Petition for Writ of Certiorari — Alicia Lowe, et al., Petitioners v. Janet T. Mills, Governor of Maine, et al.

Supreme Court briefAug 15, 2023

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No. ________

IN THE

Supreme Court of the United States

ALICIA LOWE, JENNIFER BARBALIAS, GARTH BERENYI,

DEBRA CHALMERS, NICOLE GIROUX, ADAM JONES,

NATALIE SALAVARIA,

Petitioners,

JANET T. MILLS, in her official capacity as Governor of

the State of Maine, JEANNE M. LAMBREW, in her

official capacity as Commissioner of the Maine

Department of Health and Human Services, NANCY

BEARDSLEY, in her official capacity as Acting Director

of the Maine Center for Disease Control and

Prevention, MAINEHEALTH, GENESIS HEALTHCARE OF

MAINE, LLC, MAINEGENERAL HEALTH, NORTHERN

LIGHT EASTERN MAINE MEDICAL CENTER,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit

PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver

Horatio G. Mihet

Counsel of Record

Daniel J. Schmid

Anita L. Staver

Liberty Counsel

P.O. Box 540774

109 Second St., NE

Orlando, FL 32854

Washington, D.C. 20002

(407) 875-1776

(202) 289-1776

Counsel for Petitioners

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED

“Reliance on state statutes to excuse noncompliance with federal law is simply unacceptable

under the Supremacy Clause.” Barber ex rel. Barber

v. Colorado Dep’t of Revenue, 562 F.3d 1222, 1233

(10th Cir. 2009). As Justice Gorsuch noted during his

tenure on the Tenth Circuit, “a state law at odds with

a valid Act of Congress is no law at all. Accordingly,

the demands of the federal [antidiscrimination law]

do not yield to state laws that discriminate against

the [protected class]; it works the other way around.”

Id. at 1234 (Gorsuch, J., concurring) (emphasis

added). Simply put, “the Supremacy Clause of the

Constitution requires a different order of priority. A

discriminatory state law is not a defense to liability

under federal law; it is a source of liability under

federal law.” Id. (quoting Quinones v. City of

Evanston, 58 F.3d 275, 277 (7th Cir. 1995)).

The

First

Circuit’s

decision

below

constitutionally inverted this analysis. The First

Circuit held that following Title VII’s demands to

provide reasonable accommodations for sincerely held

religious beliefs is an undue hardship when following

Title VII “would have exposed the Providers to

penalties for violating [state law].” (App. 37a). The

First Circuit’s decision below reverses the supremacy

of federal over state law. The questions presented are:

(1)

Whether compliance with state laws

directly contrary to Title VII’s requirement to provide

a reasonable accommodation may serve as an undue

hardship justifying an employer’s noncompliance

with Title VII of the Civil Rights Act of 1964.

(2)

Whether a state law that requires

employers to deny without any consideration all

requests by employees for a religious accommodation,

contrary to Title VII’s religious nondiscrimination

provision, is preempted by Title VII and the

Supremacy Clause.

iii

PARTIES

Petitioners are Alicia Lowe, Jennifer

Barbalias, Garth Berenyi, Debra Chalmers, Nicole

Giroux, Adam Jones, and Natalie Salavaria.

Respondents are MaineHealth, Genesis Healthcare of

Maine, LLC, MaineGeneral Health, and Northern

Light Eastern Maine Medical Center. Additional

Parties to the proceedings below are Janet T. Mills, in

her official capacity as Governor of the State of Maine,

Jeanne M. Lambrew, in her official capacity as

Commissioner of the Maine Department of Health

and Human Services, Nancy Beardsley, in her official

capacity as Acting Director of the Maine Center for

Disease Control and Prevention. 1

DIRECTLY RELATED PROCEEDINGS

ALICIA LOWE, et al. v. MILLS, et al., No. 22-1710,

(1st Cir. May 25, 2023), Opinion Affirming District

Court’s Dismissal of First Amended Verified

Complaint is reprinted in the Appendix at 1a-30a.

ALICIA LOWE, et al. v. MILLS, et al., No. 22-1710,

(1st Cir. May 25, 2023), Judgment is reprinted in the

Appendix at 41a-42a.

ALICIA LOWE, et al. v. MILLS, et al., No. 1:21-cv242-JDL, (D. Me. Aug. 18, 2022), Opinion and Order

1 Plaintiffs did not assert Title VII claims against the Maine

government officials, and thus the Additional Parties are not

subject to the claims asserted in this Petition.

Dismissing First Amended Verified Complaint is

reprinted in the Appendix at 43a-84a.

JOHN DOES 1-3, et al. v. MILLS, et al., No. 21-717,

(U.S. Feb. 22, 2022), Order Denying Petition for Writ

of Certiorari is reprinted in the Appendix at 85a.

JOHN DOES 1–3, et al. v. MILLS, et al., No. 21A90,

(U.S. Oct. 29, 2021), Order Denying Emergency

Application for Writ of Injunction is reprinted in the

Appendix at 86a-97a.

JANE DOES 1–6, et al. v. MILLS, et al., No. 21-1826

(1st Cir. Oct. 19, 2021), Opinion and Order Affirming

Denial of Motion for Preliminary Injunction is

reprinted in the Appendix at 98a-130a.

JANE DOES 1–6, et al. v. MILLS, et al.. No. 1:21-cv242-JDL (D. Me. October 13, 2021), Order Denying

Motion for Preliminary Injunction is reprinted in the

Appendix at 131a-180a.

TABLE OF CONTENTS

QUESTIONS PRESENTED…………………………….i

PARTIES ………………………………………………...iii

DIRECTLY RELATED PROCEEDINGS……………iii

TABLE OF CONTENTS………………………………...v

TABLE OF APPENDICES…………………………...viii

TABLE OF AUTHORITIES…………………………….x

OPINIONS AND ORDER BELOW……………………1

JURISDICTION………………………………………….1

CONSTITUTIONAL AND STATUTORY

PROVISIONS…………………………………………….1

STATEMENT OF THE CASE………………………….3

I. INTRODUCTION…………………………………....3

II.

FACTUAL BACKGROUND……………………7

The Governor’s COVID-19 Vaccine

Mandate……………………………………7

Petitioners’

Sincerely

Held

Religious Beliefs Against Receiving

the COVID-19 Vaccines………………….9

III.

Respondent Providers Rely On

Contrary State Law to Excuse Their

Noncompliance with Title VII and

Deny Without Any Consideration

The Religious Accommodation

Requests of the Petitioners…………….12

PROCEDURAL HISTORY……………………16

REASONS FOR GRANTING THE PETITION…….18

THE FIRST CIRCUIT’S HOLDING THAT

AN EMPLOYER MAY DISREGARD

TITLE

VII’S

PROHIBITION

RELIGIOUS DISCRIMINATION ON

THE BASIS OF CONTRARY STATE LAW

DIRECTLY

CONFLICTS

WITH

DECISIONS FROM THE SECOND,

FOURTH, SIXTH, SEVENTH, NINTH,

TENTH AND ELEVENTH CIRCUITS………18

The First Circuit Held that

Employers May Disregard Title

VII’s Requirements to Provide

Religious Accommodations Solely

on the Basis of Contrary State Law…..18

The Second, Sixth, Seventh, and

Ninth Circuits Have Held that

Contrary State Laws Must Yield to

Title VII’s Antidiscrimination

Requirements……………………………22

vii

II.

The Second, Fourth, Seventh,

Tenth, and Eleventh Circuits Have

Held that Contrary State Laws

Must Yield to Federal

Nondiscrimination Requirements……26

THE FIRST CIRCUIT’S DECISION

BELOW DIRECTLY CONFLICTS WITH

DECISIONS FROM THIS COURT AND

THE

SECOND

AND

ELEVENTH

CIRCUITS CONCERNING WHETHER

THE PLAIN TEXT OF TITLE VII

PREEMPTS CONTRARY STATE LAWS……32

The First Circuit Held that Title VII

Does Not Always Preempt Contrary

State Laws……………………………….34

This Court and the Second and

Eleventh Circuits Have Held that

the Plain Language of Title VII

Explicitly…………………………………36

1. The First Circuit’s holding below

directly conflicts with this Court’s

precedents………………………………..36

2. The First Circuit’s holding below

directly conflicts with decisions of

the Second and Eleventh Circuits…….40

CONCLUSION………………………………………….41

viii

TABLE OF APPENDICES

APPENDIX A — ALICIA LOWE, et al. v.

