Petition for Writ of Certiorari — John Doe, et al., Petitioners v. Kathy Hochul, Governor of New York, et al.

Supreme Court briefMar 20, 2025

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No. ________

IN THE

Supreme Court of the United States

JOHN DOES 1-2, JANE DOES 1-3, JACK DOES 1-750,

JOAN DOES 1-750,

Petitioners,

KATHY HOCHUL, in her official capacity as Governor of

the State of New York, JAMES MCDONALD, in his

official capacity as Commissioner of the New York

State Department of Health, TRINITY HEALTH, INC.,

NEW-YORK PRESBYTERIAN HEALTHCARE SYSTEM, INC.,

WESTCHESTER MEDICAL CENTER ADVANCED

PHYSICIAN SERVICES, P.C.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Second 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

court@LC.org

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 previously noted,

“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 Second Circuit’s decision below impermissibly

flipped the Supremacy Clause on its head, holding

that employers could be excused from compliance

with Title VII when providing the accommodation for

religious beliefs required under Title VII would

purportedly violate state law. (App. 11a.) That can’t

be right. The questions presented are:

(1) Whether compliance with state laws directly

contrary to Title VII’s requirement to provide a

reasonable accommodation for religious beliefs 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 Johns Does 1-2, Jane Does 1-3,

Jack Does 1-750, and Joan Does 1-750. Respondents

are Trinity Health, Inc., New York-Presbyterian

Healthcare System, Inc., and Westchester Medical

Center Advanced Physician Services, as assignee of

WMC Health. Additional Parties to the proceedings

below are Kathy Hochul, in her official capacity as

Governor of the State of New York, James V.

McDonald, Commissioner of the New York State

Department of Health.1

DIRECTLY RELATED PROCEEDINGS

John Does 1-2, et al. v. Hochul, et al., No. 22-2858 (2d

Cir. Dec. 20, 2024), Summary Order Affirming

Dismissal Of Plaintiff’s Verified Complaint, reprinted

in Appendix at 1a-12a.

John Does 1-2, et al. v. Hochul, et al., No. 1:21 cv5067-AMD-TAM (E.D.N.Y. Sept. 30, 2022),

Memorandum Decision and Order Dismissing

Plaintiff’s Verified Complaint, reprinted in Appendix

at 13a-62a.

1 Plaintiffs did not assert Title VII claims against the New York

government officials, and thus the Additional Parties are not

subject to the claims asserted in this Petition.

TABLE OF CONTENTS

QUESTIONS PRESENTED…………………………….i

PARTIES…………………………………………………iii

DIRECTLY RELATED PROCEEDINGS…………...iii

TABLE OF APPENDICES…………………………….vi

TABLE OF AUTHORITIES…………………………..vii

OPINIONS AND ORDERS BELOW…….…………….1

JURISDICTION………………………………………….1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED……………………………..1

STATEMENT OF THE CASE………………………….3

INTRODUCTION………………………………..3

II.

FACTUAL BACKGROUND……………………8

III.

