Reply Brief — John Doe, et al., Petitioners v. Kathy Hochul, Governor of New York, et al.

No. 24-1015

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,

v.

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

REPLY IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

Mathew D. Staver

Horatio G. Mihet

Counsel of Record

Daniel J. Schmid

Anita L. Staver

LIBERTY COUNSEL

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

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

REASONS FOR GRANTING THE PETITION ........ 1

I. This case presents a unique vehicle to vindicate

important federal interests and preclude

States from ignoring the plain text of federal

law. ................................................................... 1

II. Hospital Respondents’ attempt to reframe the

Questions Presented obfuscates the fact that

the Second Circuit permitted Hospital

Respondents to violate Title VII on the basis of

conflicting state law in direct conflict with this

Court’s precedents. .......................................... 4

A. Hospital Respondents categorically denied

all religious accommodation requests on the

basis of state law. ....................................... 4

B. Hospital Respondents ignore Title VII’s

express exemption and liability shield by

claiming that it would have been undue

hardship to accommodate Petitioners’

accommodation requests. ........................... 6

III. State and Hospital Respondents’ suggestion

that Petitioners’ erred by only requesting an

exemption ignores Title VII’s accommodation

requirement

and

the

fact

that

all

accommodations are predicated on an

exemption to the objectionable employment

requirement. .................................................... 7

IV. State Respondents’ callously indifferent

suggestion that the Court should not review

claims

arising

from

their

blatantly

unconstitutional State laws because it was

ii

repealed ignores Petitioners’ suffered actual

damages under Title VII. .............................. 12

CONCLUSION ......................................................... 14

iii

TABLE OF AUTHORITIES

Cases

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

562 F.3d 1222 (10th Cir. 2009) .............................. 4

Broderick v. Donaldson,

437 F.3d 1226 (D.C. Cir. 2006)............................... 8

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

72 F.4th 1245 (11th Cir. 2023) ........................... 2, 4

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015). ........................................... 8, 9

Genesis Healthcare Corp. v. Symcyzk,

569 U.S. 66 (2013) ................................................ 12

Groff v. DeJoy, 600 U.S. 447 (2023)....................... 1, 8

Hebrew v. Texas Dep’t of Crim. Justice,

80 F.4th 717 (5th Cir. 2023) ................................. 10

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020) ................................ 11

Occidental Life Ins. Co. of Cal. v. EEOC,

432 U.S. 355 (1977). ............................................. 13

Quionones v. City of Evanston,

58 F.3d 275 (7th Cir. 1995) .................................... 6

Sheehan v. Purolator Courier Corp.,

676 F.2d 877 (2d Cir. 1981) .................................. 13

Students for Fair Admissions, Inc. v. Presidents and

Faculty of Harvard Coll., 600 U.S. 181 (2023) ...... 3

Statutes

20 U.S.C. §1681(a)...................................................... 3

34 C.F.R. §106.41(b) ................................................... 3

42 U.S.C. §12201(b) .................................................... 2

42 U.S.C. §2000d ........................................................ 2

42 U.S.C. §2000e-5(f)(1) ........................................... 13

1

REASONS FOR GRANTING THE PETITION

I.

This case presents a unique vehicle to

vindicate important federal interests and

preclude States from ignoring the plain

text of federal law.

This case is an ideal vehicle to address the

questions presented because the state law and Title

VII are in conflict. If not corrected, the Second

Circuit’s decision would allow any state to pass a law

ordering employers, educational institutions, and

businesses to violate federal law, be it Titles VI (race

discrimination in education), VII (employment), IX

(sex discrimination in education), the Americans with

Disabilities Act – and the list goes on.

“Title VII requires that an employer reasonably

accommodate an employee’s practice of religion, not

merely that it assess the reasonableness of a

particular possible accommodation.” Groff v. DeJoy,

600 U.S. 447, 472 (2023). State Respondents

vaccination mandate explicitly excluded Petitioners

from obtaining any accommodation under Title VII

for their religious beliefs because it compelled strict

compliance with the vaccination requirement. App.