MILLS, et al., No. 22-1710, (1st Cir. May 25,

2023), Opinion Affirming District Court’s

Dismissal of First Amended Verified Complaint…...1a

APPENDIX B — ALICIA LOWE, et al. v.

MILLS, et al., No. 22-1710, (1st Cir. May 25,

2023), Judgment ………………………………...........41a

APPENDIX C — ALICIA LOWE, et al. v.

MILLS, et al., No. 1:21-cv-242-JDL, (D. Me.

Aug. 18, 2022), Opinion and Order Dismissing

First Amended Verified Complaint…………………43a

APPENDIX D — JOHN DOES 1-3, et al. v.

MILLS, et al., No. 21-717, (U.S. Feb. 22, 2022),

Order Denying Petition for Writ of Certiorari…….85a

APPENDIX E — JOHN DOES 1–3, et al. v.

MILLS, et al., No. 21A90, (U.S. Oct. 29, 2021),

Order Denying Emergency Application for Writ

of Injunction……………………………………………86a

APPENDIX F — JANE DOES 1–6, et al. v.

MILLS, et al., No. 21-1826 (1st Cir. Oct. 19,

2021), Opinion and Order Affirming Denial of

Motion for Preliminary Injunction………………….98a

APPENDIX G — JANE DOES 1–6, et al. v.

MILLS, et al.. No. 1:21-cv-242-JDL (D. Me.

October 13, 2021), Order Denying Motion for

Preliminary Injunction……………………………...131a

APPENDIX H — First Amended Verified

Complaint For Injunctive Relief, Declaratory

Relief, And Damages………………………………...181a

TABLE OF AUTHORITIES

CASES

Albermarle Paper Co. v. Moody,

423 U.S. 405 (1975)……………………………………..39

Ash v. Hobart Mfg. Co.,

483 F.2d 289(6th Cir. 1973)…………………….…25, 26

Barber ex rel. Barber v. Colorado Dep’t of Revenue,

562 F.3d 1222 (10th Cir. 2009)……..……i, 6, 26, 31,32

Bhatia v. Chevron U.S.A., Inc.,

734 F.2d 1382 (9th Cir. 1984)…………………………21

Bradshaw v. Sch. Bd. of Broward Cnty.,

486 F.3d 1205 (11th Cir. 2007)……………………..…40

Bridgeport Guardians, Inc. v. Delmonte,

248 F.3d 66 (2d Cir. 2001)……………………………..40

California Fed. Savings & Loan Ass’n v. Guerra,

479 U.S. 272 (1987)………………………….…36, 37, 38

Campbell v. Universal City Dev. Partners, Ltd.,

72 F.4th 1245 (11th Cir. 2023) ………..…26, 27, 28, 29

Guardians Ass’n of N.Y.C. Police Dep’t v. Civil

Serv. Comm’n, 630 F.2d 79 (2d Cir. 1980)….22, 23, 35

Haywood v. Drown,

556 U.S. 729 (2009)………………………………………6

Hillsborough Cnty. v. Automated Med. Labs., Inc.,

471 U.S. 707 (1985)………………………………………6

Mary Jo C. v. New York State & Local Ret. Sys.,

707 F.3d 144 (2d Cir. 2013)……………………27, 29, 30

Nat’l Fed’n of the Blind v. Lamone,

813 F.3d 494 (4th Cir. 2016)…………..………26, 29, 30

Palmer v. General Mills Inc.,

513 F.2d 1040 (6th Cir. 1975)……………………..22, 25

Quinones v. City of Evanston,

58 F.3d 275 (7th Cir. 1995)…………………...…i, 26, 30

Rosenfeld v. Southern Pac. Co.,

444 F.2d 1219 (9th Cir. 1971)…………………22, 23, 24

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983)……………………………..………..39

United States v. Bd. of Educ. for Sch. Dist.

of Philadelphia, 911 F.2d 882 (3d Cir. 1990)………..21

We The Patriots USA, Inc. v. Hochul,

17 F.4th 266 (2d Cir. 2021)……………………………21

Williams v. General Foods Corp.,

492 F.2d 399 (7th Cir. 1974)………….…………...22, 25

CONSTITUTIONAL

STATUTES

PROVISIONS

AND

U.S. Const. Art. VI, cl. 2………………………………2, 6

xii

U.S. Const. amend. I……………………………….…….1

10-144 C.M.R. Ch. 264…………………………………..8

42 U.S.C. §2000e-2……………………………..…2, 4, 23

42 U.S.C. §2000e-7…………….2, 23, 25, 27, 33, 34, 35,

36, 38, 39, 41

42 U.S.C. §2000h-4…………………………………33, 35

42 U.S.C. §12201(b)…………………………………….27

OTHER AUTHORITIES

2 Timothy 3:16 (KJV)…………………………………….9

Genesis 1:26–27…………………………………………10

Exodus 20:13…………………………………………….10

Exodus 21:22–23………………………………………..10

Exodus 23:7……………………………………………...10

Isaiah 44:2………………………………………………...9

Luke 17:2…………………………………………………10

Matthew 18:6…………………………………………….10

Psalm 139:13–14…………………………………………9

Psalm 139:16……………………………………………...9

OPINIONS AND ORDERS BELOW

The First Circuit’s opinion and order affirming

the dismissal of Petitioners’ complaint is reported at

68 F.4th 706 (1st Cir. 2023) and reprinted in the

Appendix at 1a-30a. The district court’s order

dismissing Petitioners’ complaint is not yet published,

but is available at 2022 WL 3542187 (D. Me. Aug. 18,

2022) and reprinted in the Appendix at 43a-84a.

JURISDICTION

The First Circuit entered its opinion and

judgment, affirming the district court’s final

judgment dismissing Petitioners’ Title VII claims, on

May 25, 2023. (App. 1a-42a.) Petitioners invoke this

Court’s jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides, in relevant part, “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech . . . .” U.S. Const.

amend. I.

The Supremacy Clause of the United States

Constitution provides,

This Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of

the United States, shall be the supreme Law

of the Land; and the Judges in every State

shall be bound thereby, any Thing in the

Constitution or Laws of any State to the

Contrary notwithstanding.

U.S. Const. Art. VI, Cl.2.

Title VII of the Civil Rights Act of 1964

provides, in relevant part, “It shall be an unlawful

employment practice for an employer . . . to discharge

any individual, or otherwise to discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment

because of such individual’s . . . religion,” 42 U.S.C.

§ 2000e-2(a), and, “The term ‘religion’ includes all

aspects of religious observance and practice, as well

as belief, unless an employer demonstrates that he is

unable to reasonably accommodate to an employee’s

or prospective employee’s religious observance or

practice without undue hardship on the conduct of the

employer's business.” 42 U.S.C. § 2000e(j). Also

relevant to the instant Petition is 42 U.S.C. §2000e-7,

which states,

Nothing in this subchapter shall be deemed

to exempt or relieve any person from any

liability, duty, penalty, or punishment

provided by any present or future law of any

State or political subdivision of a State,

other than any such law which purports to

require or permit the doing of any act which

would be an unlawful employment practice

under this subchapter.

STATEMENT OF THE CASE

INTRODUCTION

Petitioners are all former healthcare workers in

the State of Maine who submitted, under Title VII of

the Civil Rights Act of 1964, a request for a religious

accommodation from the State’s mandate that all

healthcare workers in Maine receive a COVID-19

vaccination as a condition of continued employment in

the healthcare industry. (App. 188a, First Amended

Verified Complaint (“Compl.”) ¶8.) Justice Gorsuch

described Petitioners’ fight nearly two years ago,

This case presents an important

constitutional question, a serious error,

and an irreparable injury. Where many

other States have adopted religious

exemptions, Maine has charted a different

course. There, healthcare workers who

have served on the front line of a pandemic

for the last 18 months are now being fired

and their practices shuttered. All for

adhering

their

constitutionally

protected religious beliefs. Their plight is

worthy of our attention.

(App. 96a-97a (Gorsuch, J., dissenting from denial of

injunctive relief pending appeal) (emphasis added).)

Though circumstances and the seminal

question have changed from Petitioners’ original plea

to this Court, Petitioners’ plight has not and is still

worthy of this Court’s attention today. In August

2021, the Governor of Maine instituted a vaccine

mandate for healthcare workers in the State of Maine.

(App. 196a-197a, Compl. ¶¶31-39.) Prior to their

termination, Petitioners worked for healthcare

facilities in Maine that were subject to the Governor’s

vaccination mandate, including MaineHealth,

Genesis Healthcare of Maine, LLC, MaineGeneral

Health, and Northern Light Eastern Maine Medical

Center (collectively the “Employer Respondents”).

