016)).
IV. DISCUSSION

A. Defendants’ Procedural Arguments
To start, the Court construes Plaintiff’s request for a temporary restraining order and
preliminary injunction as seeking solely injunctive relief and seeking that relief solely against
Defendants Nancy Barry and Justin Barry in their official capacities. See Reply at 8–10
(Plaintiff’s clarifying that their Motion does not seek relief against NYUCS nor any monetary
relief). Furthermore, the Court need not consider Defendants’ argument that Plaintiff Altobelli
lacks standing because “where, as here, multiple parties seek the same relief, ‘the presence of
one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.’”
Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109
(2d Cir. 2017) (quoting Rumsfeld v. Forum of Acad. and Inst. Rights, Inc., 547 U.S. 47, 52 n.2

(2006)).
Thus, Defendants’ only procedural argument meriting additional analysis is their
contention that Nancy Barry and Justin Barry’s roles in enforcing the mandate are not sufficient
to qualify them for the Ex parte Young exception to Eleventh Amendment immunity. See Resp.
at 14. Because, as described below, the Court finds Plaintiffs unlikely to succeed on the merits, it
declines at this time to address whether Nancy Barry and Justin Barry are the proper defendants.
See Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 221 (1985) (“Given our resolution of
the case, we need not consider the question whether the relief sought by Ewing would be
available under Eleventh Amendment principles.”); Edwards v. Mejia, No. 11-CV-9134, 2013
WL 1092978, at *5 (S.D.N.Y. Mar. 15, 2013) (declining to consider Eleventh Amendment
argument because plaintiff’s claim failed on other grounds).
B. Likelihood of Success on the Merits
Plaintiffs contend that both the vaccine mandate as a whole, and the religious exemption
process as applied to them, represent violations of their First Amendment right to freedom of
religion. See generally Pl.s’ Mem. The Court evaluates each in turn.

1. The Vaccine Mandate as a Whole
In general, “the Free Exercise Clause ‘does not relieve an individual of the obligation to
comply with a valid and neutral law of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or proscribes).’” Cent. Rabbinical Cong. of
U.S. & Canada v. New York City Dep’t of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir.
2014) (quoting Employment Division v. Smith, 494 U.S. 872, 879 (1990)). “Such laws are
subject to rational basis review.” Id. By contrast, where “challenged restrictions are not ‘neutral’
and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be
‘narrowly tailored’ to serve a ‘compelling’ state interest.” Roman Cath. Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 67 (2020).
In evaluating whether NYUCS’s vaccine mandate is neutral and generally applicable, the

Second Circuit’s recent decision in Kane v. De Blasio, 19 F.4th 152, 160 (2d Cir. 2021) is
particularly instructive. In Kane, New York City imposed a vaccine mandate on individuals
working in New York City schools. 19 F.4th at 158. The mandate initially contained no
provision for medical or religious exemptions, but after the United Federation of Teachers filed a
formal objection, an independent arbitrator set forth a process and standards for granting such
exemptions. Id. at 160. The exemption process involved requirements including that the leader of
an applicant’s religious organization not have spoken in support of vaccines, and that the
applicant produce a letter from a religious official. Id. As discussed below, the Second Circuit
struck down this process. See id. at 176. Nonetheless, the Court found the vaccine mandate as a
whole to be neutral and generally applicable. Id. at 164–66.
To evaluate neutrality, the Court first considered whether the mandate was facially

discriminatory. Id. at 164. Because the mandate applied “to ‘all D[epartment of Education
(“DOE”)] staff,’ as well as City employees and contractors of DOE and the City who work in
DOE school settings,” and did “not single out employees who decline[d] vaccination on religious
grounds” the Court found it facially neutral. Id. In addition, the Court considered whether the
mandate ran “afoul of the neutrality principle [by] ‘target[ing] religious conduct for distinctive
treatment,’” but found proffered evidence of non-neutrality, including comments by the mayor,
to be unconvincing. Id. at 164–65 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 546 (1993)).
In evaluating whether the mandate was generally applicable, the Kane court noted that
under Smith, 494 U.S. 872 (1990), a law is not generally applicable if either “it invites the

government to consider the particular reasons for a person’s conduct by providing a mechanism
for individualized exemptions;” or “it prohibits religious conduct while permitting secular
conduct that undermines the government’s asserted interests in a similar way.” Kane, 19 F.4th at
165 (quoting Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868, 1871 (2021)).
Furthermore, the Court held that a mandate is not individualized merely because it includes
express exceptions, rather, to demonstrate that a law is not generally applicable “there must be
some showing that the exemption procedures allow secularly motivated conduct to be favored
over religiously motivated conduct.” Id. Concluding that there was no evidence of such
favoritism, the court found the overall vaccine mandate to be neutral and generally applicable,
warranting only rational basis review, a standard which the mandate easily satisfied. Id. at 166.
The reasoning of the Kane court applies directly to the case at hand.7 First, the vaccine
mandate is facially neutral because it applies to all judges and employees of the state court