The Governor’s COVID-19 Vaccine

Mandate…………………………………...8

Petitioners’ Sincerely Held Religious

Beliefs Against Receiving the COVID-19

Vaccines………………………………….10

Respondents Relied On Contrary State

Law to Excuse Their Noncompliance

with Title VII and Deny Without Any

Consideration

The

Religious

Accommodation

Requests

the

Petitioners……………………………….13

PROCEDURAL HISTORY……………………16

REASONS FOR GRANTING THE PETITION…….17

I. THE SECOND 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………...17

A. The Second Circuit Held that Employers May

Disregard Title VII’s Requirements to Provide

Religious Accommodations Solely on the Basis

of Contrary State Law………………………….17

B. The Second, Sixth, Seventh, and Ninth Circuits

Have Held that Contrary State Laws Must

Yield to Title VII’s Antidiscrimination

Requirements…………………………………...20

C. The Second, Fourth, Seventh, Tenth, and

Eleventh Circuits Have Held that Contrary

State Laws Must Yield to Federal

Nondiscrimination Requirements...........…...25

II. THE SECOND 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

A. The Second Circuit Ignored Title VII’s Express

Language

Preempting

Contrary

State

Laws……………………………………..……….33

B. The First Circuit Has Held That Title VII Does

Not Always Preempt Contrary State

Laws…………………………………………..….34

C. This Court and the Second and Eleventh

Circuits Have Held that the Plain Language of

Title VII Explicitly Preempts Contrary State

Laws……………………………………………...36

1. The decision below directly conflicts with

this Court’s precedents…………………….36

2. The decision below and the First Circuit’s

decision in Lowe directly conflict with

decisions of the Second and Eleventh

Circuits.......................................................40

CONCLUSION………………………………………….41

TABLE OF APPENDICES

APPENDIX A – JOHN DOES 1-2, et al. v. HOCHUL,

et al., No. 22-2858 (2d Cir. Dec. 20, 2024), Summary

Order Affirming District Court’s Dismissal of

Plaintiff’s Verified Complaint...................................1a

APPENDIX B - JOHN DOES 1-2, et al. v. HOCHUL,

et al., No. 1:21-cv-5067-AMD-TAM (E.D.N.Y. Sept.

30, 2022), Memorandum Decision and Order

Dismissing Plaintiff’s Verified Complaint………...13a

APPENDIX C – First Amended Verified Complaint

for Injunctive and Declaratory Relief, and

Damages………………………………………………..63a

vii

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) ................................................ 24, 25

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

562 F.3d 1222 (10th Cir. 2009) .................. 7, 25, 31

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

Cir. 1984) .............................................................. 19

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) ................25, 26, 27, 28

D’Cunha v. Northwell Health Sys., 2023 WL 7986441

(2d. Cir. Nov. 17, 2023) ........................................ 19

Does 1-2 v. Hochul, 2022 WL 836990 (E.D.N.Y. Mar.

18, 2022) ............................................................... 16

Does 1-3 v. Mills, 142 S. Ct. 17 (2021) ....................... 4

Dr. A. v. Hochul, 142 S. Ct. 2569 (2022) ................... 4

Dr. A. v. Hochul, 2021 WL 4189533 (N.D.N.Y. Sept.

14, 2021) ............................................................... 16

Groff v. DeJoy, 600 U.S. 447 (2021)......................... 23

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

Comm’n, 630 F.2d 79 (2d Cir. 1980) ........ 21, 25, 35

Haywood v. Drown, 556 U.S. 729 (2009) ................... 7

viii

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

471 U.S. 707 (1985) ................................................ 8

Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023) 18, 34, 35,

36, 40

Mary Jo C. v. New York State & Local Ret. Sys., 707

F.3d 144 (2d Cir. 2013) ............................ 25, 28, 29

Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494 (4th

Cir. 2016) ........................................................ 25, 30

Palmer v. General Mills Inc., 513 F.2d 1040 (6th Cir.

1975) ......................................................... 21, 24, 25

Quinones v. City of Evanston, 58 F.3d 275 (7th Cir.

1995) ......................................................... 26, 29, 30

Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th

Cir. 1971) .............................................21, 22, 23, 25

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) .......... 19

We The Patriots USA, Inc. v. Hochul, 17 F.4th 266

(2d Cir. 2021).................................................. 19, 20

Williams v. General Foods Corp., 492 F.2d 399 (7th

Cir. 1974) .................................................. 21, 24, 25

Statutes

42 U.S.C. §2000e .... 2, 4, 21, 23, 24, 26, 32, 33, 35, 36,

38, 39

42 U.S.C. §2000h ................................................ 33, 35

Other Authorities

2 Timothy 3:16 (King James) ................................... 10

Exodus (King James) ............................................... 11

Genesis (King James) ............................................... 10

Psalm (English Standard) ....................................... 10

Constitutional Provisions

U.S. Const. amend. I .................................................. 1

U.S. Const. art. VI ...................................................... 7

OPINIONS AND ORDERS BELOW

The Second Circuit’s summary order affirming the

dismissal of Petitioners’ complaint is not yet

published but available electronically at 2024 WL

5182675 (2d Cir. Dec. 20, 2024) and reprinted in the

Appendix at 1a-12a. The district court’s order

dismissing Petitioners’ complaint is reported at 632 F.