Petitioners all sought accommodations under Title VII

for their sincerely held religious objections to the

COVID-19 vaccines, and were automatically refused

such accommodations solely on the basis that the

State’s mandate prohibited any and all such

accommodations. (App. 207a-212a, Compl. ¶¶72-86.)

Petitioners filed a federal complaint against the State

Defendants for instituting a COVID-19 vaccination

requirement

that

prohibited

religious

accommodations in violation of the First and

Fourteenth Amendments to the United States

Constitution, and against the Employer Respondents

for refusing to provide the religious accommodations

demanded by Title VII.

Despite the plain import of Title VII’s

requirement that employers provide accommodation

for Petitioners’ sincerely held religious convictions, see

42 U.S.C. §2000e-2(a), Employer Respondents all

explicitly informed Petitioners that their religious

convictions must be overridden by state law, with no

exception and no accommodation whatsoever. When

rejecting

Petitioners’

request

for

religious

accommodation, Employer Respondents informed

Petitioners that Title VII did not apply. Even a

cursory review of Employer Respondents’ positions

with respect to accommodating religious beliefs under

Title VII reveals the grave error committed by the

First Circuit below.

Petitioner Lowe was informed by her employer

that, under its view, “federal law did not supersede

state law in this instance.” (App. 209a, Compl. ¶77.)

Petitioner Lowe’s employer stated, based on the newly

implemented state mandate, “we are no longer able to

consider religious exemptions for those who work in

the state of Maine.” (App. 208, Compl. ¶74.) Petitioner

Lowe was further informed that her employer

believed providing a religious accommodation

required by Title VII would cause it “to violate state

law by granting unrecognized exemptions.” (App.

210a, Compl. ¶77.) It stated, “we are not able to grant

a request for a religious exemption from the state

mandate vaccine.” (Id.)

Petitioner Giroux was informed by her

employer that, notwithstanding Title VII: “Allowing

for a religious exemption would be a violation of the

state mandate issued by Governor Mills. So,

unfortunately, that is not an option for us.” (App.

212a, Compl. ¶85.)

All Petitioners were refused any consideration

for religious accommodation under Title VII, were

terminated from their employment, and the sole basis

given by Employer Respondents was that compliance

with Title VII would require violation of a contrary

state law. (App. 207a-212a, Compl. ¶¶72-86.)

Though one would search in vain for a merited

justification for such a constitutionally inverted

analysis, the First Circuit’s decision below supplied it.

As the First Circuit saw the matter, “granting the

accommodation would have exposed the Providers to

penalties for violating the [state] Mandate.” (App.

37a.) But “[r]eliance on state statutes to excuse

noncompliance with federal laws is simply

unacceptable under the Supremacy Clause.” Barber ex

rel. Barber v. Colorado Dep’t of Revenue, 562 F.3d

1222, 1233 (10th Cir. 2009). And the reason for this is

simple: “the demands of [federal antidiscrimination

laws] do not yield to contrary state laws that

discriminate against [protected classes]; it works the

other way around.” Id. at 1234 (Gorsuch, J.,

concurring) (emphasis added).

What should have been obvious to Petitioners’

employers, and to the First Circuit below, is that

federal law is supreme over any contrary state law.

See U.S. Const. Art. VI, cl. 2. “This Court has long

made clear that federal law is as much the law of the

several States as are the laws passed by their

legislatures.” Haywood v. Drown, 556 U.S. 729, 734

(2009). Indeed, “it is a familiar and well-established

principle that the Supremacy Clause invalidates state

laws that interfere with, or are contrary to, federal

law.” Hillsborough Cnty. v. Automated Med. Labs.,

Inc., 471 U.S. 707, 712 (1985) (cleaned up). Thus,

“state law is nullified to the extent that it actually

conflicts with federal law.” Id. at 713.

The First Circuit charted a different course. It

permitted compliance with contrary state laws to

excuse noncompliance with Title VII. This cannot be

the law, and the Supremacy Clause demands a

different outcome. This Court should grant the

Petition.

II.

FACTUAL BACKGROUND

The Governor’s COVID-19 Vaccine

Mandate.

On August 12, 2021, Governor Mills announced

that Maine will require healthcare workers to accept

one of the three then-available COVID-19 vaccines to

remain employed in the healthcare profession (the

“Vaccine Mandate”). (App. 196a, Compl. ¶31.) The

Vaccine Mandate defined healthcare worker as “any

individual employed by a hospital, multi-level health

care facility, home health agency, nursing facility,

residential care facility, and intermediate care facility

for individuals with intellectual disabilities that is

licensed by the State of Maine” as well as “those

employed by emergency medical service organizations

or dental practices.” (App. 196a, Compl. ¶32.) The

Vaccine Mandate also provided that “[t]he

organizations to which this requirement applies must

ensure that each employee is vaccinated, with this

requirement being enforced as a condition of the

facilities’ licensure.” (Id., ¶33.) The Governor

threatened to revoke the licenses of all covered

healthcare employers failing to mandate that their

employees receive a COVID-19 vaccine. (App. 197a,

Compl. ¶34.)

In addition to the Governor’s mandate,

Petitioners and all healthcare workers in Maine were

also stripped of their pre-existing federal right to

request a religious accommodation from the

COVID-19 Vaccine Mandate. Effective on September

1, 2021, Dr. Shah and the Maine Center for Disease

Control and Prevention (“MCDC”) amended 10-144

C.M.R. Ch. 264 to eliminate the ability of healthcare

workers in Maine to request and obtain a religious

accommodation from the COVID-19 Vaccine

Mandate. (App. 197a, Compl. ¶36.) The only source of

mandatory

immunization

exemption

Maine

recognized for healthcare workers is 22 M.R.S.

§ 802.4-B, which purports to exempt only those

individuals for whom an immunization is medically

inadvisable and who provide a written statement

from a doctor documenting the need for an exemption.

(Id., Compl. ¶37.) Under the prior version of Maine’s

regulation, 10-144 C.M.R. Ch. 264, § 3-B, a healthcare

worker could be exempted from mandatory

immunizations if the “employee states in writing an

opposition to immunization because of a sincerely

held religious belief.” (Id., Compl. ¶38.) In fact, as

acknowledged by MCDC below, Maine removed the

religious exemption to mandatory immunizations

effective September 1, 2021. (App. 197a-198a, Compl.

¶39 (“The health care immunization law has removed

the allowance for philosophical and religious

exemptions and has included influenza as a required

immunization.”).)

Petitioners’

Sincerely

Held

Religious Beliefs Against Receiving

the COVID-19 Vaccines.

Petitioners have sincerely held religious beliefs

that precluded them from accepting or receiving any

of the three then-available COVID-19 vaccines

because of their connection to aborted fetal cell lines,

whether in the vaccines’ origination, production,

development, or testing. (App. 198a, Compl. ¶40.) A

fundamental component of Petitioners’ sincerely held

religious beliefs is that all life is sacred, from the

moment of conception to natural death, and that

abortion is a grave sin against God and the taking of

an innocent life. (Id., Compl. ¶41.) Petitioners’

sincerely held religious beliefs are rooted in

Scripture’s teachings that “[a]ll Scripture is given by

inspiration of God, and is profitable for doctrine, for

reproof, for correction, [and] for instruction in

righteousness.” (Id., Compl. ¶42. (quoting 2 Timothy

3:16 (KJV)).) Because of their sincerely held religious

beliefs, Petitioners must conform their lives,

including their decisions relating to medical care, to

the commands and teaching of Scripture. (Id., Compl.

¶43.)

Petitioners have sincerely held religious beliefs

that God forms children in the womb and knows them

prior to their births, and that life is sacred from the

moment of conception. (App. 199a, Compl. ¶44

(quoting, inter alia, Psalm 139:13–14 (ESV); Psalm

139:16 (ESV); Isaiah 44:2 (KJV)).)

Petitioners have sincerely held religious beliefs

that every child’s life is sacred because each child is

made in the image of God. (Id., Compl. ¶45 (quoting

Genesis 1:26–27 (KJV)).) And, because life is sacred

from the moment of conception, the killing of that

innocent life is the murder of an innocent human in

violation of Scripture. (Id., Compl. ¶46 (quoting, inter

alia, Exodus 20:13 (KJV); Exodus 21:22–23 (KJV);

Exodus 23:7 (KJV)).)