23a (“Rule 2.61 did not include a religious exemption”

to the vaccination requirement); App.11a (“granting

their sole request for a religious exemption would

have required Private Defendants to violate the state

regulation” (emphasis added)). Specifically, the

Second Circuit held that granting any accommodation

that included exemption from the vaccine

requirement—even though plainly compelled by Title

2

VII—was an undue hardship because “such an

exemption would have violated [State law].” App.11a.

Under the Second Circuit’s formulation, employers

are excused from the requirements of federal law if

any state law compels them to act to the contrary.

If that stands, all federal law becomes subservient

to state governors and legislators who think they have

a better idea.

Consider the Americans with Disabilities Act:

Assume New York passed a law that “required public

accommodations to discriminate against those with a

disability—say, to get a business license,” Campbell

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

1257 (11th Cir. 2023) (citing 42 U.S.C. §12201(b)),

and “subjected [businesses] to financial penalties or a

suspension or revocation of their operating license”

for refusing to comply with State law. App.11a. Under

the Second Circuit’s decision below, businesses that

discriminate against individuals in wheelchairs could

not be sued under the ADA and would face no liability

because state law imposed financial penalties and a

potential revocation of their license for compliance

with the ADA and violation of the contrary State law.

App.11a. That cannot be right.

Or, consider race-based discrimination under Title

VI of the Civil Rights Act, 42 U.S.C. §2000d. Federal

law prohibits discriminating against individuals in

public education because of their race. Assume New

York passed a law that, as a condition of state

accreditation and funding, colleges are required to

limit admission of white male applicants to 25% of the

3

admitted class and charge them a 25% tuition

enhancement to assist with the tuition payments of

minority students. Assume further that the State law

imposed financial penalties and revocation of

accreditation on New York colleges that refused to

comply. Such a state law would plainly subject white

male applicants to discrimination on account of their

race in violation of Title VI. See Students for Fair

Admissions, Inc. v. Presidents and Faculty of Harvard

Coll., 600 U.S. 181, 218 (2023) (“our cases have

stresses that an individual’s race may never be used

against him in the admissions process”). Under the

Second Circuit’s decision below, the threat of such

penalties by operation of New York law would excuse

a New York college’s compliance with Title VI because

it faced penalties under State law.

Consider Title IX that prohibits discrimination “on

the basis of sex” with regards to participation and

benefits of “any education program.” 20 U.S.C.

§1681(a). At the same time, Title IX permits

recipients of federal funds to operate teams “for

members of each sex,” 34 C.F.R. §106.41(b), and

allows institutions to “maintain[] separate living

facilities for different sexes.” 20 U.S.C. §1686. Assume

New York passed a law requiring that all colleges, as

a condition of accreditation and state funding, permit

any male who desires to live in the female dormitory

to do so and permit any male to play on the women’s

teams. And, as in prior examples, New York imposes

significant penalties on the institution for failure to

do so. This scenario is currently on certiorari before

this Court. Little v. Hecox, No. 24-38 (cert granted

July 3, 2025); West Virginia v. B.P.J., No. 24-43 (cert

4

granted July 3, 2025). The Second Circuit’s decision

below would allow these colleges to follow state law

that is inconsistent with federal law. App.11a.

As the Eleventh Circuit noted in Campbell, “[t]hat

can’t be right,” 72 F.4th at 1257. The reason is simple:

federal law does not bow to contrary state laws, “it

works the other way around.” Barber ex rel. Barber v.

Colorado Dep’t of Revenue, 562 F.3d 1222, 1234 (10th

Cir. 2009) (Gorsuch, J., concurring). This Court

should grant the Petition.

II.

