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

Supreme Court briefMay 18, 2026

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No. 24-1015

In the Supreme Court of the United States

JOHN DOE, ET AL., PETITIONERS

v.

KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

SARAH M. HARRIS

Deputy Solicitor General

LIBBY A. BAIRD

Assistant to the

Solicitor General

CHARLES W. SCARBOROUGH

LOWELL V. STURGILL , JR.

DOMENIC A. CANONICO

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a state law that allows for reasonable accommodations short of complete religious exemption is

consistent with Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e et seq., and therefore can form the basis

of an employer’s undue-hardship defense.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ........................................................ 1

Introduction ..................................................................................... 1

Statement:

A. Statutory background ....................................................... 3

B. The present controversy .................................................. 5

Discussion ...................................................................................... 10

A. The decision below is consistent with Title VII

principles .......................................................................... 11

B. The questions presented do not warrant review ........ 19

Conclusion ...................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986) ................................................................... 4

Arizona v. United States, 567 U.S. 387 (2012) .................... 17

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ................................................................. 23

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

Revenue, 562 F.3d 1222 (10th Cir. 2009) ................ 13, 14

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

(9th Cir. 1984) ........................................................... 21, 22

Braccia v. Northwell Health Sys., No. 24-2665,

2025 WL 2610704 (2d Cir. Sept. 10, 2025),

petition for cert. pending, No. 25-963

(filed Feb. 9, 2026) .......................................................... 18

Bradshaw v. School Bd. of Broward County,

486 F.3d 1205 (11th Cir. 2007) ............................................ 20

Bridgeport Guardians, Inc. v. Delmonte,

248 F.3d 66 (2d Cir.), cert. denied,

534 U.S. 950 (2001) ......................................................... 17

(III)

IV

Cases—Continued:

Page

California Fed. Sav. & Loan Ass’n v. Guerra:

758 F.2d 390 (9th Cir. 1985), cert. granted,

474 U.S. 1049 (1986), aff ’d, 479 U.S. 272 (1987) ...... 12

479 U.S. 272 (1987) .................................................. 5, 11, 13

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

72 F.4th 1245 (11th Cir. 2023) ............................................. 14

D’Cunha v. Northwell Health Sys., No. 23-476,

2023 WL 7986441 (2d Cir. Nov. 17, 2023) ............... 10, 18

Dr. A. v. Hochul:

No. 21-cv-1009, 2021 WL 4189533

(N.D.N.Y. Sept. 14, 2021) ............................................. 7

567 F. Supp. 3d 362 (N.D.N.Y. 2021) ................................ 8

142 S. Ct. 552 (2021) ............................................................ 8

142 S. Ct. 2569 (2022) .......................................................... 8

Groff v. DeJoy, 600 U.S. 447 (2023) ............................... 1, 4, 14

Guardians Ass’n of New York City Police Dep’t,

Inc. v. Civil Serv. Comm’n, 630 F.2d 79

(2d Cir. 1980), cert. denied, 452 U.S. 940 (1981) .......... 17

Lotes Co. v. Hon Hai Precision Indus. Co.,

753 F.3d 395 (2d Cir. 2014) ............................................ 18

Lowe v. Mills, 68 F.4th 706 (1st Cir.), cert. denied,

144 S. Ct. 345 (2023) ................................................. 20, 21

Mary Jo C. v. New York State & Local Retirement

Sys., 707 F.3d 144 (2d Cir.), cert. dismissed,

569 U.S. 1040 (2013) ....................................................... 18

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ..................... 11

Palmer v. General Mills Inc., 513 F.2d 1040

(6th Cir. 1975) ........................................................................ 20

Quinones v. City of Evanston, 58 F.3d 275

(7th Cir. 1995) ................................................................. 13

Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70 (1955) ................................................................. 23

V

Cases—Continued:

Page

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219

(9th Cir. 1971) ........................................................................ 20

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ........... 5

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ................................................................... 4

United States v. Board of Educ., 911 F.2d 882

(3d Cir. 1990) ................................................................... 21

We The Patriots USA, Inc. v. Hochul:

17 F.4th 266 (2d Cir. 2021), opinion clarified,

17 F.4th 368 (2d Cir. 2021), cert. denied,

142 S. Ct. 2569 (2022) ........................ 2, 8-10, 15, 16, 22

17 F.4th 368 (2d Cir. 2021) ............................................... 16

Williams v. General Foods Corp.,

492 F.2d 399 (7th Cir. 1974) ..................................... 13, 20

Wisniewski v. United States, 353 U.S. 901 (1957) ......... 19

Wright v. The Brooklyn Hosp. Ctr., No. 24-2632,

2026 WL 1141057 (2d Cir. Apr. 27, 2026) .......................... 19

Constitution, statutes, and regulations:

U.S. Const. Art. VI, Cl. 2 (Supremacy Clause) ............... 1, 11

Age Discrimination in Employment Act of 1967,

Pub. L. No. 90-202, 81 Stat. 602

(29 U.S.C. 621 et seq.) ..................................................... 13

Americans with Disabilities Act of 1990,

Pub. L. No. 101-336, 104 Stat. 327

(42 U.S.C. 12101 et seq.) ....................................................... 14