system, and in no way singles out those who decline vaccination on religious grounds. See Dkt.
No. 12-1 ¶ 36. While in Kane, Plaintiffs argued that the mayor’s statements rendered the
mandate non-neutral, here there is no similar contention. As such, the Court finds the mandate to
be neutral.
Similarly, the reasoning of Kane applies with regard to general applicability. Under
Kane, the mandate does not cease to be generally applicable merely because it contains an
exemption process, rather it becomes individualized only upon a showing that “the exemption
procedures allow secularly motivated conduct to be favored over religiously motivated conduct.”
19 F.4th at 165. Here, there is no such evidence. Indeed, the only form of secular exception
available is the medical exemption, and Defendants have granted 60% of requests for religious

exemptions while granting only 33% of requests for medical exemptions. Dkt. No. 12. ¶¶ 11–12.
As such, the mandate is generally applicable and subject to rational basis review.
As in Kane, the mandate easily meets the rational basis standard. Rational basis review
requires only that Defendants have chosen a “means for addressing a legitimate goal that is
rationally related to achieving that goal.” Kane, 19 F.4th at 166. Preventing the spread of
COVID-19 within the state court system, both to protect health and promote efficient access to

7 The Court notes that “[i]t is settled law that a district court in this Circuit is bound by
[Second Circuit] decisions unless and until they have been overruled by the Supreme Court or
the law is otherwise changed. Medwig v. Long Island R.R., No. 06-CV-2568, 2007 WL
1659201, at *4 (S.D.N.Y. June 6, 2007).
justice, is a legitimate state goal and requiring employees to become vaccinated is rationally
related to achieving that goal. See, e.g., id. (holding that a vaccination requirement for school
teachers “plainly satisfies this standard”); We The Patriots USA, Inc. v. Hochul, 17 F.4th 266,
290 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021) (holding that a vaccination

requirement for healthcare workers “easily meets that standard”).
2. The Religious Exemption Process as Applied to Plaintiffs
As demonstrated in Kane, just because a vaccine mandate passes constitutional muster
does not mean that its religious exemption process, as applied, is similarly valid. In Kane, the
Court found that the religious exemption process created by the independent arbitrator was
neither neutral nor generally applicable. 19 F.4th at 168–69. The court found the exemption
process non-neutral because “[d]enying an individual a religious accommodation based on
someone else’s publicly expressed religious views—even the leader of her faith—runs afoul of
the Supreme Court’s teaching that ‘[i]t is not within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of
those creeds.’” Id. at 168 (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)). The
court found the process not to be generally applicable because Plaintiffs presented evidence that

the decisionmakers sometimes “strictly adhered to the Accommodation Standards,” but “[o]ther
times . . . apparently ignored them.” Id. at 169.
Here, in arguing for strict scrutiny, Plaintiffs rely on the Supreme Court decision in
Fulton, which states: “A law is not generally applicable if it invites the government to consider
the particular reasons for a person’s conduct by creating a mechanism for individualized
exemptions.” Pl.s’ Mem. at 8 (quoting Fulton, 141 S. Ct. at 1877). In addition to the passage
quoted by Plaintiffs, the Fulton Court held that “[t]he creation of a formal mechanism for
granting exceptions renders a policy not generally applicable, regardless whether any exceptions
have been given, because it ‘invite[s]’ the government to decide which reasons for not
complying with the policy are worthy of solicitude.” 141 S. Ct. at 1879. This language could
plausibly be interpreted as requiring that strict scrutiny apply to every religious exemption
process. However, the Court doubts such an interpretation for two reasons. First, such an

interpretation would create a perverse incentive for government entities to provide no religious
exemption process in order to avoid strict scrutiny. See We The Patriots, 17 F.4th at 281–90
(finding a vaccine mandate without a religious exemption process subject to rational basis
review). Second, and more importantly, when read in context, each passage of Fulton quoted
above refers to exemption processes that provide the decisionmaker with discretion to favor
secular justifications for exemptions over religious justifications. 141 S. Ct. at 1877–79. The
Fulton Court emphasized that “[a] law . . . lacks general applicability if it prohibits religious
conduct while permitting secular conduct that undermines the government’s asserted interests in
a similar way. Id. at 1877. The Fulton Court also cited the example of Sherbert v. Verner, 374
U.S. 398 (1963), where a Seventh-day Adventist was denied unemployment benefits because her