Petitioners also have the sincerely held

religious belief that it would be better to tie millstones

around their necks and be drowned in the sea than

bring harm to an innocent child. (App. 200a, Compl.

¶47 (quoting Matthew 18:6; Luke 17:2).) Petitioners

have sincerely held religious beliefs, rooted in the

Scriptures, that anything that condones, supports,

justifies, or benefits from the taking of innocent

human life via abortion is sinful, and contrary to the

Scriptures. (Id., Compl. ¶48.) Petitioners believe that

it is an affront to Scripture’s teaching for them to use

a product derived from or connected in any way with

abortion. (Id., Compl. ¶49.) Petitioners’ sincerely held

religious beliefs therefore precluded them from

accepting any one of the three available COVID-19

vaccines because of their connections to aborted fetal

cell lines. (Id., Compl. ¶50.)

Petitioners have sincerely held religious

objections to the Johnson & Johnson (Janssen

Pharmaceuticals) vaccine because it unquestionably

used aborted fetal cells lines to produce and

manufacture the vaccine. (App. 201a, Compl. ¶50.) As

reported by the North Dakota Department of Health,

“[t]he non-replicating viral vector vaccine produced by

Johnson & Johnson did require the use of fetal cell

cultures, specifically PER.C6, in order to produce and

manufacture the vaccine.” (Id., Compl. ¶52.)

Petitioners have sincerely held religious objections to

the Moderna and Pfizer/BioNTech COVID-19

vaccines because both of these vaccines, too, have

their origins in research using aborted fetal cell lines.

(App. 202a, Compl. ¶55.) In fact, “[e]arly in the

development of mRNA vaccine technology, fetal cells

were used for ‘proof of concept’ (to demonstrate how a

cell could take up mRNA and produce the SARS-CoV2 spike protein) or to characterize the SARS-CoV-2

spike protein.” (Id., Compl. ¶56.) The Louisiana

Department of Health’s publications also confirm that

aborted fetal cells lines were used in the “proof of

concept” phase of the development of their COVID-19

mRNA vaccines. (Id., Compl. ¶57.)

Because all three of the COVID-19 vaccines

available to Petitioners were developed and produced

from, tested with, researched on, or otherwise

connected with the aborted fetal cell lines HEK-293

and PER.C6, Petitioners’ sincerely held religious

beliefs compelled them to abstain from injecting any

of these products into their bodies. And, because

Petitioners’ sincerely held religious convictions

precluded them from accepting a COVID-19 vaccine,

they were terminated from their employment. (App.

186a-187a, Compl. ¶5.)

Respondents have not contested the sincerity of

Petitioners’ religious beliefs. (See App. 60a (“the

Hospital Defendants do not challenge the sincerity of

the Plaintiffs’ asserted religious beliefs or that those

beliefs are the reason for the Plaintiffs’ refusal to be

vaccinated”); App. 26a (concluding that Employer

Respondents did not contest the sincerity of

Petitioners’ religious beliefs).)

Employer Respondents Rely On

Contrary State Law to Excuse Their

Noncompliance with Title VII and

Deny Without Any Consideration

The

Religious

Accommodation

Requests of the Petitioners.

Consistent with her sincerely held religious

beliefs, Petitioner Alicia Lowe submitted to her

employer, Respondent MaineHealth, a request for a

religious exemption from the Vaccine Mandate. (App.

207a, Compl. ¶72.)

On August 17, 2021, MaineHealth denied

Petitioner

Lowe’s

request

for

religious

accommodation (App. 208a, Compl. ¶73), stating:

Please be advised that due to the addition

of the COVID-19 vaccine to Maine’s

Healthcare Worker Immunization law

announced by the governor in a press

conference on 8/12/21, we are no longer

able to consider religious exemptions

for those who work in the state of

Maine. This also includes those of you

who

submitting

[sic]

influenza

exemptions as well. . . .

You submitted a religious exemption, your

request is unable to be evaluated due to a

change in the law. Your options are to

receive

vaccination

provide

documentation for a medical exemption to

meet current requirements for continued

employment.

(App. 208a, Compl. ¶74.)

On August 20, 2021, after receiving her first

denial from MaineHealth, Petitioner Lowe responded

to MaineHealth, stating:

My request for an exemption was made

under federal law, including Title VII of

the Civil Rights [Act] of 1964. The

Constitution provides that federal law is

supreme over state law, and Maine cannot

abolish the protections of federal law. You

may be interested in this press release

from Liberty Counsel, and the demand

letter they have sent to Governor Mills on

this issue (which is linked in the press

release):https://lc.org/newsroom/details/08

1821-maine-governor-must-honorreligious-exemptions-for-shot-mandate.

Regardless of what the Governor chooses

to do, Franklin Memorial has a legal

obligation under federal law to consider

and grant my proper request for a religious

exemption. Please let me know promptly if

you will do so.

(App. 209a, Compl. ¶75.)

That same day, MaineHealth responded to

Petitioner Lowe stating that federal law does not

supersede state law or the Vaccine Mandate. (Id.,

Compl. ¶76.) Specifically, MaineHealth stated:

Although I cannot give legal guidance to

employees, I can share MaineHealth’s

view that federal law does not

supersede state law in this instance.

The EEOC is clear in its guidance that

employers need only provide religious

accommodations when doing so does not

impose an undue hardship on operations.

Requiring MaineHealth to violate state

law by granting unrecognized exemptions

would impose such a hardship. As such, we

are not able to grant a request for a

religious exemption from the state

mandated vaccine.

(App. 209a-210a, Compl. ¶77.) Petitioner Lowe was

thus terminated from her employment because she

could not accept a COVID-19 vaccination in violation

of her sincerely held religious convictions. (App. 210a,

Compl. ¶78.)

Petitioner Chalmers submitted to her

employer, Genesis Healthcare, a request for a

religious exemption and accommodation from the

Vaccine Mandate. (App. 210a, Compl. ¶79.) After

reviewing Petitioner Chalmers’s submission, which

articulated her sincerely held religious beliefs,

Genesis Healthcare sent her a cursory response

stating that her religious beliefs did not qualify for an

exemption from the Vaccine Mandate. (Id.) Petitioner

Chalmers was given until August 23, 2021, to become

vaccinated, and when her request for a religious

objection and accommodation was cursorily denied,

Petitioner Chalmers was terminated from her

employment. (Id.)

Petitioner Barbalias submitted a request to her

employer, Respondent Northern Light, seeking an

exemption and accommodation from the Vaccine

Mandate. (App. 210a-211a, Compl. ¶80.) Northern

Light responded to Petitioner Barbalias, denying her

request and stating that the Vaccine Mandate does

not permit exemptions or accommodations for

sincerely held religious beliefs. (Id.) Specifically,

Northern Light informed Petitioner Barbalias that

her request for a religious exemption could not be

granted because Maine law and the Governor do not

permit “non-medical exemptions,” and stated, “the

only exemptions that may be made to this

requirement are medical exemptions supported by a

licensed physician, nurse practitioner, or physician

assistant.” (App. 211a, Compl. ¶81.) Petitioner

Barbalias was terminated from her employment

because Respondent Northern Light stated that

compliance with state requirements excused its

noncompliance with Title VII. (Id., Compl. ¶82.)

On August 19, 2021, Petitioner Giroux

submitted a request to her employer, Respondent

MaineGeneral, stating that she has sincerely held

religious objections to the COVID-19 vaccines and

requesting an exemption and accommodation from

the Vaccine Mandate. (App. 211a, Compl. ¶83.)

MaineGeneral told Petitioner Giroux that no religious

exemptions were permitted under the Governor’s

mandate and that her request for a religious

exemption and accommodation was denied. (Id.)

Specifically, MaineGeneral stated:

MaineGeneral Health must comply with

Governor

Mill’s

[sic]

COVID-19

vaccination mandate for all health care

employees. All MaineGeneral employees

will have to be vaccinated against

COVID-19 by Oct. 1 unless they have a

medical exemption. The mandate also

states that only medical exemptions are

allowed, no religious exemptions are

allowed.

(App. 212a, Compl. ¶84.) Maine General further

stated, “Allowing for a religious exemption would be a

violation of the state mandate issued by Governor

Mills. So unfortunately, it is not an option for us.” (Id.,

Compl. ¶85.)

III.

PROCEDURAL HISTORY.

Petitioners initiated this action on August 25,

2021, with the filing of a Verified Complaint and a

Motion for Temporary Restraining Order and

Preliminary Injunction. On August 26, the district

court held a temporary restraining order (TRO)

hearing and denied the TRO the same day. (See App.