Civil Rights Act of 1964, Pub. L. No. 88-352,

78 Stat. 241 (42 U.S.C. 2000a et seq.):

Tit. VII, 42 U.S.C. 2000e et seq. ................ 1-5, 7-17, 19-22

§ 701, 42 U.S.C. 2000e( j) .............................................. 4

§ 703, 42 U.S.C. 2000e-2(a)(1) ...................................... 4

§ 708, 42 U.S.C. 2000e-7 ............................. 5, 11-14, 17

VI

Statutes and regulations—Continued:

Page

Tit. XI, 42 U.S.C. 2000h et seq. .............................. 5, 11, 12

§ 1104, 42 U.S.C. 2000h-4 ................................. 5, 11, 12

Rehabilitation Act of 1973, Pub. L. No. 93-112,

87 Stat. 355 (29 U.S.C. 701 et seq.) ..................................... 14

42 U.S.C. 1985 ............................................................................ 7

29 C.F.R. 1604.2(b)(1) ............................................................. 13

N.Y. Comp. Codes R. & Regs., tit. 10 (Supp. 2021):

§ 2.61 .......................................... 2, 3, 6-10, 14-17, 19, 22, 23

§ 2.61(a)(2) ............................................................................ 6

Miscellaneous:

EEOC Dec. No. 85-13, 1985 WL 32782

(Aug. 23, 1985) ................................................................... 5, 13

In the Supreme Court of the United States

No. 24-1015

JOHN DOE, ET AL., PETITIONERS

v.

KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be denied.

INTRODUCTION

Under the Supremacy Clause, U.S. Const. Art. VI,

Cl. 2, state law must yield to federal law when the two

conflict. Here, the relevant federal law is Title VII of

the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.,

which prohibits discrimination based on religion and requires employers to reasonably accommodate religious

practice unless the employers show that the accommodation imposes an undue hardship on their business operations. See Groff v. DeJoy, 600 U.S. 447, 453-454, 468

(2023). State law that conflicts with Title VII is

preempted and has no effect. Employers thus cannot

(1)

2

point to compliance with preempted state laws as a basis for claiming that a reasonable accommodation would

impose undue hardship under Title VII.

However, those black-letter preemption and Title

VII principles are not implicated here. Rather, the

principal dispute in this case involves state law, making

this case an unsuitable vehicle for this Court’s review.

Petitioners are former healthcare workers who contend

that New York’s now-repealed COVID-19 vaccine mandate for healthcare workers—known as Section 2.61—

conflicted with Title VII because it foreclosed employers from granting any reasonable accommodations for

religious practice. Petitioners are correct that, if New

York law foreclosed any consideration of religious accommodations, it would be preempted by Title VII,

which requires consideration of such accommodations.

Petitioners are also correct that an employer could not

rely on such a state law to skirt compliance with federal

antidiscrimination requirements.

But New York law, as interpreted by the Second Circuit in a published decision, leaves room for religious

accommodations short of complete exemptions. See We

The Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2021)

(per curiam), opinion clarified, 17 F.4th 368 (2021), cert.

denied, 142 S. Ct. 2569 (2022). The Second Circuit also

suggested that New York law would conflict with Title

VII if New York law, in practice, did not actually allow

any religious accommodations. See id. at 292-293. And

that court has held in a line of published decisions that

an employer’s attempt to rely on state laws that conflict

with federal law cannot excuse compliance with federal

antidiscrimination requirements. Consistent with that

circuit precedent, the unpublished decision below held

only that granting the “sole” accommodation that

3

petitioners sought—a complete “religious exemption”

from Section 2.61 while continuing to work in their

roles—would have imposed an undue hardship on petitioners’ employers in the form of penalties resulting

from their noncompliance with Section 2.61. Pet. App.

11a. It did not hold that Section 2.61 “trump[ed] Title

VII’s requirements to provide a religious accommodation” of all types. Pet. 17.

The petition also does not present a conflict among

the courts of appeals that warrants this Court’s review.

Nor is there any conflict regarding broader Title VII

principles. Like the Second Circuit below, the courts of

appeals have generally held that employers cannot rely

on state laws that conflict with Title VII to excuse the

need to comply with Title VII. At most, petitioners

point to potential tension between the decision below

and prior Second Circuit precedent, but that intra-circuit conflict does not warrant further review. Any lack

of clarity regarding how New York’s now-repealed law

operated would make this case an even poorer vehicle.

Petitioners did not allege that they sought and were denied other accommodations aside from a complete exemption; it is thus an open question whether petitioners

could have shown that, in practice, Section 2.61 did not

allow any religious accommodations. Further, New

York’s repeal of Section 2.61 diminishes the prospective

importance of this case and would require this Court to

interpret a state regulation without the benefit of input

from New York courts.

The petition should be denied.