Hospital Respondents’ attempt to reframe

the Questions Presented obfuscates the

fact that the Second Circuit permitted

employers to violate Title VII on the basis

of conflicting state law in direct conflict

with this Court’s precedents.

A. Hospital Respondents categorically

denied all religious accommodation

requests on the basis of state law.

Hospital Respondents suggest that they were not

prohibited from granting any accommodation, only

that Petitioners’ requested exemption was not

permissible. This word game ignores the record and

their own written statements to Petitioners when

denying relief. They suggest that the State rule was

not a complete prohibition because individuals could

receive accommodations to engage in remote work.

Hospital Opposition 16. This is not true.

5

Hospital Respondents categorically prohibited any

and all religious accommodations. Petitioner John

Doe 2 is a Christian Scientist who had received

religious exemption and accommodation from

compulsory vaccination for 10 years prior to COVID19 and received an accommodation from the COVID19 vaccine prior to the State’s mandate. App.143a.

When John Doe 2 inquired of New York-Presbyterian

whether his decades-old religious accommodation

would continue, New York-Presbyterian told him:

“Religious exemptions are no longer accepted.”

App.143a-144a (emphasis added).

Petitioner Jane Doe 1 was told: “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. (emphasis added).

Petitioner Jane Doe 2 was told that her request for

an accommodation would not even be considered

because of state law. App.145a-146a (“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.).

Petitioner Jane Doe 3 submitted a religious

accommodation request and was initially approved

for such an accommodation, App.146a, but was later

informed “NYS DOH will not permit exemptions or

deferrals for sincerely held religious beliefs.”

App.146a.

6

B. Hospital Respondents ignore Title VII’s

express exemption and liability shield

by claiming that it would have been

undue

hardship

to

accommodate

Petitioners’ accommodation requests.

Hospital Respondents suggest that, contrary to

the decisions of this Court and the plain language of

Title VII, they were not required to even consider

religious accommodation requests because to do so

would have exposed them to liability for violation of

state law and thus been an undue hardship. Hospital

Opp. 2. The problem for Hospital Respondents and

the Second Circuit decision below is that Title VII

provides an express exemption for exactly this

concern. Title VII compels compliance with its

nondiscrimination provisions, and shields employers

who may be required to violate contrary state law to

meet their Title VII obligations. Indeed, “[a]

discriminatory state law is not a defense to liability

under federal law; it is a source of liability under

federal law.” Quionones v. City of Evanston, 58 F.3d

275, 277 (7th Cir. 1995).

For those employers who find themselves in a

purportedly precarious position at the hands of state

officials who ignore the demands of federal law,

Congress provided an explicit, textual exemption.

Nothing in this subchapter shall be deemed to

exempt or relieve any person of 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

7

that purports to require the doing of an act

which would be an unlawful employment

practice under this subchapter.

42 U.S.C. 2000e-7 (emphasis added). E.g., Williams v.

Gen. Foods Corp., 492 F.2d 399, 401 (7th Cir. 1974)

(“Title VII provides that employers are exempted

from liability under state laws which require the

doing of acts which constitute unlawful employment

practices.”). In other words, contrary to Hospital

Respondents’ contention, they never faced any threat

of liability for violation of contrary state law because

Title VII explicitly immunized them from any such

threat.

III. State

and

Hospital

Respondents’

suggestion that Petitioners’ erred by only

requesting an exemption ignores Title VII’s

accommodation requirement and the fact

that all accommodations are predicated on

an exemption to the objectionable

employment requirement.

Hospital Respondents suggest that it was only

because Petitioners sought an exemption rather than

some other accommodation that precluded their

consideration of the request. Hospital Opp. 16. In

addition to playing words games with Title VII’s

requirements, Hospital Respondents ignore that

every accommodation provided to an employee under

Title VII’s commands is necessarily predicated upon

an exemption from the employment requirement to

which the religious employee objects. Petitioners

informed their employers that they had a sincere

8

religious objection to an employment requirement

(the vaccine mandate), which is all that Title VII

requires. Once that objection was noted, Title VII

places the burden on Hospital Respondents to

consider and offer reasonable accommodations. See

EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S.