Supp. 3d 120 (E.D.N.Y. 2022) and reprinted in the

Appendix at 13a-62a.

JURISDICTION

The Second Circuit entered its summary order and

judgment, affirming the district court’s final

judgment dismissing Petitioners’ Title VII claims, on

December 20, 2024. (App. 1a-12a.) 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 . . . .”

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 New York 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 New York receive a COVID-19

vaccination as a condition of continued employment in

the healthcare industry. (App. 121a, Verified

Complaint (“Compl.”) ¶8.) All Petitioners were

unceremoniously terminated from their employment

and suffered financial, personnel, and professional

hardship as a result. (App. 11a.) When discussing a

different, similarly situated group of healthcare

workers, Justice Gorsuch described the plight of

those, such as Petitioners, facing discrimination as

follows:

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.

Does 1-3 v. Mills, 142 S. Ct. 17, 22 (2021) (Gorsuch, J.,

dissenting from denial of injunctive relief) (emphasis

added).) And, in a case dealing with the same vaccine

mandate from New York, albeit on a different

question, Justice Thomas noted that he “would not

miss the change to answer this recurring question in

the monal course on our merits docket.” Dr. A. v.

Hochul, 142 S. Ct. 2569, 2572 (2022).

In 2021, the State of New York issued a mandate

the required every healthcare worker in the State of

New York accept a COVID-19 vaccine as a condition

of continued employment in the healthcare industry.

(App. 121a, Compl. ¶6.) Though initially permitting

religious accommodations to the vaccine, New York

subsequently revoked that exemption. (App. 132a,

Compl. ¶¶40-41.) After the rule change, no healthcare

worker in New York was permitted to seek or receive

any accommodation for their sincerely held religious

beliefs. (Id.)

Despite the plain import of Title VII’s requirement

that

employers

provide

accommodation

for

Petitioners’ sincerely held religious convictions, 42

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

informed Petitioners that their religious convictions

must be overridden by contrary state law, with no

accommodation

whatsoever.

When

rejecting

Petitioners’ request for religious accommodation,

Respondents informed Petitioners that Title VII did

not apply. Even a cursory review of Respondents’

positions with respect to accommodating religious

beliefs under Title VII reveals the Second Circuit’s

grave error.

Petitioner John Doe 2 had received religious

exemption and accommodation from compulsory

vaccination for 10 years prior to COVID-19 and

requested to continue receiving an accommodation for

his sincerely held religious beliefs. (App., 143a,

Compl. ¶81.) In fact, John Doe 2 received an

accommodation from the COVID-19 vaccine—prior to

the State’s mandate—which was subsequently

rescinded by his employer, New York-Presbyterian,

after the Governor’s mandate. (Id.) Prior to the

rescission of his previously granted religious

accommodation, John Doe 2 inquired of New YorkPresbyterian whether his decades-old religious

accommodation would continue, and New YorkPresbyterian told him: “Religious exemptions are no

longer accepted.” (App. 143a-144a, Compl. ¶¶82-83

(emphasis added).)

Petitioner Jane Doe 1 was similarly afforded a

religious accommodation prior to COVID-19 and was

granted an initial accommodation from the COVID-19

vaccine. (App. 144a, Compl. ¶84.) Once the Governor

instituted the COVID-19 vaccine mandate and

revoked the availability of religious accommodations,

Jane Doe 1’s religious accommodation was revoked by

her employer. (Id., ¶85.) New York-Presbyterian

stated: “As a health care institution in NYS, NYP

must follow the NYS DOH requirements as they

evolve. This means that NYP can no longer consider

any religious exemptions to the COVID vaccination

even those previously approved.” (Id., ¶86 (emphasis

added).)

Petitioner Jane Doe 2 submitted a religious

accommodation request from the mandatory COVID19 vaccine from her employer, Westchester Medical

Center Advanced Physicians Services (“WMC”). (App.

145a, Compl. ¶88.) Jane Doe 2 was told that her

request for an accommodation would not even be

considered because of the state law prohibiting

religious accommodations. (Id., ¶89.) Specifically,

WMC stated:

On August 26, hospitals were notified that the

New York State Department of Health was

removing the option allowing hospitals to offer a

religious exemption to health care workers from

receiving

the

COVID-19

vaccination.