STATEMENT

A. Statutory Background

Title VII makes it an “unlawful employment practice

for an employer” “to fail or refuse to hire or to discharge

4

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)(1). The

statute defines “ ‘religion’ ” to “include[ ] 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).

Title VII thus “requires employers to accommodate

the religious practice of their employees unless doing so

would impose an ‘undue hardship on the conduct of the

employer’s business.’ ” Groff v. DeJoy, 600 U.S. 447,

453-454 (2023) (citation omitted); see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977). But employees are not automatically entitled to the accommodation of their choice. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986). Rather, an employer may

“meet its accommodation obligation” through “any reasonable accommodation” of the employee’s religious

practices, even if it is not the accommodation the employee prefers. Ibid. That accommodation must actually “eliminate[ ] the conflict between employment requirements and religious practices,” id. at 70, unless the

employer “show[s] that the burden of granting an accommodation would result in substantial increased

costs in relation to the conduct of its particular business,” Groff, 600 U.S. at 470.

Congress expressly addressed the relationship between employers’ obligations under Title VII and state

laws. “Nothing” in Title VII “relieve[s] any person from

any liability, duty, penalty, or punishment provided by”

5

state law “other than any such law which purports to

require or permit the doing of any act which would be

an unlawful employment practice under” Title VII.

42 U.S.C. 2000e-7. That section “expressly preserves

nonconflicting state laws.” Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 101 (1983). But under that section,

Title VII “supersede[s]” conflicting state laws, including laws that would “require[ ] the employer to act in a

manner that constitutes an unlawful employment practice under Title VII.” EEOC Dec. No. 85-13, 1985 WL

32782, at *2 (Aug. 23, 1985).

Separately, a provision in Title XI applicable to all

titles of the Civil Rights Act provides that “[n]othing”

in that Act “shall be construed as indicating an intent

on the part of Congress to occupy the field in which any

such title operates to the exclusion of State laws on the

same subject matter,” and that no provision “shall * * *

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. Together, 42 U.S.C. 2000e-7 and 2000h-4 indicate that “state laws will be pre-empted only if they actually conflict with federal law.” California Fed. Sav. &

Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987); see id.

at 295 (Scalia, J., concurring in the judgment) (referring

to those sections as “antipre-emption provisions”).

B. The Present Controversy

1. On August 18, 2021, the Commissioner of the New

York State Department of Health issued a short-term,

emergency order obligating certain healthcare entities

to require specified employees to be vaccinated against

COVID-19. Pet. App. 18a; see D. Ct. Doc. 1-8 (Sept. 10,

2021). That order permitted medical and religious exemptions. Pet. App. 19a.

6

Eight days later, New York’s Public Health and

Health Planning Council superseded that order by issuing a regulation known as Section 2.61. Pet. App. 21a;

see N.Y. Comp. Codes R. & Regs., tit. 10, § 2.61 (Supp.

2021) (§ 2.61). Like the short-term order, Section 2.61

required covered healthcare entities to mandate

COVID-19 vaccination for covered “[p]ersonnel” who

“engage[d] in activities such that if they were infected

with COVID-19, they could potentially expose other

covered personnel, patients or residents to the disease.”

§ 2.61(a)(2); see Pet. App. 22a-23a. Unlike the shortterm order, Section 2.61 permitted only a medical exemption and did not include a religious exemption. See

Pet. App. 23a. Section 2.61 was silent, however, as to

whether employers could grant religious accommodations, short of complete exemptions, to remove employees from Section 2.61’s definition of covered personnel.

See D. Ct. Doc. 82, at 20 (Feb. 17, 2022).

Effective October 2023, New York repealed Section

2.61, “correspond[ing] with the changed conditions surrounding the COVID-19 pandemic.” Pet. App. 6a-7a.

2. Petitioners are four healthcare workers who asserted religious objections to receiving the COVID-19

vaccine. Pet. App. 3a-4a; see Pet. 5-7. Three petitioners

initially obtained religious exemptions from their employers under New York’s short-term order. Pet. App.

19a. But after Section 2.61 was promulgated, the employers “amended their vaccination policies to comply

with state requirements” and revoked the religious exemptions. Id. at 23a-25a. One petitioner sought a religious exemption for the first time after Section 2.61 was

promulgated; that request was denied. Id. at 19a n.12,

24a-25a.

7

On September 10, 2021, petitioners sued their employers—New York Presbyterian Healthcare System,

Inc., Trinity Health, Inc., and Westchester Medical

Center Advanced Physician Services, P.C. (employer

respondents)—as well as New York’s Governor and

State Department of Health Commissioner (state respondents) in the United States District Court for the

Eastern District of New York. Pet. App. 25a, 63a. Petitioners alleged that they were willing to comply with

“[m]asking and testing protocols” while continuing in

their roles as “a reasonable alternative to vaccination”

and “an accommodation of sincerely held religious beliefs,” id. at 89a, but that employer respondents denied

those requests based on Section 2.61, see id. at 89a-94a.