9a-10a.) The district court initially scheduled a

preliminary injunction hearing for September 10 but

granted Respondents’ request to continue the hearing

to September 20, over Petitioners’ objection. (See App.

134a.) After the preliminary injunction hearing on

September 20, the court took the matter under

advisement and informed the parties that a decision

would issue expeditiously. Twenty-three days later

(two days before Petitioners’ deadline to become

vaccinated), the district court denied the preliminary

injunction. (App. 131a-180a.)

Within an hour of the district court’s order

denying a preliminary injunction, Petitioners

appealed the denial to the First Circuit and moved for

an emergency injunction pending appeal. (App. 110a.)

The First Circuit denied that emergency motion (id.),

and Petitioners applied to this Court for an

emergency writ of injunction pending disposition of

Petitioners’ forthcoming certiorari petition. Justice

Breyer denied that motion without prejudice to

refiling the application should the First Circuit not

grant the necessary relief. (See App. 11a.) On October

19, 2021, the First Circuit issued its opinion affirming

the denial of a preliminary injunction (App. 98a130a), and Petitioners immediately reapplied to this

Court for a writ of injunction. On October 29, the

Court, over the dissent of Justice Gorsuch with whom

Justices Thomas and Alito joined, denied the

application. (App. 86a-97a.)

On August 18, 2022, after conducting a hearing

on Respondents’ motions to dismiss, the district court

entered its opinion and order dismissing Plaintiffs’

complaint in its entirety and entered final judgment

dismissing all claims. (App. 43a-84a.) Petitioners

timely appealed that dismissal to the First Circuit.

(App. 13a.) On May 25, 2023, the First Circuit entered

its order and judgment affirming the dismissal of

Petitioners’ Title VII and other claims, but reversing

the dismissal of Petitioners’ constitutional claims.

(App. 1a-42a.)

REASONS FOR GRANTING THE PETITION

THE FIRST CIRCUIT’S HOLDING THAT

AN EMPLOYER MAY DISREGARD TITLE

VII’S PROHIBITION ON RELIGIOUS

DISCRIMINATION ON THE BASIS OF

CONTRARY STATE LAW DIRECTLY

CONFLICTS WITH DECISIONS FROM

THE

SECOND,

FOURTH,

SIXTH,

SEVENTH,

NINTH,

TENTH,

AND

ELEVENTH CIRCUITS.

The First Circuit Held that

Employers May Disregard Title

VII’s Requirements to Provide

Religious Accommodations Solely

on the Basis of Contrary State Law.

As a threshold matter, no one disputes that

Petitioners adequately raised a prima facie case of

religious discrimination under Title VII in their

complaint, as the First Circuit noted below. (App.

26a.) Thus, Petitioners’ appeal below “turn[ed] on [the

employers’] undue hardship defense.” (Id.) The sole

defense raised by Employer Respondents below was

that providing a religious accommodation to

Petitioners would have required them to violate state

law and thus constitute an undue hardship. (App. 27a

(“Maine law makes clear that, by providing the

plaintiffs their requested accommodation as described

in the complaint, the Providers would have risked

onerous penalties, including license suspension. The

Mandate requires the Providers to ‘require for all

employees who do not exclusively work remotely and

who are not medically exempted a certificate of

immunization against COVID-19.” (cleaned up)).) As

to Petitioners’ requested religious accommodation,

the First Circuit held that granting such an

accommodation “would thus have placed the

Providers in violation of the Mandate.” (App. 27a28a.)

The

First

Circuit’s

decision

below

unequivocally held that a violation of a state law

directly contrary to Title VII excused noncompliance

with Title VII’s nondiscrimination requirements. The

dismissal of Petitioners’ Title VII claims was based on

nothing more, and the decision below elevated

Maine’s state law above the requirements of Title VII.

The only reasonable inference from

[Petitioners’ complaint] and from the

relevant Maine law, both of which we may

properly consider in reviewing the

dismissal of Title VII claims . . . is that

granting the requested accommodation

would have exposed the Providers to a

substantial risk of license suspension, as

well as monetary penalties [for violating

the state mandate.]

(App. 28a-29a (emphasis added).)

The First Circuit held that a violation of state

law that prohibited an accommodation explicitly

required by Title VII was a justifiable excuse from

compliance with Title VII. “[P]otential penalties for

violating [state] laws can render a proposed

accommodation an undue hardship.” (App. 33a.) Put

another way, the First Circuit held that employers

may ignore the requirements of Title VII if their

justification for doing so is a risk of punishment under

state laws that directly conflict with Title VII. (App.

34a (“we conclude that the complaint’s allegations

and the relevant Maine law permit no reasonable

inference but that granting the plaintiffs their

requested accommodation would have exposed the

Providers to a substantial risk of license suspension

and other penalties, creating an undue hardship”)

(emphasis added).) And, the First Circuit’s rationale

was plain: it is an undue hardship to comply with

Title VII when such compliance requires an employer

to violate a contrary state law. (App. 37a (“[G]ranting

that accommodation would have exposed Providers to

penalties for violating the Mandate, and thus

constituted an undue hardship not required by Title

VII.”).)

The First Circuit’s decision below relied upon

the decisions of two other circuits that have likewise

held that state laws directly contrary to Title VII

serve as a justification for ignoring the

nondiscrimination requirements in Title VII. (App.

31a-33a (citing United States v. Bd. of Educ. for Sch.

Dist. of Philadelphia, 911 F.2d 882 (3d Cir. 1990) and

Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th

Cir. 1984)).) The Third Circuit’s decision in United

States v. Bd. of Educ. held that an employer need not

provide an accommodation unquestionably required

by Title VII when doing so would allegedly violate

state law. 911 F.2d at 891. The Ninth Circuit’s

decision in Bhatia reached the same conclusion. 734

F.2d at 1384 (holding that an employer is excused

from compliance with Title VII’s nondiscrimination

requirements to avoid the risk of “liability for

violating the California Occupational Safety and

Health Administration standards”).

The First Circuit’s decision below also relied

upon the Second Circuit’s decision in We The Patriots

USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021).

There, the Second Circuit likewise held that

employers are permitted to follow state law to excuse

their noncompliance with Title VII’s requirements to

provide a religious accommodation to their

employees. Id. at 291-92. In We The Patriots, the

Second Circuit reversed the district court’s conclusion

that “Plaintiffs’ adequately demonstrated that [New

York’s vaccine mandate] effectively forecloses the

pathway to seeking a religious exemption that is

guaranteed by Title VII.” Id. at 261. The essence of

the Second Circuit’s decision, like that of the First

Circuit below (App. 33a), was that state law excused

noncompliance with Title VII’s requirements to

provide a religious accommodation. 17 F.4th at 29293.

The decision of the First Circuit below, along

with the decisions of the Second, Third, and Ninth

Circuits discussed above, are in direct conflict with

the decisions of other circuits. The holding that

compliance with state law excuses noncompliance

with Title VII and federal antidiscrimination law

simply cannot be reconciled with the decisions of

several other circuits.

The Second, Sixth, Seventh, and

Ninth Circuits Have Held that

Contrary State Laws Must Yield to

Title

VII’s

Antidiscrimination

Requirements.

The First Circuit’s decision below, along with

the decisions of the Second, Third, and Ninth Circuits

discussed supra, directly conflict with other decisions

of the Second, Sixth, Seventh, and Ninth Circuits that

contrary state laws must yield to Title VII’s

commands. See, e.g., Guardians Ass’n of N.Y.C. Police

Dep’t v. Civil Serv. Comm’n, 630 F.2d 79 (2d Cir.

1980); Rosenfeld v. Southern Pac. Co., 444 F.2d 1219

(9th Cir. 1971); Palmer v. General Mills Inc., 513 F.2d

1040 (6th Cir. 1975); Williams v. General Foods Corp.,

492 F.2d 399 (7th Cir. 1974).

In Guardians Ass’n, the Second Circuit rejected

an employer’s reliance on conflicting state laws to

justify its use of a practice prohibited by Title VII. 630

F.2d at 104-05. “[T]he City cannot use rank-ordering

not shown to be job-related when test scores produce

a disparate racial impact. Nor can the City justify the

use of rank-ordering by reliance on what it contends

are the requirements of state law.” Id. at 104. Indeed,

“Title VII explicitly relieves employers from any duty

to observe a state hiring provision ‘which purports to

require or permit’ any discriminatory employment

practice.” Id. at 105 (quoting 42 U.S.C. §2000e-7). The

First Circuit explicitly recognized the Second Circuit’s

holding but concluded that it was inapposite to

Petitioners’ claims because it only pertained to racial

discrimination. (App. 39a.) But Title VII equally

prohibits both religious and racial discrimination, 42

U.S.C. §2000e-2, and the purported distinction

between the two provides no basis for a contrary

holding on preemption. It cannot be countenanced

that

compliance

with

state

law

excuses

noncompliance with Title VII when the claim involves

religious discrimination, but that compliance with

state law does not excuse noncompliance with Title

VII when the claims arise from discrimination on

account of race. The First Circuit’s decision directly

conflicts, and cannot be reconciled, with the Second

Circuit’s Guardians Association decision.