refusal to work on Saturdays did not qualify as “good cause” for failing to accept available
suitable work. Id. Finally, as Plaintiffs note in their own memorandum, the Fulton Court found
that where “a system of individual exemptions exists, ‘the government may not refuse to extend
that system to cases of religious hardship without a compelling reason.’” Pl.s’ Mem at 8 (quoting
Fulton, 141 S. Ct. at 1877).
Here, unlike in Fulton, Defendants have not created a system of individualized
exemptions and refused to extend it to religious hardships. Rather, they have created a system of
religious exemptions and refused to extend it to Plaintiffs based on responses, or lack thereof, to
a supplemental form.8 See Dkt. No. 12 ¶¶ 30–31. Since the Court does not find the mere
existence of a religious exemption process to trigger strict scrutiny, it must consider whether the
specific religious exemption process created and applied by Defendants was neutral and
generally applicable.

While Plaintiffs allege that Defendants have favored some religious beliefs over others,
Pl.s’ Mem at 8, they have pled no facts to support this contention. Defendants deny this assertion
and note that exemptions have been granted to many employees who have requested exemptions
on the same bases as Plaintiffs. Dkt. No. 12 ¶¶ 30–32. Indeed, Plaintiffs Ferrelli, Trojan,
Creighton, and Rukavina’s applications for religious exemptions were denied, not because of
their professed beliefs, but because they failed to complete the supplemental form. Thus, their
only remaining argument for application of strict scrutiny is that use of the supplemental form
itself was not neutral. See Troogstad v. The City of Chicago, No. 21-CV-5600, *25 (N.D. Ill.
Nov. 24, 2021) (“Because every denial before the Court at the present time fails to comply with
the basic requirements of the City Vaccination Policy’s religious exemption process, these

denials do not raise free exercise concerns.”). It is not clear to the Court that Plaintiffs have even
raised such arguments in their motion. See generally Pl.s’ Mem. Regardless, to the extent such
arguments have been raise, the Court finds them unpersuasive. While Plaintiffs describe the
supplemental form as NYUCS’s “attempt[] to interrogate Plaintiffs through follow up questions
by first posing a set of purported factual predicates about the vaccine and then asking a series of

8 The Court further notes that while in Fulton a commissioner was given complete
discretion in granting exceptions, 141 S. Ct. at 1878, here Justin Barry described the review
process as “solely to determine whether the applicant’s opposition to being vaccinated is based
on a sincerely held religious belief.” Dkt. No. 12 ¶ 23. Thus, unlike in Fulton, the
accommodation process clearly defined the sole valid justification for an accommodation and did
not “invite the government to decide which reasons for not complying with the policy are worthy
of solicitude.” 141 S. Ct. at 1879 (cleaned up).
invasive questions as to Plaintiffs’ personal religious beliefs,” id. at 11, the Court perceives no
such invidious scheme. “[R]egulations that are hostile to the religious beliefs of affected
citizens” or “that pass[] judgment upon or presuppose[] the illegitimacy of religious beliefs and
practices” are not neutral. Kane, 19 F.4th at 168 (quoting Masterpiece Cakeshop, Ltd. v.

Colorado C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018)). Here though, the supplemental form
merely provides factual information about the use of fetal cell lines in creating vaccines, asks
applicants questions about their use of other products tested on such cell lines, and provides an
opportunity to explain how their beliefs may have changed over time or how their beliefs
distinguish the COVID-19 vaccines from other products. See generally Dkt. No. 12-4. This line
of questioning does not presuppose the illegitimacy of concerns about use of fetal cell lines; it
merely seeks to determine whether such concerns are the applicant’s true motivation for seeking
an exemption.9 As such, it does not undermine the neutrality of the exemption process.
Unlike the other plaintiffs, Plaintiff Altobelli did submit a supplemental form but was
nonetheless denied an exemption. See Resp. at 9; Dkt. No. 4-8. However, aside from generic and

unsupported allegations that Defendants favored some religious beliefs over others, Plaintiff’s
motion raises no argument that Altobelli’s request was denied on invalid grounds. As such, given
the analysis above, the Court sees no basis for finding that Altobelli’s denial triggers strict
scrutiny.