As relevant here, petitioners asserted that employer respondents’ failure to accommodate their religious beliefs violated Title VII, id. at 107a-110a, and that Title

VII preempted Section 2.61 because Title VII requires

religious accommodations that Section 2.61 disallows,

see id. at 102a-104a; see also id. at 57a-58a.1

3. Shortly after petitioners filed their complaint, two

other federal district courts in New York issued orders

in similar lawsuits. One district court denied a request

for preliminary relief similar to petitioners’. See Pet.

App. 27a; We The Patriots USA, Inc. v. Hochul, No. 21cv-4954 (E.D.N.Y. Sept. 12, 2021). Another district

court granted preliminary relief to a group of

healthcare workers and enjoined enforcement of Section 2.61. See Pet. App. 27a-28a; Dr. A. v. Hochul, No.

Petitioners also brought free-exercise and equal-protection

claims against the state respondents, as well as a claim that all respondents engaged in an unlawful conspiracy under 42 U.S.C. 1985.

See Pet. App. 25a, 99a-102a, 104a-107a, 110a-113a. Those claims are

not at issue in the petition. See Pet. i-ii.

1

8

21-cv-1009, 2021 WL 4189533 (N.D.N.Y. Sept. 14, 2021)

(temporary restraining order); Dr. A. v. Hochul, 567 F.

Supp. 3d 362 (N.D.N.Y. 2021) (preliminary injunction).

The Second Circuit affirmed the denial of relief in We

The Patriots and vacated the preliminary injunction in

Dr. A. See We The Patriots USA, Inc. v. Hochul, 17

F.4th 266 (2021) (per curiam), opinion clarified, 17 F.4th

368 (2021). The court of appeals held, inter alia, that

Title VII did not preempt Section 2.61. Id. at 290-293.

The court reasoned that “Section 2.61, on its face, does

not bar an employer from providing an employee with a

reasonable accommodation that removes the individual

from the scope of the Rule.” Id. at 292. The court further explained that “Section 2.61 does not require employers to violate Title VII because, although it bars an

employer from granting a religious exemption from the

vaccination requirement, it does not prevent employees

from seeking a religious accommodation allowing them

to continue working consistent with the Rule, while

avoiding the vaccination requirement.” Ibid. This

Court denied further review. See Dr. A. v. Hochul, 142

S. Ct. 552 (2021) (denying application for injunctive relief ); Dr. A. v. Hochul, 142 S. Ct. 2569 (2022) (denying

certiorari).

4. The district court subsequently granted respondents’ motions to dismiss. Pet. App. 13a-62a.

The district court reasoned that “[t]he sole ‘accommodation’ ” that petitioners sought was “a religious exemption from the vaccine requirement.” Pet. App. 55a.

The court found that granting that exemption would impose an undue hardship on employer respondents because it “would require them to violate” Section 2.61,

and it “would expose vulnerable patients and nursing

9

home residents, as well as other healthcare workers, to

the COVID-19 virus.” Id. at 55a-56a.

The district court further rejected petitioners’ argument that Title VII preempted Section 2.61 based on

the Second Circuit’s decision in We The Patriots. Pet.

App. 56a-60a. While recognizing that Title VII “requires an employer to offer a reasonable accommodation” absent proof of undue hardship, the court explained that it does not require an employer “to ‘offer

the accommodation the employee prefers.’ ” Id. at 59a60a (quoting We The Patriots, 17 F.4th at 292). Although Section 2.61 prohibited petitioners’ preferred exemption, the district court concluded that, “[a]s the Second Circuit” had construed Section 2.61, that provision

did not “ ‘foreclose all opportunity’ ” for petitioners to

secure a different accommodation. Id. at 60a (quoting

We The Patriots, 17 F.4th at 292).

5. The court of appeals affirmed in part and vacated

in part in an unpublished summary order. Pet. App. 1a12a.

With respect to petitioners’ Title VII claims against

employer respondents, the court of appeals affirmed.

Pet. App. 9a-11a. The court reasoned that “[e]ven if [petitioners] plausibly alleged a prima facie case of Title

VII religious discrimination,” id. at 10a, employer respondents had demonstrated an undue hardship, id. at

10a-11a. Specifically, because petitioners were “covered personnel under Section 2.61,” “granting their sole

request for a religious exemption would have required

the [employer respondents] to violate” Section 2.61.

Ibid. That, “in turn,” would have subjected employer

respondents “to financial penalties or a suspension or

revocation of their operating licenses,” which the court

found sufficed to satisfy “the heightened standard for

10

undue hardship recently set forth in Groff.” Id. at 11a.

For support, the court cited another case involving Section 2.61, in which the Second Circuit reiterated that

Section 2.61 did not conflict with federal law because

“Title VII does not require covered entities to provide

the accommodation that [employees] prefer—in this

case, a blanket religious exemption allowing them to

continue working at their current positions unvaccinated.” D’Cunha v. Northwell Health Sys., No. 23476, 2023 WL 7986441, at *3 (2d Cir. Nov. 17, 2023)

(quoting We The Patriots, 17 F.4th at 292); see Pet.