Accordingly, WMC Health, in order to comply

with DOH Regulations, will no longer accept

applications for a religious exemption and those

applications already received will be not be

considered.

(App. 145a-146a, Compl. ¶89 (emphasis added).)

Jane Doe 3 submitted a religious accommodation

request from her employer, Trinity Health, and was

initially approved for such an accommodation. (App.

146a, Compl. ¶90.) After New York stated that statelaw would no longer allow for religious

accommodations, Jane Doe 3’s previously accepted

accommodation was revoked on the basis of state law.

(Id., ¶91.) Trinity Health stated: “NYS DOH will not

permit exemptions or deferrals for sincerely held

religious beliefs,” because it was purportedly

“required to comply with state law,” even if that state

law violated Title VII’s commands. (Id., ¶¶92-93.)

Respondents refused to consider Petitioners’

religious accommodation request under Title VII, and

terminated Petitioners on the sole basis that

compliance with Title VII would require violation of

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

One would search in vain for a merited justification

for such a constitutionally inverted analysis, but the

Second Circuit purportedly found one. As the Second

Circuit saw it, “granting [Petitioner’s] sole request for

a religious exemption would have required the Private

Defendants to violate the state regulation.” (App.

11a.) 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). “[T]he 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 Second Circuit below, is that

federal law is supreme over any contrary state law.

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 Second 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 Nation’s Charter demands a different

outcome. This Court should grant the Petition.

FACTUAL BACKGROUND

The Governor’s

Mandate.

COVID-19

Vaccine

On August 16, 2021, New York’s Governor

announced that the State will require healthcare

workers satisfying the definition of “covered

personnel” to accept one of the then-available

COVID-19 vaccines to remain employed in the

healthcare profession (the “Vaccine Mandate”). (App.

130a, Compl. ¶33.) The Vaccine Mandate defined

“covered personnel” to include

All persons employed or affiliated with a covered

entity, whether paid or unpaid, including but

not limited to employees, members of the

medical and nursing staff, contract staff,

students, and volunteers, who engage in

activities such that if they were infected with

COVID-19, they could potentially expose

patients, residents, or personnel working for

such entity to the disease.”

(App. 131a, Compl. ¶36.)

The Vaccine Mandate provided that “covered

entities must “continuously require all covered

personnel to be fully vaccinated against COVID-19.”

(App. 130a, Compl. ¶34.) The Governor threatened to

revoke the licenses of all covered healthcare

employers failing to mandate that their employees

receive a COVID-19 vaccine. (App. 11a.)

At first, New York followed the commands of

federal law and included the option for religious

adherents to obtain an accommodation for their

sincerely held religious beliefs. (App. 131a, Compl.

¶37.) In its Order for Summary Action on August 18,

New York included a religious exemption. (Id.

(“Religious Exemption. Covered entities shall grant a

religious exemption for COVID-19 vaccination for

covered personnel if they hold a genuine and sincere

religious belief contrary to the practice of

immunization,

subject

reasonable

accommodation by the employer.”).)

That compliance with federal law, however, was

short-lived. Eight days after initially permitting

employees to obtain a religious accommodation, New

York amended the rule completely revoking the

religious accommodation option and prohibiting

employers from considering or granting any such

religious accommodations to the vaccine mandate.

(App. 132a, Compl. ¶¶39-40.)

Petitioners’ Sincerely Held Religious

Beliefs Against Receiving the COVID19 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. 132a, Compl. ¶42.) 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. (App. 132a-133a, Compl. ¶43.)

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., ¶44 (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., ¶45.)

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. (Id., ¶46 (quoting, inter alia,

Psalm 139:13–14 (ESV); Psalm 139:16 (ESV); Isaiah

44:2 (KJV)).) Petitioners also believe that every

child’s life is sacred because each child is made in the

image of God. (App. 134a, Compl. ¶47 (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., ¶48 (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. 134a, Compl. ¶49

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

sincerely held religious beliefs that anything that

condones, supports, justifies, or benefits from the

taking of innocent human life via abortion is sinful,

and contrary to the Scriptures. (App. 134a-135a,

Compl. ¶50.) 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., ¶51.) 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., ¶52.)