The First Circuit’s decision is also in direct

conflict with the Ninth Circuit’s decision in Rosenfeld.

In Rosenfeld, a female employee was “refused

assignments” to certain employment positions

because “she could not perform the task of such a

position without placing the company in violation of

California laws.” 444 F.2d at 1225. Indeed, for the

employer to employ her in certain positions would

have run afoul of California’s Industrial Welfare

Order No. 9-63 and certain California labor code

provisions. Id. The female employee brought suit,

alleging that such practices violated Title VII’s

prohibition on discrimination on the basis of sex. Id.

The employer’s sole defense for its discriminatory

employment practices was that “its policy is

compelled by California labor laws.” Id.

The Ninth Circuit rejected the employer’s

defense, holding that Title VII’s nondiscrimination

requirements could not be overridden by contrary

state law. Id. “It would appear that these state law

limitations imposed upon female labor run contrary

to the general objectives of Title VII [and] are

therefore, by virtue of the Supremacy Clause,

supplanted by Title VII.” Id. Contrary to the First

Circuit’s decision below, the Ninth Circuit correctly

noted that recognizing such a defense would ignore

the purpose of Title VII’s broad remedial scheme. Id.

The employer’s “argument assumes that Congress,

having established by Title VII the policy that

individuals must be judged as individuals, and not on

the basis of characteristics generally attributed to

racial, religious, or sex groups, was willing for this

policy to be thwarted by state legislation to the

contrary.” Id. Such is not the law.

As the Ninth Circuit pointed out, the

preemption sections of Title VII were “added to the

Act to save state laws aimed at preventing or

punishing discrimination . . . not to save inconsistent

state laws.” Id. at 1226 (emphasis added). Simply put,

the Ninth Circuit held that “state labor laws

inconsistent with the general objectives of the Act

must be disregarded.” Id. Rosenfeld cannot be

reconciled with the First Circuit’s decision below.

The Seventh Circuit’s decision in Williams is

also in direct conflict with the First Circuit’s decision

below. Williams, 492 F.2d at 403-04. There, much like

in Rosenfeld, the employer distributed overtime

opportunities and benefits primarily to men and

discriminated against women in such decisions

because it believed Illinois law required it to do so. Id.

at 404 (noting “the Corporation’s reliance on the

Illinois Female Employment Act in the structuring of

employment opportunities”). Citing 42 U.S.C. §2000e7, the Seventh Circuit held that an employer was not

excused from liability for a violation of Title VII

merely because state law required such a

discriminatory employment practice. Williams, 492

F.2d at 404 (“[T]he scheme of Title VII provides that

employers are exempted from liability under state

laws which require the doing of acts which constitute

unlawful employment practices, not that reliance on

state statutes resulting in discriminatory practices

bars Title VII liability.” (emphasis added) (cleaned

up)). “It would have been incongruous for Congress to

have intended a defense resulting in the perpetuation

of discriminatory employment practices (even if based

on state law) in a federal law designed to achieve

equality of educational opportunity.” Id.

The Sixth Circuit’s Palmer decision is also in

direct conflict with the First Circuit’s decision below.

The Sixth Circuit held that “an employer’s

compliance, even in good faith, with the requirement

of a state law . . . does not render the company’s

actions any less a violation of Title VII.” 513 F.2d at

1042. See also Ash v. Hobart Mfg. Co.,483 F.2d 289,

292 (6th Cir. 1973) (“even good faith reliance by an

employer upon a conflicting state female employment

statute . . . would not render that employer’s actions

any less a violation of the Federal Civil Rights Act”).

Guardians Association, Rosenfeld, Williams,

Palmer, and Ash cannot be reconciled with the First

Circuit’s decision below. The decisions of the Second,

Sixth, Seventh, and Ninth Circuits directly conflict

with the First Circuit’s decision below. This Court

should grant the Petition and resolve the conflict.

The Second, Fourth, Seventh,

Tenth, and Eleventh Circuits Have

Held that Contrary State Laws Must

Yield to Federal Nondiscrimination

Requirements.

The First Circuit’s decision below also

exacerbated a larger conflict among the circuits

concerning whether contrary state law creates a

reasonable justification for ignoring federal

nondiscrimination requirements. See, e.g., Campbell

v. Universal City Dev. Partners, Ltd., 72 F.4th 1245

(11th Cir. 2023); Mary Jo C. v. New York State &

Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013); Barber ex

rel. Barber v. Colorado Dep’t of Revenue, 562 F.3d

1222 (10th Cir. 2009); Nat’l Fed’n of the Blind v.

Lamone, 813 F.3d 494 (4th Cir. 2016); Quinones v.

City of Evanston, 58 F.3d 275 (7th Cir. 1995). In each

of these conflicting circuit decisions, the court held

that—regardless of the nature of the federal

antidiscrimination statute at issue—reliance on

contrary state laws was no excuse from liability.

In Campbell, an employer refused to provide an

accommodation

under

the

Americans

with

Disabilities Act because it claimed doing so would

require it to violate state law. 72 F.4th at 1256. The

Eleventh Circuit noted: “The first reason Universal

gives for why it must exclude Campbell is because

state law requires it. We are not persuaded.” Id.

(emphasis added). “In other words, Universal says, it

can impose discriminatory eligibility criteria when

state law requires it to do so.” Id. at 1257.

Much like Title VII does here—see 42 U.S.C.

§2000e-7—“the ADA explicitly provides that the ADA

does not preempt state laws that provide greater

protection to those with a disability.” 72 F.4th at 1257

(citing 42 U.S.C. §12201(b)). “So by implication, a

state law that provides less protection than the ADA

to those with a disability is preempted.” Id.

To illustrate the preemption point, the

Eleventh Circuit used an example strikingly similar

to the issue here: “For instance, if a state passed a law

that required public accommodations to discriminate

against those with a disability—say, to get a business

license—that law would be preempted by the ADA.”

Id. (Cf. App. 29a (noting that the State’s Vaccine

Mandate required as a condition of business licensure

that Employer Respondents refuse to provide

religious accommodation to COVID-19 vaccination).)

Universal’s defense was premised on the notion

that state law demanded it discriminate against the

plaintiff. 72 F.4th at 1257. The Eleventh Circuit

disagreed. “[W]e must conclude that the text of the

ADA precludes us from finding that it is [excusable]

to comply with state law when state law otherwise

requires a public accommodation to violate the ADA.”

Id. “If compliance with state law were ‘necessary,’

then any state could unilaterally nullify the ADA by

enacting a state law requiring discrimination. That

can’t be right.” Id. (emphasis added). Simply put, the

Eleventh Circuit held that compliance with contrary

state laws cannot excuse noncompliance with federal

antidiscrimination requirements. Id. (“We hold the

compliance with state law does not qualify as

‘necessary’ . . . Therefore, it does not excuse from ADA

liability a public accommodation that imposes

discriminatory eligibility criteria because of state

law.”).

To make the conflict with the First Circuit’s

decision below even more clear, the Eleventh Circuit

noted that federal law demands a finding that a

covered entity is excused from compliance with

contrary state laws. “Universal also resists the

conclusion that compliance with state law does not

qualify as necessary on the ground that if Universal

fails to follow Florida law, Florida will subject

Universal to closure or criminal or civil penalties, or

all those things.” Id. This is virtually identical to the

defenses accepted by the First Circuit below. (App.

29a-34a (noting that “granting the plaintiffs’ desired

accommodation would require violating the Mandate,

and that noncompliant employers would face fines

and loss of licensure” (cleaned up)).) The Eleventh

Circuit noted the constitutionally inverted nature of

this reasoning: “We don’t agree. If the ADA requires

allowing Campbell to ride, then Universal doesn’t face

criminal and civil penalties in Florida. The

Supremacy Clause requires ‘a different order of

priority.’” 72 F.4th at 1258. “If federal law requires

Universal to allow Campbell to ride, and state law

forbids it, then Universal must let Campbell ride.” Id.