App. 11a.2

Petitioners did not seek panel or en banc rehearing.

DISCUSSION

This petition reduces to a dispute over how to interpret a now-repealed state law. Petitioners portray the

Second Circuit’s unpublished summary order below as

erroneously allowing employers to claim an undue hardship—and to sidestep their Title VII nondiscrimination

obligations—by relying on a New York law, Section

2.61, that purportedly conflicted with Title VII. But petitioners’ view of New York law is at odds with how the

Second Circuit previously construed Section 2.61. A

prior, published Second Circuit decision interpreted

that provision to leave room for reasonable accommodations for religious practice and thus to not conflict with

Title VII. The unpublished decision below—though difficult to parse—did not clearly depart from published

Second Circuit precedent and could not have

The court of appeals separately held that petitioners’ free-exercise and equal-protection claims against the state respondents were

moot because the State repealed Section 2.61. Pet. App. 5a-9a. Petitioners do not challenge that holding at this stage. See Pet. iii n.1.

2

11

overturned that precedent in all events. The petition

also does not present a circuit conflict that would warrant this Court’s review and suffers from other vehicle

problems. The petition should be denied.

A. The Decision Below Is Consistent With Title VII Principles

The petition purports to raise questions about

whether a state law that conflicts with Title VII—in

particular, a state law that prohibits employers from

considering religious-accommodation requests—can

provide a basis for an employer’s undue-hardship defense, or whether such a state law is instead preempted

by Title VII. Pet. i-ii. The answer is straightforward:

Title VII preempts state laws that are incompatible

with it, and such laws therefore cannot support an undue-hardship defense. Thus, Title VII would preempt

state laws that prohibit consideration of religiousaccommodation requests. The decision below, however,

does not contravene that basic principle and does not

implicate the questions presented.

1. As no party appears to dispute, state laws that

conflict with Title VII are preempted by Title VII and

therefore cannot serve as the basis for an unduehardship defense. See, e.g., Employer Br. in Opp. 1011; State Br. in Opp. 15-17. Under the Supremacy

Clause, “[w]here state and federal law ‘directly conflict,’

state law must give way.” PLIVA, Inc. v. Mensing, 564

U.S. 604, 617 (2011) (citation omitted); see U.S. Const.

Art. VI, Cl. 2. In the Title VII context, Section 708 of

Title VII and Section 1104 of Title XI expressly address

the interaction between federal and state law. See California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272,

281 (1987). Section 708 of Title VII provides:

12

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.

42 U.S.C. 2000e-7. Section 1104 of Title XI, which applies to Title VII, provides:

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 any 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.

Through those sections, Congress permitted state

legislatures to provide broader protection than federal

law. See California Fed. Sav. & Loan Ass’n v. Guerra,

758 F.2d 390, 394 (9th Cir. 1985), cert. granted, 474 U.S.

1049 (1986), aff ’d, 479 U.S. 272 (1987). At the same time,

Congress recognized that federal law preempts state

laws (1) that require or permit an unlawful employment

practice under Title VII, 42 U.S.C. 2000e-7, or (2) that

conflict with any provision of the Civil Rights Act or the

Act’s purposes, 42 U.S.C. 2000h-4.

When a state law conflicts with, and is thus

preempted by, Title VII, it follows a fortiori that an employer cannot rely on the need to comply with that state

law to excuse noncompliance with Title VII. Because

13

Title VII “exempt[s] or relieve[s]” an employer “from

any liability, duty, penalty, or punishment provided” by

a conflicting state law, 42 U.S.C. 2000e-7, any penalties

flowing from noncompliance with that state law could

not form the basis of an undue-hardship defense. Cf.

Williams v. General Foods Corp., 492 F.2d 399, 404 (7th

Cir. 1974). As far as Title VII is concerned, the state

law is without effect. See Barber ex rel. Barber v. Colorado Dep’t of Revenue, 562 F.3d 1222, 1234 (10th Cir.

2009) (Gorsuch, J., concurring in the judgment) (“[A]

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

at all.”). Complying with “[a] discriminatory state law”

is thus “not a defense to liability under federal law; it is

a source of liability under federal law.” Quinones v.

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

Discrimination in Employment Act (ADEA)).

Under those principles, Title VII would preempt a

state law that precludes an employer from attempting

to reasonably accommodate an employee’s religious

practice. The state law would prohibit what Title VII

requires. See Guerra, 479 U.S. at 281. Thus, an employer could not rely on that conflicting state law to excuse compliance with Title VII’s religious-accommodation obligation—as the Equal Employment Opportunity

Commission (EEOC) has long maintained.3 Conversely,

Title VII would relieve employers of penalties flowing

See EEOC Dec. No. 85-13, 1985 WL 32782, at *2-*3 (Aug. 23,

1985) (state law that “requires the employer to” violate Title VII

cannot “relieve [the employer] of its Title VII duty to reasonably

accommodate [the employee’s] religious beliefs”); cf., e.g., 29 C.F.R.