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. 135a, Compl. ¶53.) 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., ¶54.) Petitioners have sincerely held

religious

objections

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. 136a, Compl. ¶57.)

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-CoV-2 spike protein) or to

characterize the SARS-CoV-2 spike protein.” (Id.,

¶58.) 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.

(App. 137a, Compl. ¶59.)

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.

Petitioners also conveyed to their employers that

they have other sincerely held religious objections,

rooted in Holy Scripture, that compelled them to

abstain from receiving one of the COVID-19 vaccines.

(App. 137a-139a, Compl. ¶¶61-66.)

Petitioner John Doe 2 is a member of the Church of

Christ, Scientist, and has a sincerely held religious

objection to all vaccines. (App. 139a-140a, Compl.

¶67.) John Doe 2 believes that all healing comes

through prayer, rather than vaccination. (Id.) As John

Doe 2’s 10-years of religious accommodations

demonstrated (App. 143a, Compl. ¶¶81-82), John Doe

2 has held sincere religious objections to vaccines his

entire life and had lived his life consistent with those

beliefs long prior to New York’s mandate. (App. 140a,

Compl. ¶69.)

Respondents Relied 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 his sincerely held religious beliefs,

John Doe 2, for the last 10 years of his employment

with New York-Presbyterian, has received an

exemption from mandatory vaccines. (App. 143a,

Compl. ¶81.) And, on July 28, 2021, Defendant New

York-Presbyterian approved John Doe 2 for an

accommodation from the COVID-19 vaccine. (Id.)

After an announcement from his employer that the

Governor’s

mandate

precluded

New

YorkPresbyterian from offering or accepting religious

accommodations, John Doe 2 communicated with his

superiors to inquire whether his previously granted

religious accommodation would be honored. (Id.,

Compl. ¶82.) John Doe 2’s employer responded to him

that, “Religious exemptions are no longer accepted.”

(Id., Compl. ¶83 (emphasis added).)

Petitioner Jane Doe 1 also requested and received

a religious accommodation for her sincerely held

objections to the COVID-19 vaccine, but had that

previously granted accommodation revoked by her

employer after the State removed the option for

religious accommodations from the vaccine mandate.

(App. 143a, Compl. ¶84.)

Specifically, New York-Presbyterian stated:

Late last week, the Public Health and

Health Planning Council of the NYS

Department of Health formally approved

and adopted the state’s COVID-19

vaccination requirement for health care

workers. In addition, the Council made the

determination

exclude

religious

exemptions as an alternative to receiving

the vaccine. . . . As a health care institution

in NYS, NYP must follow the NYS DOH

requirements as they evolve. This means that

NYP can no longer consider any religious

exemptions to the COVID vaccination - even

those previously approved.

(App. 144a-145a, Compl. ¶86 (emphasis added).)

In short, Jane Doe 1’s employer told her it was

required to ignore Title VII and federal law on the

basis of contrary state law. (Id.)

Jane Doe 2 submitted a request for a religious

accommodation to Respondent WMC Health outlining

her religious beliefs against receipt of the COVID-19

vaccine. (App. 145a, Compl. ¶88.) The very next day,

WMC Health responded to Jane Doe 2 informing her

that because of the Governor’s mandate, WMC Health

was not even considering and reviewing, much less

granting, religious exemption or accommodation

requests. (Id.) Specifically, Jane Doe 2’s employer

informed her:

On August 26, hospitals were notified that

the New York State Department of Health

was removing the option allowing hospitals

to offer a religious exemption to health care

workers from receiving the COVID-19

vaccination. Accordingly, WMC Health, in

order to comply with DOH Regulations, will

no longer accept applications for a religious

exemption and those applications already

received will be not be considered.

(App. 145a-146a, Compl. ¶89 (emphasis added).)

Jane Doe 3 submitted a request for a religious

accommodation from Defendant Trinity Health, and

was initially approved for the religious exemption.

(App. 146a, Compl. ¶90.) Trinity Health sent a

communication to Jane Doe 3 informing her that her

religious exemption had been revoked. (Id., Compl.