This is in direct conflict with the First Circuit’s

decision below. (App. 37a.)

The Second Circuit’s decision in Mary Jo

likewise directly conflicts with the First Circuit’s

decision below. 707 F.3d 144. There, plaintiffs

brought a claim arguing that defendants had violated

Title II of the Americans with Disabilities Act by

failing to grant a reasonable accommodation

concerning state-imposed deadlines for applying for

disability benefits. 707 F.3d at 149. The district court

dismissed plaintiff’s complaint, holding that

requiring defendant to grant a reasonable

accommodation that would otherwise violate state

law is not required by federal law. Id. at 161. The

Second Circuit held that state laws which are

inconsistent with federal nondiscrimination statutes

must yield to the federal command. Id. at 163.

The Second Circuit noted that Title II “requires

preemption of inconsistent state law when necessary

to effectuate a required ‘reasonable modification.’” Id.

Its rationale was directly contrary to the First

Circuit’s decision below: “If all state laws were

insulated from Title II’s reasonable modification

requirement solely because they were state laws,

state law would serve as an obstacle to the

accomplishment and execution of the full purposes

and objective on Congress in enacting Title II.” Id.

“We conclude that the ADA’s reasonable modification

requirement contemplates modification to state laws,

thereby permitting preemption of inconsistent state

laws when necessary to effectuate Title II’s

reasonable modification provision.” Id. Were it

otherwise, federal law “would be powerless” to

accomplish its antidiscrimination requirements when

contrary to state law. Id.

The Seventh Circuit’s decision in Quinones

likewise conflicts with the First Circuit’s decision

below. 58 F.3d 275. There, Illinois state law

prohibited the provision of certain employment and

pension benefits to a class of individuals because of

their age. Id. at 277. The city claimed that providing

the benefits sought by the plaintiff under federal law

would require it to violate state law. Id. The Seventh

Circuit rejected that rationale: “Evanston believes

that it is compelled to follow the directives from the

state, but the Supremacy Clause of the Constitution

requires a different order of priority.” Id. Indeed, “[a]

discriminatory state law is not a defense to liability

under federal law; it is a source of liability under

federal law.” Id. The Seventh Circuit rejected the

City’s attempt to excuse its noncompliance with

federal law on the basis of compliance with contrary

state law.

The Fourth Circuit, too, has rejected the First

Circuit’s conclusion below. Lamone, 813 F.3d at 508.

There, Maryland state law imposed certain

requirements on the conduct of elections and

prevented certain accommodations for individuals

with disabilities. Id. The Fourth Circuit noted that

“the strong form of defendants’ argument [was] the

mere fact of a state statutory requirement insulates

public entities from making otherwise reasonable

modifications to prevent disability discrimination.”

Id. As the Fourth Circuit held, that “cannot be

correct.” Id. The reason was simple: “The

Constitution’s Supremacy Clause establishes that

valid federal legislation can preempt state laws,” and

Title II of the ADA “trumps state regulations that

conflict with its requirements.” Id. As such, the

defendants could not rely on contrary state

requirements as an excuse for failure to follow federal

antidiscrimination laws. Id. at 508-09.

The Tenth Circuit’s decision in Barber also

directly conflicts with the First Circuit. 562 F.3d at

1233. There, the Tenth Circuit noted that the only

reason a defendant was excused from compliance with

federal antidiscrimination requirements was that the

state law at issue was not in direct conflict. Id. But,

had there been an actual conflict between the state

and federal schemes, the state law would not have

excused compliance with federal law. Id. “Reliance on

state statutes to excuse non-compliance with federal

laws is simply unacceptable under the Supremacy

Clause.” Id.

Then-Judge Gorsuch highlighted the conflict in

his concurrence. “If Colorado law had discriminated

on the basis of disability, in violation of the

Rehabilitation Act, the State defendants argue they

still shouldn’t be held liable, in part because they

were bound to follow state law.” Id. at 1234 (Gorsuch,

J., concurring). But, as Justice Gorsuch concluded, “a

state law at odds with a valid Act of Congress is no

law at all.” Id. “Accordingly, the demands of the

Rehabilitation Act do not yield to state laws that

discriminate against the disabled; it works the other

way around.” Id. (emphasis added). “State officials

who rely on their compliance with discriminatory

state laws as evidence of their reasonableness will

normally find themselves proving their own liability,

not shielding themselves from it.” Id.

The decisions of the Second, Fourth, Seventh,

Tenth, and Eleventh Circuits cannot be reconciled

with the First Circuit’s decision below. State laws

that are contrary to federal nondiscrimination laws

must yield to the demands of federal law. This Court

should grant the Petition to resolve the conflict among

the circuits.

II.

THE

FIRST

CIRCUIT’S

DECISION

BELOW DIRECTLY CONFLICTS WITH

DECISIONS FROM THIS COURT AND

THE

SECOND

AND

ELEVENTH

CIRCUITS CONCERNING WHETHER

THE PLAIN TEXT OF TITLE VII

PREEMPTS CONTRARY STATE LAWS.

The plaint text of Title VII explicitly provides

that employers are not excused from compliance with

Title VII’s accommodation requirements on the basis

of a conflicting state law:

Nothing in this subchapter shall be

deemed to exempt or relieve any person

from

liability,

duty,

penalty,

punishment provided by any present or

future law of any State or political

subdivision of a State, other than any such

law that purports to require or permit the

doing of any act which would be an

unlawful employment practice under this

subchapter.

42 U.S.C. §2000e-7 (emphasis added).

Congress also made plain that it intended to

preempt any state law that conflicts with its

nondiscrimination objectives in Title VII.

Nothing contained in any title of this Act

shall be construed as indicating an intent

on the part of Congress to occupy the field

in which such title operates to the

exclusion of State laws on the same subject

matter, nor shall any provision of this Act

be construed as invalidating any provision

of State law unless such provision is

inconsistent with any of the purposes of

this Act, or any provision thereof.

42 U.S.C. §2000h-4 (emphasis added).

The First Circuit below held that Title VII does

not always preempt state laws requiring employment

practices in direct conflict with Title VII’s

nondiscrimination requirements. That decision is in

direct conflict with the plain language of Title VII and

the decisions of this Court and the Second and

Eleventh Circuits.

The First Circuit Held that Title VII

Does Not Always Preempt Contrary

State Laws.

Despite Title VII’s unequivocal pronouncement

that employers are not excused from liability for

compliance with a state law “that purports to require

or permit the doing of any act which would be an

unlawful employment practice under this subchapter”

42 U.S.C. §2000e-7, the First Circuit held that

employers are excused from compliance with Title VII

when such compliance would violate contrary state

law. (App. 37a-38a.) Specifically, the First Circuit

held that Section 2000e-7 does not demonstrate that

Maine’s refusal to allow religious accommodations

from the Vaccine Mandate is preempted because Title

VII does not require such an accommodation. (App.

37a.) “Title VII could preempt the Mandate only if it

required the Providers to grant the plaintiffs’

requested accommodation. But granting that

accommodation would have exposed the Providers to

penalties for violating the Mandate.” (Id.) This

reasoning is entirely circular. Title VII plainly does

require reasonable accommodation of sincerely held

religious beliefs. Maine law, however, purported to

outlaw all accommodations. Concluding that Title VII

does not require employers to provide reasonable

accommodations because Maine law prohibits all

accommodations circularly guts the intended

protection of federal law and nullifies both Title VII

and the Supremacy Clause.

The First Circuit noted Petitioners’ position

that Section 2000e-7 preempts the State’s COVID-19

Vaccine Mandate. (App. 38a (noting Petitioners’

contention that 42 U.S.C. §2000e-7 “exempts the

Providers from liability for violating the Mandate,

which, they assert, purports to require the Providers

to violate Title VII by denying them their preferred

accommodation.”).) The court rejected that contention

stating that it was “an extremely broad view of Title

VII’s requirements” (id.), and that a violation of state

law excused compliance with Title VII. (App. 39a.)

The First Circuit’s only basis for so holding was that

“[t]he plaintiffs cite no case holding that Title VII

preempted a state law in analogous circumstances

involving religion.” Id. (emphasis original). As

discussed supra, however, the First Circuit noted that

there is precedent for the proposition that Title VII

preempts contrary state laws in the race

discrimination context. (App. 39a (citing Guardians

Ass’n of N.Y.C. Police Dep’t, Inc. v. Civil Serv.