1604.2(b)(1) (similar, addressing “sex-oriented State employment

legislation”); EEOC Amicus Br., Rosenfeld v. South Pacific Co.,

Nos. 23,983 and 23,984 (9th Cir. Sep. 29, 1969) (Title VII sex discrimination); EEOC Amicus Br., Quinones v. City of Evanston, No.

94-3060 (7th Cir. Dec. 21, 1994) (ADEA).

3

14

from noncompliance with that preempted state law. See

42 U.S.C. 2000e-7; cf. Campbell v. Universal City Dev.

Partners, Ltd., 72 F.4th 1245, 1258 (11th Cir. 2023)

(Americans with Disabilities Act (ADA)).

By contrast, so long as a state law does not conflict

with Title VII, if providing an accommodation would require the employer to violate state law, the penalties

flowing from noncompliance with that state law could

support an undue-hardship defense. While “[r]eliance

on state statutes to excuse non-compliance with federal

laws is simply unacceptable under the Supremacy

Clause,” that issue is not implicated when “there [i]s no

conflict.” Barber, 562 F.3d at 1232-1233 (Rehabilitation

Act). Any costs of noncompliance could be considered

just as any other costs of providing an accommodation

(e.g., hiring other employees to cover missed shifts)

could be. The question would be whether the employer

has shown that “a burden is substantial in the overall

context of [its] business.” Groff v. DeJoy, 600 U.S. 447,

468 (2023).

2. Though the decision below is no model of clarity,

the better reading is that it does not contravene those

basic principles.

a. The petition’s central premise is that Section 2.61

required healthcare entities, including employer respondents, to deny without consideration all religiousaccommodation requests. See, e.g., Pet. 4, 38. The petition’s second question presented expressly incorporates that assertion by asking “[w]hether a state law

that requires employers to deny without consideration

all requests by employees for a religious accommodation * * * is preempted.” Pet ii. The first question

presented is also framed in terms of whether “compliance with state laws directly contrary to Title VII’s

15

requirement to provide a reasonable accommodation for

religious beliefs may serve as an undue hardship.” Pet.

i. Petitioners thus argue that the Second Circuit erroneously allowed a state law that violates Title VII to excuse compliance with Title VII.

Petitioners repeatedly point to one passage of the

decision below to support their reading. See Pet. 7, 1718, 28, 33. The court of appeals explained that, because

petitioners were “covered personnel” under Section

2.61, “granting [petitioners’] sole request for a religious

exemption would have required [employer respondents]

to violate the state regulation” and the resulting “financial penalties or a suspension or revocation of their operating licenses” sufficed to prove undue hardship. Pet.

App. 10a-11a. In petitioner’s view, that supports reading the decision below as holding that state law could

“trump Title VII’s requirements to provide a religious

accommodation,” Pet. 17, and as “flipp[ing]” the required preemption analysis, Pet. 28.

If the court of appeals had so held, that would be

plainly incorrect for the reasons explained: a state law

that forecloses any consideration of religious accommodations would conflict with Title VII and therefore be

preempted. See pp. 11-14, supra.

b. However, the best reading of the decision below—

especially against the backdrop of earlier circuit precedent—is contrary to petitioners’ reading.

The Second Circuit interpreted Section 2.61 in a previous, published opinion addressing a Title VII challenge similar to petitioners’. In We The Patriots USA,

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

the court of appeals observed that Section 2.61 was “silent” on “the employment-related actions that employers may take in response to employees who refuse to be

16

vaccinated for religious reasons.” Id. at 292. The court

accepted the State’s argument that Section 2.61 thus

did not “bar an employer from providing an employee

with a reasonable accommodation that removes the individual from the scope of the Rule,” e.g., by “giving

them . . . assignments—such as telemedicine—where

they would not pose a risk of infection to other personnel, patients, or residents.” Ibid. (quoting Br. for Appellants 62, Dr. A. v. Hochul, No. 21-2566 (2d Cir. Oct.

18, 2021)); accord We The Patriots USA, Inc. v. Hochul,

17 F.4th 368, 370 (2d Cir. 2021) (per curiam) (clarified

opinion reaffirming that proposition). Under the Second Circuit’s interpretation, “Section 2.61’s text does

not foreclose all opportunity for [employees] to secure

a reasonable accommodation under Title VII,” and thus

“does not conflict with federal law.” We The Patriots,

17 F.4th at 292. The decision left open the possibility

that “the opportunities for a reasonable accommodation

under Title VII for religious objectors * * * are so few

as to be illusory,” but found the record on that question

lacking. Ibid.; see id. at 292-293.

The unpublished summary order below—while

murky—thus appears to build upon the court of appeals’

previous understanding in We The Patriots that Section

2.61 allows for employer consideration of religious accommodations, consistent with Title VII. The court addressed only the possibility of a religious exemption because that was petitioners’ “sole request.” Pet. App.