¶91.) Specifically, Jane Doe 3’s employer informed

her: “[u]nder the emergency regulations the NYS DOH

will not permit exemptions or deferrals for: Sincerely

held religious beliefs, Pregnancy, Planning to become

pregnant.” (Id., Compl. ¶92 (emphasis added).)

Jane Doe 3’s employer went further, explicitly

noting that its refusal to provide a Title VII

accommodation was based on state law that

contradicted Title VII’s requirements: “we are

required to comply with state law” to the exclusion of

any contrary federal law. (Id., Compl. ¶93 (emphasis

added).)

PROCEDURAL HISTORY.

Petitioners initiated this action on September 10,

2021, with the filing of a Verified Complaint and a

Motion for Temporary Restraining Order and

Preliminary Injunction. On September 13, the district

court held a temporary restraining order (TRO)

hearing. See Does 1-2 v. Hochul, 2022 WL 836990

(E.D.N.Y. Mar. 18, 2022). After taking the matter

under advisement, the district court denied the TRO

as moot in light of a statewide TRO that was issued

by the United States District Court for the Northern

District of New York in Dr. A. v. Hochul, 2021 WL

4189533 (N.D.N.Y. Sept. 14, 2021). See Does 1-2, 2022

WL 836990, *2. Subsequent proceedings were held

concerning the preliminary injunction in Dr. A, but

the district court never acted upon Petitioner’s motion

for preliminary injunction until August 2, 2022. (App.

30a.) All defendants moved to dismiss Petitioner’s

complaint, which the district court granted on

September 30, 2022. (App. 14a.)

Petitioners timely appealed to the Second Circuit,

which issued its summary order dismissing

Petitioners’ Complaint on December 20, 2024. (App.

1a.)

REASONS FOR GRANTING THE PETITION

THE SECOND 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.

The

Second

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, in

their Complaint, Petitioners adequately raised a

prima facie case of religious discrimination under

Title VII. (App. 10a.) Thus, Petitioners’ appeal below

turned on Respondents’ undue hardship defense. (Id.)

Respondents’ sole defense below was that providing a

religious accommodation to Petitioners would have

required them to violate contrary state law and thus

constituted an undue hardship. The Second Circuit

held that the state law could trump Title VII’s

requirements to provide a religious accommodation.

(App. 10a (“Plaintiffs were all covered personnel

under Section 2.61, which meant that granting their

sole request for a religious exemption would have

required the Private Defendants to violate the state

regulation.”).) As its sole rationale, the Second Circuit

stated that following the commands of Title VII to

provide a reasonable accommodation to Petitioners’

religious objections “would have subjected the Private

Defendants to financial penalties or a suspension or

revocation of their operating license,” which the

Second Circuit found was “more than suffic[ient] to

demonstrate that the Private Defendants were

subject to such hardships here.” (App. 11a.)

Simply put, the Second Circuit held that

Respondents were excused from compliance with

Title VII because reliance on a state law directly

contrary to Title VII constituted an undue hardship.

(App. 11a.)

The Second Circuit’s decision below reflects a

larger problem percolating in the lower courts that

permits noncompliance with federal law to be excused

if a contrary State requires violating federal law. The

First Circuit similarly held that compliance with

state law can excuse an employer’s non-compliance

with Title VII in Lowe v. Mills, 68 F.4th 706 (1st Cir.

2023). There, the First Circuit noted that “[t]he only

reasonable inference from [Petitioners’ complaint]

and from the relevant Maine law . . . 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].” Id. at 720. And, the First Circuit was

unequivocal in its acceptance of contrary state law as

a basis to excuse non-compliance with federal law.

“[G]ranting [a religious] accommodation would have

exposed the Providers to penalties for violating [the

State] Mandate, and thus constituted an undue

hardship not required by Title VII.” Id. at 724.

The Second Circuit’s decision below relied upon

another decision from the same court that likewise

held that state laws directly contrary to Title VII

serve as a justification for ignoring the

nondiscrimination requirements in Title VII. (App.

11a (citing D’Cunha v. Northwell Health Sys., 2023

WL 7986441, *3 (2d. Cir. Nov. 17, 2023) (affirming

dismissal of a Title VII claim against a healthcare

provider that refused to provide a religious

vaccination accommodation because such an

accommodation would have violated state law)).