768, 773-74 (2015).

Petitioners were not required to use “magic words”

to request a religious accommodation, Broderick v.

Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006).

Indeed, “Title VII requires that an employer

reasonably accommodate an employee’s practice of

religion, not merely that it assess the reasonableness

of a particular possible accommodation or

accommodations.” Groff v. DeJoy, 600 U.S. 447, 473

(2023).

Groff was “an Evangelical Christian who believes

for religious reasons that Sunday should be devoted

to worship and rest, not secular labor and the

‘transportation’ of worldly goods.” Id. at 454. When he

was employed by the Postal Service, his original job

did not require that he work on Sundays. Id. That

changed after a few years, and Groff was told he

would be required to work on Sundays. Id. In order to

consider Groff’s accommodation request and whether

the Postal Service could grant it, Groff first had to be

exempted from Sunday work. If that exemption from

the Sunday work requirement was not granted, he

would have no need of any accommodation.

Or, take Abercrombie & Fitch, where Abercrombie

admitted that it “imposes a Look Policy that governs

9

its employees’ dress,” and that its Look Policy

prohibited any employee from wearing “headgear.”

575 U.S. at 770. The prospective employee was a

practicing Muslim who was required by her religious

convictions to wear a headscarf. Id. There were only

two available options (i.e., accommodations) in that

scenario: (a) permitting an employee to practice her

religion while being exempted from the “no headgear”

policy, a result mandated by Title VII; or (b) enforcing

a total prohibition on “headgear” and refusing to hire

a prospective employee because her religion requires

her to wear a headscarf. It was an “all or nothing”

scenario. This Court held that Title VII gives religious

practices “favored treatment, affirmatively obligating

employers not to . . . discharge any individual because

of such individual’s religious observance and

practice.” Id. at 775 (cleaned up).

This Court held that Abercrombie violated Title

VII by refusing to hire the prospective employee on

the basis of her Muslim faith. Id. The necessary

corollary of this Court’s discussion concerning the

accommodations for the “no headgear” policy is that

the prospective employee must have been first

exempted from the prohibition on wearing headgear

and then accommodated by being permitted to wear

her religious headgear during work hours. If the

prospective employee was not exempted from the

prohibition on wearing headgear during work hours,

then she would have no need for any accommodation.

The exemption and accommodation were inextricably

intertwined. Title VII does not permit categorical

denials of otherwise protected nondiscrimination

characteristics.

10

Other times, the accommodation is not an all or

nothing scenario, but rather requires an exemption to

precede the available accommodation. Take, for

example, the “no beard” policy at issue in the Fifth

Circuit’s decision in Hebrew v. Texas Dep’t of Crim.

Justice, 80 F.4th 717 (5th Cir. 2023). There, a member

of the Hebrew Nation religion was terminated from

his position for failure to shave his beard and cut his

hair. Id. at 719. To shave his beard would have been

a “violation of his religious vow.” Id. The employee

submitted a request for a religious accommodation,

but he was ultimately terminated because of his

refusal to comply with the “no-beard” policy. Id. The

employee requested a religious accommodation on the

basis of his religious vow to keep his hair and beard

long. Id. at 720. The Fifth Circuit held that a refusal

to extend an “exception for Hebrew” violated Title VII

because this Court’s “decision in Groff enables

Americans of all faiths to earn a living without

checking their religious beliefs and practices at the

door.” Id. at 725. Hebrew needed an exemption for the

no beard policy before any available accommodations

were even relevant. The Fifth Circuit noted that,

notwithstanding the requirement that Hebrew be

excepted from the policy, the employer must show

that it “considered” “possible accommodations” and

engaged in a thorough “examination of ‘any and all’

alternatives” to termination.” Id. at 723.