Comm’n, 630 F.2d 79 (2d Cir. 1980)).) The First

Circuit ignored that 42 U.S.C. §2000h-4, in addition

to 42 U.S.C. §2000e-7, explicitly invalidates and

preempts state law directly contrary to Title VII’s

purposes and prohibited employment practices.

Despite the fact that simultaneous compliance

with the State’s COVID-19 Vaccine Mandate and

Title VII is not possible, the First Circuit held that the

contrary state law was not preempted. Specifically,

the First Circuit acknowledged that while the state

law creates a scenario where “the need to comply with

the Mandate, on the one hand, and with Title VII, on

the other hand, placed the Providers in a ‘damned-ifyou-do, damned-if-you-don’t situation,” the contrary

state law was nevertheless not preempted by Title

VII. (App. 37a-38a.)

The First Circuit’s analysis flips the

Supremacy Clause on its head, excuses employers

from compliance with Title VII solely on the basis of

contrary state law, criticizes Petitioners for relying on

analogous and directly on-point racial discrimination

precedent, and directly conflicts with precedent from

this Court and the Second and Eleventh Circuits. This

Court should grant the Petition to resolve the conflict.

This Court and the Second and

Eleventh Circuits Have Held that

the Plain Language of Title VII

Explicitly Preempts Contrary State

Laws.

In addition to the plain text of Section 2000e-7,

the First Circuit’s decision below conflicts with the

decisions from this Court and the Second and

Eleventh Circuits.

The First Circuit’s holding

below directly conflicts with

this Court’s precedents.

As this Court recognized in a different context,

federal nondiscrimination laws are intended to be “a

floor beneath which [protections] may not drop—not

a ceiling above which they may not rise.” California

Fed. Savings & Loan Ass’n v. Guerra, 479 U.S. 272,

285 (1987) (cleaned up). In Guerra, the Court was

faced with a California law that required employment

protections and benefits in excess of those required by

Pregnancy Discrimination Act, not—as here—

requiring diminished protection for protected

categories. Id. at 290. Contrary to Maine’s

discriminatory COVID-19 Vaccine Mandate at issue

here, the law in Guerra did not “prevent employers

from complying with both federal law (as petitioners

construe it) and the state law.” Id. Indeed, the

California law, which provided greater protections for

protected classes, did not stand as an obstacle to

compliance with federal law—it supplemented it to

provide enhanced protection. Id. at 291 (“This is not a

case where compliance with both federal and state

regulations is a physical impossibility or where there

is an inevitable collision between the two schemes of

regulation.”). As the Court noted, the Pregnancy

Disability Act “does not compel California employers

to treat pregnant workers better than other disabled

employees; it merely establishes benefits that

employers must, at a minimum, provide to pregnant

workers.” Id. (emphasis original). And, because

California provided greater protection than required

by federal law, the statutory scheme was “not

inconsistent with the purposes of the federal statute,

nor does it require the doing of an act which is

unlawful under Title VII.” Id. at 292.

Contrary to what the First Circuit held below,

this Court noted that Title VII explicitly preempts

state laws that permit or require the doing of an act—

here, denying all religious accommodation requests

from the COVID-19 Vaccine Mandate—that cannot

be reconciled with the requirements of Title VII. See

id. at 290 n.29. In fact, the arguments of the

petitioners in Guerra largely mirror the conclusion

reached by the First Circuit below. “Petitioners assert

that even if [the Pregnancy Disability Act] does not

require employers to treat pregnant employees

differently than other disabled employees, it permits

employers do so because it does not specifically

prohibit different treatment.” Id. (emphasis original).

The logical conclusion of the Guerra petitioners’

argument was that it required a finding that federal

law “permits any employer action that it did not

expressly prohibit.” Id. This is largely what the First

Circuit held below. (App. 38a.) This Court explicitly

and unequivocally rejected that conclusion: “We

conclude that ‘permit’ in [Section 2000e-7] must be

interpreted to pre-empt only those state laws that

expressly sanction a practice unlawful under Title

VII; the term does not pre-empt state laws that are

silent on the issue.” Id. (emphasis original).

Here, the State’s COVID-19 Vaccine Mandate

explicitly sanctioned—indeed, required—a practice of

blanket rejection of all religious accommodation

request under Title VII in relation to the COVID-19

Vaccine Mandate, irrespective of whether such

accommodations were reasonable, and irrespective of

whether such accommodations could be provided

without undue hardship. (App. 36a (noting that

employers “could not offer religious exemptions to

workers covered by the Mandate (since doing so would

not comply with the Mandate)” (emphasis original)).)

The First Circuit’s holding that such a mandate

requiring—or, at minimum, permitting—the doing of

an act prohibited by Title VII is not preempted is in

direct conflict with this Court’s precedent.

The direct conflict between the First Circuit’s

preemption holding below and this Court’s precedent

is further demonstrated by the Court’s corollary

holding concerning Section 2000e-7 in Shaw v. Delta

Air Lines, Inc., 463 U.S. 85 (1983). In Shaw, this

Court noted that “Title VII expressly preserves

nonconflicting state laws.” Id. at 101 (emphasis

added). “Insofar as state laws prohibit employment

practices that are lawful under Title VII, however,

preemption would not impair Title VII.” Id. at 103.

This is so because “Title VII does not itself prevent

States from extending their nondiscrimination laws

to areas not covered by Title VII.” Id. Citing Section

2000e-7, this Court held that Title VII’s preemption

analysis is concerned with state laws—such as

Maine’s mandate here—that permit or require

employment practices that Title VII explicitly

prohibits. Id. (“Quite simply, Title VII is neutral on

the subject of all employment practices it does not

prohibit.”). The reason for the distinction is plain:

“Title VII would prohibit precisely the same

employment practices, and be enforced in precisely

the same manner, even if no State made additional

employment practices unlawful.” Id.

As this Court stated in Albermarle Paper Co. v.

Moody, Section 2000e-7 explicitly preempts “state

statutes inconsistent with it.” 423 U.S. 405, 423 n.18

(1975). The First Circuit holding below that a state

law directly conflicting with Title VII is not

preempted cannot be reconciled with this Court’s

precedents.

The First Circuit’s holding

below directly conflicts with

decisions of the Second and

Eleventh Circuits.

The First Circuit’s holding also conflicts with

decisions of the Second and Eleventh Circuits. In

Bradshaw v. Sch. Bd. of Broward Cnty., 486 F.3d

1205 (11th Cir. 2007), the Eleventh Circuit held that

state laws that directly conflict with Title VII are

preempted as a matter of the plain language of the

statute. Id. at 1211. There, Florida imposed various

compensatory damages caps on employment

discrimination cases that did not conflict with Title

VII’s damages caps. Id. (“In the present case, Florida

does not want to impose liability for compensatory

damages beyond Title VII’s cap.”). Because the

Florida statutory scheme did not permit or require a

damages award that was inconsistent with or

contrary to Title VII, it was not preempted. See id.

(“Title VII will not be ‘deemed’ (that is, construed) to

prevent states from imposing liability in any way they

see fit, so long as the states do not interfere with Title

VII by requiring or permitting acts that Title VII

would forbid.” (emphasis added)).

The Second Circuit’s decision in Bridgeport

Guardians, Inc. v. Delmonte, 248 F.3d 66 (2d Cir.

2001) likewise recognized that Title VII preempts

contrary state laws. There, the Second Circuit held

that “Title VII explicitly relieves employers from any

duty to observe state law ‘which purports to require

or permit’ any discriminatory employment practice.”

Id. at 74 (quoting 42 U.S.C. §2000e-7). See also id. at

72 (noting that it is “axiomatic” that Title VII “would

preempt any contrary state law”).

CONCLUSION

The First Circuit’s decision below conflicts with

the precedent of this Court and the precedent of

numerous circuit courts concerning whether

compliance with a state law directly contrary to Title

VII can excuse noncompliance with Title VII. The

First Circuit’s decision below also conflicts with this

Court’s precedent and the precedent of other circuits

on the question of whether the plain language of Title

VII explicitly requires the preemption of contrary

state laws. This Court should grant the Petition and

resolve the conflicts on these questions of national

importance.

Respectfully submitted,

Mathew D. Staver

Counsel of Record

Anita L. Staver

Liberty Counsel

109 Second St., NE

Washington, D.C. 20002

(202) 289-1776

Horatio G. Mihet

Daniel J. Schmid

Liberty Counsel

P.O. Box 540774

Orlando, FL 32854

(407) 875-1776

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.