And, this problem is likewise repeated in 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. Board of

Education 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 Second Circuit’s decision in We The Patriots

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

compounds this problem even further. 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 employees with a religious accommodation.

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 other decisions mentioned supra, was that

state law excused noncompliance with Title VII’s

requirements to provide a religious accommodation.

17 F.4th at 292-93. The decision of the Second Circuit

below, along with the decisions of the First, Second,

Third, and Ninth Circuits, are in direct conflict with

the decisions of other circuits and represent a

question of exceptional importance this Court should

resolve. 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 or the

Constitution.

The Second, Sixth, Seventh, and Ninth

Circuits Have Held that Contrary State

Laws Must Yield to Title VII’s

Antidiscrimination Requirements.

The Second Circuit’s decision below, along with the

decisions of the First, 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 Association, 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 rankordering 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).

That Guardians Association involved racial

discrimination

rather

than

the

religious

discrimination at issue here (App. 10a-11a) is of no

moment because Title VII equally prohibits both

religious and racial discrimination, 42 U.S.C. §2000e2, 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. The Supreme Clause demands a

different pecking order. The Second Circuit’s decision

below directly conflicts, and cannot be reconciled,

with the Guardians Association.

The Second Circuit’s decision below 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, to employ

her in certain positions, the employer would have run

afoul of California’s Industrial Welfare Order No. 963 and certain California labor code provisions. Id.

The female employee filed 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 Second

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.

Indeed, by enacting Title VII’s protection from

religious discrimination, Congress mandated “that an

employer reasonable accommodate an employee’s

practice of religion, not merely assess the

reasonableness

particular

possible

accommodation or accommodations.” Groff v. DeJoy,

600 U.S. 447, 473 (2021). And, Congress included in

that same statute an express exemption relieving

employers from compliance with state law that

demands “the doing of any act which would be an

unlawful

employment

practice

under

this

subchapter.” 42 U.S.C. §2000e-7. Thus, Congress

explicitly exempted employers from liability for

alleged violations of state law that require unlawful

employment practices under Title VII. It cannot be

gainsaid that the inclusion of such an exemption

prohibits employers from relying on state laws to

violate Title VII.

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 Second

Circuit’s decision below.

The Seventh Circuit’s decision in Williams is also

in direct conflict with the Second Circuit’s decision

below. 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 Second 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 Second

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

Sixth, Seventh, and Ninth Circuits directly conflict

with the Second Circuit’s decision below and reflect

an ever-increasing problem among the lower courts

that are permitting employers to excuse their

noncompliance with federal law by relying on

discriminatory state law directly at odds with Title

VII. 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 Second 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 courts held

that—regardless of the nature of the federal

antidiscrimination statute at issue—reliance on

contrary state laws was no excuse from liability for a

violation of federal law.

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. Campbell

rejected this argument.

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. 11a (noting that the vaccine mandate

required as a condition of business licensure that

Respondents

refuse

provide

religious

accommodation to COVID-19 vaccination).)

Universal’s defense was premised on the notion

that state law demanded it discriminate against the

plaintiff in violation of federal law. 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 Second 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 Second Circuit below. (App.

10a-11a (noting that “granting their [religious

accommodation] request would have required Private

Defendants to violate the state regulation”).) 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 Second Circuit’s

decision below. (App. 11a.) The Second Circuit below

flipped that analysis and said, in essence, if Title VII

required Respondents to accommodate Petitioners’

religious beliefs, and state law forbids it, the

Respondents are free to follow state law. To use the

Eleventh Circuit’s words: that can’t be right.

The Second Circuit’s decision in Mary Jo likewise

directly conflicts with the 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 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. Under the Second Circuit’s

reasoning below, Title VII is powerless to accomplish

its protection of religious beliefs when states decide

such accommodation is not necessary.

The Seventh Circuit’s decision in Quinones

conflicts with the Second Circuit’s decision below. 58

F.3d 275. There, Illinois state law prohibited the

provision of certain employment 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 Second

Circuit’s rationale 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 Second 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

noncompliance with federal law. Id. “Reliance on state

statutes to excuse non-compliance with federal laws is

simply unacceptable under the Supremacy Clause.”