9 If an applicant’s past actions have demonstrated a concern about the use of such cell
lines, that provides strong evidence of the applicant’s sincerely held belief. If not, the applicant is
provided with opportunities to further explain her beliefs. Of course, the information an applicant
provides could be used to discriminate, but that is true of the results of any factual inquiry. Here,
Plaintiffs have pled no facts tending to show that such discrimination occurred. Ferrelli, Trojan,
Creighton, and Rukavina have not alleged that they were denied accommodation because their
supplemental form answers demonstrated inconsistent religious beliefs. Indeed, all four were
denied because they refused to complete the form.
Finally, even assuming that strict scrutiny applies to Defendants’ religious exemption
process, the Court finds the process to satisfy that rigorous test. Strict scrutiny requires that the
exemption process be narrowly tailored to serve a compelling state interest. Roman Cath.
Diocese of Brooklyn, 141 S. Ct. at 67. Here, there is little doubt that stemming the spread of

COVID-19 within the New York State court system is a compelling interest. See, e.g., id.
(“Stemming the spread of COVID–19 is unquestionably a compelling interest”); Ass’n of Jewish
Camp Operators v. Cuomo, 470 F. Supp. 3d 197, 224 (N.D.N.Y. 2020) (“Multiple courts that
have considered the issue have concluded that controlling the spread of COVID-19 counts as a
compelling interest.”) (internal quotation marks omitted). Thus, the question for the Court is
whether Defendants’ exemption process, including its requirement to fill out the initial and
supplemental forms, was narrowly tailored to the state’s compelling interest.
In Kane, the Second Circuit found that narrow tailoring was not met because “denying
religious accommodations based on the criteria outlined in the Accommodation Standards, such
as whether an applicant can produce a letter from a religious official, is not narrowly tailored to

serve the government’s interest in preventing the spread of COVID-19.” 19 F.4th at 169. But
while the state is not entitled to evaluate the legitimacy of religious beliefs, courts have made
clear that the state is permitted to assess whether a belief is sincerely held and religious in nature.
See, e.g., United States v. Seeger, 380 U.S. 163, 185 (1965) (“[W]hile the ‘truth’ of a belief is
not open to question, there remains the significant question whether it is ‘truly held.’ This is the
threshold question of sincerity which must be resolved in every case. It is, of course, a question
of fact—a prime consideration to the validity of every claim for exemption.”); Kane v. de Blasio,
No. 21-CV-7863, 2021 WL 5909134, at *5 (S.D.N.Y. Dec. 14, 2021) (finding a request for
supplemental information was “geared towards developing a factual basis for reaching a
conclusion as to whether any particular Plaintiff’s beliefs are sincerely held and religious in
nature, both of which are permissible inquiries and questions of fact”). Here, although the Court
acknowledges a fine line between probing the sincerity of a belief and weighing that belief’s
internal consistency, the Court finds that a limited factual inquiry of the type pursued by

Defendants is narrowly tailored to stem the spread of COVID-19 because it enables the state to
distinguish between sincerely held religious beliefs and those beliefs that are either contrived or
not religious in nature. Indeed, if Defendants’ carefully designed exemption process is not
narrowly tailored to grant exemptions only to those with sincerely held religious objections, it is
difficult for the Court to conceive of an exemption process that would be.
As such, even if Defendants’ exemption process is subject to strict scrutiny, the Court
finds Plaintiffs unlikely to succeed on the merits. Because likelihood of success on the merits is a
necessary precondition to the granting of a temporary restraining order or preliminary injunction,
Plaintiff’s request must be denied.
C. Irreparable Harm and the Public Interest
Because the Court has not found a likelihood of success on the merits, it need not
consider whether Plaintiffs have shown irreparable harm nor whether the public interest weighs

in favor of granting an injunction. See, e.g., LoFranco v. Port Auth. of New York & New Jersey,
No. 12CV-8664, 2013 WL 139637, at *3 (S.D.N.Y. Jan. 11, 2013) (“[B]ecause LoFranco is
unlikely to succeed on the merits, this Court need not consider whether he has shown a
likelihood of irreparable harm.”); McCluskey v. Spitzberg, No. 20-CV-4015, 2021 WL 3823672,
at *2 (2d Cir. Aug. 27, 2021) (“Because McCluskey’s failure to establish a likelihood of success
on the merits suffices to dispose of this appeal, we need not consider the district court’s
additional conclusion that he had not established irreparable harm.”)
V. CONCLUSION
Balancing public health and religious liberty is a difficult endeavor and the law in this
area is evolving rapidly. While Plaintiffs’ request for a temporary restraining order and
preliminary injunction is denied at this time, the Court will entertain a renewed motion if
warranted by new developments in Second Circuit or Supreme Court case law.
Accordingly, it is hereby:
ORDERED, that Plaintiffs’ request for a temporary restraining order and preliminary
injunction, Dkt. No. 4, is hereby DENIED; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED: March 7, 2022 “2. )
Albany, New York
LAWRENCE E. KAHN
United States District Judge

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314579. Public record. Not legal advice.