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.