Id. (emphasis added).

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 Second 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.

THE SECOND CIRCUIT’S DECISION

BELOW DIRECTLY CONFLICTS WITH

DECISIONS FROM THIS COURT AND THE

SECOND AND ELEVENTH CIRCUITS

CONCERNING WHETHER THE PLAIN

TEXT

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 Second Circuit below ignored Title VII’s

statutory preemption of contrary state laws. Its

refusal to invalidate contrary state laws explicitly

preempted by Title VII is in direct conflict with the

plain language of Title VII and the decisions of this

Court and the Second and Eleventh Circuits.

The Second Circuit Ignored Title VII’s

Express

Language

Preempting

Contrary State Laws.

Despite Title VII’s explicit provision relieving

employers from liability for violations of contrary

state laws, the Second Circuit nevertheless held that

Respondents would have suffered “financial penalties

or a suspension or revocation of their operating

license” for complying with state law. (App. 11a.) The

Second Circuit ignored Section 2000e-7 providing a

complete exemption from such penalties based on

compliance with the requirements of Title VII. The

decision below exacerbates a conflict among the

circuits.

The First Circuit Has 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 has held that

employers are excused from compliance with Title VII

when such compliance would violate contrary state

law. Lowe, 68 F.4th at 723-24. Specifically, the First

Circuit held that Section 2000e-7 does not

demonstrate that a state’s refusal to allow religious

accommodations from a virtually identical vaccine

mandate is preempted because Title VII does not

require such an accommodation. Id. “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.

at 724.

That reasoning is entirely circular. Title VII plainly

does require reasonable accommodation of sincerely

held religious beliefs. Maine law, however, purported

to outlaw all such 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. Id. at 724 (noting the plaintiff’s

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. Id.

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. Id. at 725 (citing Guardians

Ass’n, 630 F.2d at 79). The First Circuit ignored that

42 U.S.C. §2000h-4, in addition to 42 U.S.C. §2000e7, 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. The Second Circuit’s

decision below tacitly agreed with this notion by

rejecting Petitioners’ reliance on Section 2000e-7.

(App. 10a-11a.) 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-if-you-do,

damned-if-you-don’t situation,” the contrary state law

was nevertheless not preempted by Title VII. Lowe,

68 F.4th at 725.

The First Circuit’s analysis flips the Supremacy

Clause on its head and excuses employers’

noncompliance with Title VII solely on the basis of

contrary state law. The Second Circuit’s decision

ignores that problem. 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

decision below and the First Circuit’s decision in Lowe

conflict with the decisions from this Court and the

Second and Eleventh Circuits.

The decision below

conflicts

with

this

precedents.

directly

Court’s

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 New York’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.

The 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 Second 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

Second Circuit allowed below. (App. 11a.) 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. 10a-11a.) Allowing

state law to trump Title VII’s requirements directly

conflicts with this Court’s precedent.

The direct conflict between the First and Second

Circuits 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 New

York’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). Finding that a state law directly conflicting

with Title VII is not preempted and can be used to

justify noncompliance with Title VII cannot be

reconciled with this Court’s precedents.

The decision below and the First

Circuit’s decision in Lowe directly

conflict with decisions of the

Second and Eleventh Circuits.

The decision below and the First Circuit’s holding

in Lowe also conflict 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 Florida’s statutory scheme did not permit or

require a damages award that was inconsistent with

or contrary to Title VII, it was not preempted. 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) 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 (it is

“axiomatic” that Title VII “would preempt any

contrary state law”).

The decision below cannot be reconciled with these

precedents, this Court’s precedent, or the plain

language of Title VII. The Court should grant the

Petition and resolve the conflict.

CONCLUSION

The Second Circuit’s decision below conflicts with

the precedent of this Court and the precedent of

Second, Fourth, Sixth, Seventh, Ninth, Tenth, and

Eleventh Circuits concerning whether compliance

with a state law directly contrary to Title VII can

excuse noncompliance with Title VII. The Second

Circuit’s decision below also conflicts with this Court’s

precedent and the precedent of the Second and

Eleventh Circuits concerning 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.

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.