11a. While petitioners claim that employer respondents

“categorically prohibited any and all religious accommodations,” Cert. Reply Br. 5, petitioners do not allege

that they sought (or that employer respondents denied)

accommodations that would have removed them from

Section 2.61’s scope. As the district court explained,

17

petitioners alleged that they sought only “a complete

exemption—which they characterize as an accommodation—while continuing to work directly with patients,

elderly people and co-workers.” Pet App. 59a.

Given We The Patriots, and without “a definitive interpretation from the state courts,” it would be “inappropriate to assume” that Section 2.61 would have been

“construed in a way that creates a conflict with federal

law.” Arizona v. United States, 567 U.S. 387, 415

(2012); see State Br. in Opp. 14.

c. Petitioners’ reading of the decision below would

also make it inconsistent with other published Second

Circuit precedent. As petitioners acknowledge, see,

e.g., Pet. 21-22, 28-29, those earlier precedents correctly

hold that state laws that conflict with federal law cannot

provide a defense to an otherwise actionable federal

claim.

Guardians Association of New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d

79 (2d Cir. 1980), cert. denied, 452 U.S. 940 (1981), for

instance, held that an employer could not rely on state

law to justify rank-ordering applicants because that

practice produced a disparate racial impact in violation

of Title VII. See id. at 104-105. The Second Circuit reasoned that “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);

cf. Bridgeport Guardians, Inc. v. Delmonte, 248 F.3d

66, 74 (2d Cir.) (“We have consistently recognized that,

in some circumstances, state law requirements may be

displaced in order to effectuate Title VII remedies.”),

cert. denied, 534 U.S. 950 (2001).

18

Similarly, Mary Jo C. v. New York State & Local Retirement System, 707 F.3d 144 (2d Cir.), cert. dismissed,

569 U.S. 1040 (2013), held that the ADA’s reasonablemodification requirement “contemplates modification

to state laws, thereby permitting preemption of inconsistent state laws, when necessary to effectuate [ADA]

Title II’s reasonable modification provision.” Id. at 163.

The Second Circuit reasoned that “[i]f 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 objectives of Congress’ in enacting Title II.” Ibid. (citation omitted;

brackets in original).

Petitioners’ interpretation of the decision below cannot be squared with We The Patriots, Guardians, or

Mary Jo C. The unpublished decision below could not

overrule those decisions, see, e.g., Lotes Co. v. Hon Hai

Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014),

and did not address them.

Petitioners cite (Pet. 19) the Second Circuit’s unpublished decision in D’Cunha v. Northwell Health Systems, No. 23-476, 2023 WL 7986441 (Nov. 17, 2023), but

it is distinguishable for the same reasons as the decision

below. The plaintiff there sought only “an exemption

from the COVID-19 vaccination requirement while continuing to provide direct patient care as a resident,”

which the court determined would have been an undue

hardship on the employer. Id. at *2; see id. at *2-*3.

Other unpublished Second Circuit decisions are to the

same effect. See Braccia v. Northwell Health Systems,

No. 24-2665, 2025 WL 2610704, at *2 (Sept. 10, 2025)

(“The amended complaint does not allege that any

plaintiff sought accommodation in the form of a

19

reassignment that would remove her from Section

2.61’s definition of ‘personnel’ so that Section 2.61 would

not apply.”), petition for cert. pending, No. 25-963 (filed

Feb. 9, 2026); Wright v. The Brooklyn Hosp. Ctr., No.

24-2632, 2026 WL 1141057, at *2 (Apr. 27, 2026) (plaintiff “did not allege that he ever requested” certain accommodations).

At bottom, petitioners ultimately assert that the decision below conflicts with prior Second Circuit precedent and press intra-circuit conflicts. See Pet. 21-22,

28-29, 40-41. But, even if such inconsistency existed,

this Court does not ordinarily review such intra-circuit

conflicts. See Wisniewski v. United States, 353 U.S.

901, 902 (1957) (per curiam). Further, to the extent confusion exists within the Second Circuit about what the

now-repealed Section 2.61 meant, the preferable course

would have been for petitioners to seek panel or en banc

rehearing. Without further clarification, the better

reading of circuit precedent is that the court, in published opinions, has recognized that Title VII and other

federal nondiscrimination laws displace conflicting

state laws. That sound principle would obviate any need

to review either question presented, which assume that

Section 2.61 was “directly contrary to Title VII’s” reasonable-accommodation requirement, Pet. i, and “require[d] employers to deny without any consideration”

religious-accommodation requests, Pet. ii.

B. The Questions Presented Do Not Warrant Review

1. Further undercutting the case for review, the petition does not present a conflict among the courts of

appeals.

Petitioners contend the decision below conflicts with

decisions from other circuits reasoning that state laws

incompatible with Title VII must yield to Title VII’s

20

antidiscrimination requirements, see Pet. 22-25 (citing,

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

Cir. 1975), Williams, 492 F.2d 399, and Rosenfeld v.

Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971));

that state laws incompatible with other federal laws do

not excuse liability for violating those federal laws, see

Pet. 25-31 (discussing cases); and that Title VII

preempts contrary state laws, see Pet. 40-41 (citing

Bradshaw v. School Bd. of Broward County, 486 F.3d

1205 (11th Cir. 2007)). But as explained, the court of

appeals’ decision does not contravene those principles.

See pp. 14-19, supra.

To the extent that petitioners identify other circuits

as supposedly endorsing the view that compliance with

state laws that conflict with federal laws can still constitute an undue hardship for employers, see Pet. 18-20,

34-36, this Court should await cases from those circuits

because the decision below is a poor vehicle. Regardless, petitioners are incorrect that a clear split exists.

Petitioners contend that the First Circuit’s decision

in Lowe v. Mills, 68 F.4th 706, cert. denied, 144 S. Ct.

345 (2023), held that a “state law was not preempted”

even though “simultaneous compliance” with that law

and Title VII was “not possible.” Pet. 35. Some language in Lowe could be read to endorse that principle;

for example, the First Circuit reasoned that “the undue

hardship analysis precedes any conclusion about

preemption of state law,” 68 F.4th at 724, suggesting

that even a law that precluded consideration of any religious accommodation could support an unduehardship defense. Such a broad holding would be incorrect. See pp. 11-14, supra.

But Lowe mainly rested on the narrower propositions that Title VII does not require that an employer

21

grant an employee’s “preferred accommodation” (a

blanket religious exemption) and that a state law that

forbids only that particular exemption does not necessarily conflict with Title VII. 68 F.4th at 724; see id. at

723 (“The plaintiffs have never alleged or argued that

they would have accepted any accommodations that

would have placed them outside the [state law’s]

scope.”). Moreover, the First Circuit expressly declined to “decide whether every accommodation that

would require an employer to violate state or federal

law would necessarily constitute an undue hardship under Title VII.” Id. at 722.

Petitioners’ reliance on United States v. Board of

Education, 911 F.2d 882 (3d Cir. 1990), is similarly

flawed. That case concerned a Pennsylvania statute

that prohibited teachers from wearing religious attire

in public schools. See id. at 884-885. The court of appeals explained “that it would be an undue hardship to

require a school board to violate an apparently valid

criminal statute.” Id. at 891. But that statement cannot

be read as endorsing the broad proposition that a state

law that conflicts with Title VII (or any other federal

law) can provide a basis for an undue-hardship defense

because the court assumed that the criminal statute was

facially valid. Indeed, the court separately explained

that Pennsylvania’s law “pass[ed] Title VII muster.”

Id. at 893.

Nor does Bhatia v. Chevron U.S.A., Inc., 734 F.2d

1382 (9th Cir. 1984) (per curiam), implicate a circuit conflict. That case involved an employer’s requirement

(designed to comply with state law) that employees

whose duties included potential exposure to toxic gases

shave facial hair in order to wear a respirator. Id. at

1383. An employee objected to the requirement on

22

religious grounds and sued the employer under Title

VII. Id. at 1382-1383. The Ninth Circuit held that the

employer successfully established undue hardship, in

part because if the employer “were to retain [the employee] as a machinist and assign him to duties involving exposure to toxic gas, it would risk liability for violating California Occupational Safety and Health Administration standards.” Id. at 1384. But the court of

appeals also explained that if the employer had “retained [the employee] as a machinist” and assigned him

only duties that did not involve exposure to toxic gas,

that too would have imposed undue hardships on the

employer, including requiring the employee’s coworkers to “assume his share of potentially hazardous work.”

Ibid.

2. This case is also a poor vehicle for other reasons.

First, there is an open question whether petitioners

could have shown that “the opportunities for a reasonable accommodation under Title VII for religious objectors” are “so few as to be illusory.” We The Patriots,

17 F.4th at 292. Petitioners’ complaint does not reflect

whether they sought, or whether employer respondents

refused to consider, any other accommodations besides

a complete exemption from Section 2.61. See pp. 16-17,

supra. Nor did petitioners seek to amend their complaint after We The Patriots held that Section 2.61 allowed for reasonable accommodations besides complete

exemption. Had petitioners alleged that they sought

reasonable accommodations that would have removed

them from Section 2.61’s scope and that those accommodations were illusory, the outcome might well have

been different under Second Circuit precedent.

Second, Section 2.61 was repealed. While petitioners’ claims for damages against employer respondents

23

present a live controversy, that repeal renders the dispute in this case of more “isolated significance.” Rice v.

Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70,

76-77 (1955). Section 2.61’s repeal also means that this

Court would have to interpret the scope of a New York

regulation without the benefit of consideration by New

York’s “highest court,” which could “risk[ ] frictiongenerating error.” Arizonans for Official English v.

Arizona, 520 U.S. 43, 79 (1997).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

SARAH M. HARRIS

Deputy Solicitor General

LIBBY A. BAIRD

Assistant to the

Solicitor General

CHARLES W. SCARBOROUGH

LOWELL V. STURGILL , JR.

DOMENIC A. CANONICO

Attorneys

MAY 2026

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.

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