A proper consideration of Petitioners’ sincere

religious beliefs necessarily means that they be

exempted from the vaccination mandate, and once

exempted, Respondents were required to then

11

consider reasonable accommodation options. But

what Respondents cannot do is what they did here –

categorically deny all requests that were based on

religion. See, e.g., Horvath v. City of Leander, 946 F.3d

787, 790-792 (5th Cir. 2020) (noting that employee

was first granted an exemption to the flu vaccine

requirement and then the accommodation offered was

a transfer to a different position).

Hospital Respondents efforts to suggest a

dichotomy between exemptions and accommodations

is mere word play. All accommodations require the

employee be excused (i.e., exempted) from the

religiously objectionable work requirement, and then

possible accommodations be explored. Indeed, if

Petitioners were not first excused from the COVID-19

vaccination requirement, what need would they have

of any accommodation? If they complied with the

Mandate and accepted the vaccine (i.e., did not receive

some exemption first), they would have been in

compliance with the Mandate with no need of any

accommodation. They had to be excused first.

Respondents’ suggestion to the contrary belies

common sense and conflicts with this Court’s

precedents.

12

IV. State Respondents’ callously indifferent

suggestion that the Court should not

review claims arising from their blatantly

unconstitutional State laws because it was

repealed ignores Petitioners’ suffered

actual damages under Title VII.

State Respondents, while admitting Petitioners

seek review of only the Hospital Respondents’ Title

VII violations and not State Respondents, State Opp.

1, contend that this Court should not grant the

Petition because the Court “should not . . . wade into

stale issues about a bygone rule.” State Opp. 14. In

other words, State Respondents suggests this Court

should not review the Petition because “it’s too late.”

The State’s callous indifference to the life-altering

damage

inflicted

by

Hospital

Respondents’

discriminatory and unlawful denial of Petitioners’

religious accommodation request pours salt in the

wounds suffered by Petitioners here, and ignores the

fact that Petitioners have claims for damages that

merit careful consideration. App.117a (praying for

“damages for adverse employment action resulting in

lost wages and other compensatory damages”). Thus,

Petitioners’ questions before this Court and their

claims against Hospital Respondents remain alive

and well. Genesis Healthcare Corp. v. Symcyzk, 569

U.S. 66, 77 (2013) (“a claim for damages . . . remains

live until it is settled [or] judicially resolved”). As

such, the State’s contentions are irrelevant and

offensive to the health care workers who worked

tirelessly to protect the public.

13

Hospital Respondents wrongly contend that the

case is a “remarkably poor vehicle” to address

Petitioners’ life-altering injuries because Petitioners

purportedly did not exhaust their administrative

remedies. Hospital Opp. 17. First, Petitioners’ timely

filed charges of discrimination with the EEOC,

R.2161-2162, though the EEOC never acted upon

those requests. Because of the EEOC’s failure to

timely act, Petitioners’ claims ripened after 180 days

automatically. 42 U.S.C. §2000e-5(f)(1). See also

Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355,

361 (1977). Moreover, Petitioners were not required

to wait to file their claims in the first instance because

a Title VII plaintiff has the right to resort to an Article

III court’s incidental equity jurisdiction to preserve

the status quo while seeking to satisfy the exhaustion

requirement. See, e.g., Sheehan v. Purolator Courier

Corp., 676 F.2d 877, 844 (2d Cir. 1981). Petitioners

exhausted every remedy they could and sought

equitable relief prior to being fired. Though they did

not secure that injunctive relief, it did not preclude

adjudication of their claims.

This case presents an ideal vehicle to address the

Second Circuit’s decision allowing employers to

disregard binding federal law by relying on a contrary

state law. The implications are staggering. If

unchecked, this decision will allow states to pass laws

that force employers, educational institutions, and

businesses to violate applicable federal laws.

14

CONCLUSION

For the foregoing reasons, and for those outlined

in the Petition, the Court should grant the Petition.

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