Amicus Curiae Brief — Joseph Miller, et al., Petitioners v. James V. McDonald, Commissioner, New York State Department of Health, et al.

No. 25-133

In the

Supreme Court of the United States

JOSEPH MILLER, et al.,

Petitioners,

v.

JAMES V. MCDONALD, COMMISSIONER, NEW YORK

STATE DEPARTMENT OF HEALTH, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

BRIEF OF AMICUS CURIAE THOMAS MORE

SOCIETY IN SUPPORT OF PETITIONERS

Thomas L. Brejcha

Counsel of Record

Michael G. McHale

Nathan Loyd

Thomas More Society

309 West Washington Street,

Suite 1250

Chicago, IL 60606

(312) 782-1680

tbrejcha@thomasmoresociety.org

Counsel for Amicus Curiae

384976

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICUS CURIAE. . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Circuits are diametrically split over the

comparability of medical and religious

exemptions in the context of vaccine

mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. There is a widespread circuit split

over the comparability of medical

and religious exemptions to vaccine

mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Allowing medical but not religious

exemptions impermissibly

de va lue s r el i g iou s r e a s on s for

seeking exemption . . . . . . . . . . . . . . . . . . . . . 8

C. T h i s quest ion i s u rgent a nd of

national importance . . . . . . . . . . . . . . . . . . . 11

ii

Table of Contents

Page

II. T h i s C o u r t s h o u l d c l a r i f y t h e

comparability test under Smith to the

extent possible, or otherwise reverse

Smith to restore substantive equality

for religious observers . . . . . . . . . . . . . . . . . . . . . 13

A. Level of generality of government’s

interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. One-to-one or aggregate comparison . . . . 16

C. Smith fails to ensure substantive

equality for religious observers and

should be overruled . . . . . . . . . . . . . . . . . . . 18

III. Plaintiffs are suffering a burden of the

“same character” as in Yoder . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . 6, 9-11, 15, 19

Doe v. San Diego Unified Sch. Dist.,

19 F.4th 1173 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 6

Does 1-11 v. Bd. of Regents of the Univ. of Colorado,

100 F.4th 1251 (10th Cir. 2024) . . . . . . . . . . . . . . . . 4, 9

Does 1-3 v. Mills,

142 S. Ct. 17 (2021) . . . . . . . . . . . . . . . . . . . . . . 3, 14, 15

Doster v. Kendall,

54 F.4th 398 (6th Cir. 2022) ,

vacated on other grounds by

Kendall v. Doster, 144 S. Ct. 481 (2023) . . . . . . . . . 6, 7

Dr. A v. Hochul,

142 S. Ct. 552 (2021) . . . . . . . . . . . . . . . . . . . . 11, 16, 17

E.E.O.C. v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Emp’t Div. v. Smith,

494 U.S. 872 (1990) . . . . . . . . . . . 1, 3, 13, 14, 17, 19, 20

iv

Cited Authorities

Page

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Fraternal Order of Police Newark Lodge No. 12

v. City of Newark,

170 F.3d 359 (3d Cir. 1999) . . . . . . . . . . . . . . . . . 6, 9, 15

Fulton v. City of Phila.,

593 U.S. 522 (2021) . . . . . . . . . . . . . . . . . . . . . . 7, 13, 19

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 19

Jacobson v. Massachusetts,

197 U.S. 11 (1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Leebaert v. Harrington,

332 F.3d 134 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 21

Lowe v. Mills,

68 F.4th 706 (1st Cir. 2023) . . . . . . . . . . . . . . . . . . . 5, 16

M.A. on behalf of H.R. v. Rockland County

Department of Health,

53 F.4th 29 (2d Cir. 2022) . . . . . . . . . . . . . . . . 7-9, 14, 17

Mahmoud v. McKnight,

102 F.4th 191 (4th Cir. 2024),

rev’d and remanded sub nom.

Mahmoud v. Taylor, 145 S. Ct. 2332 (2025) . . . . . . 21

v

Cited Authorities

Page

Mahmoud v. Taylor,

606 U.S.

, 145 S. Ct. 2332 (2025) . . . . . . 1, 3, 20-23

Masterpiece Cakeshop v.

Colorado Civil Rights Comm’n,

584 U.S. 617 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Miller v. McDonald,

130 F.4th 258 (2d Cir. 2025) . . . 2, 5-7, 9, 13, 14, 16, 21, 23

Nikolao v. Lyon,

875 F.3d 310 (6th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 7

Nottelson v. Smith Steel Workers

D.A.L.U. 19806, AFL-CIO,

643 F.2d 445 (7th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 18

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Doe v. San Diego Unified School District,

22 F.4th 1099 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . 8, 9

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Spivack v. City of Philadelphia,

109 F.4th 158 (3d Cir. 2024) . . . . . . . . . . . . . 6, 9, 14, 16

Tandon v. Newsom,

593 U.S. 61 (2021) . . . . . . . . . . . . . . . . . . . . . . . 6, 14, 17

vi

Cited Authorities

Page

Trump v. CASA, Inc.,

606 U.S.

, 145 S. Ct. 2540 (2025) . . . . . . . 13, 16, 17

U.S. Navy SEALs 1-26 v. Biden,

27 F.4th 336 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 6

We The Patriots USA, Inc. v. Conn. Office of

Early Childhood Dev.,

76 F.4th 130 (2d Cir. 2023) . . . . . . . . . . 6, 7, 9, 10, 14-16

We The Patriots USA, Inc. v. Hochul,

17 F.4th 266 (2d Cir. 2021) . . . . . . . . . . . . . . 5, 6, 16, 17

Wisconsin v. Yoder,

406 U.S. 207 (1972) . . . . . . . . . . . . . . . . . . . . . . 3, 20-23

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . . . 15

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

42 U.S.C. §2000e(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

118 Cong. Rec. 705 (1972) (statement of Sen.

Randolph) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vii

Cited Authorities

Page

Duncan, Free Exercise is Dead, Long Live Free

Exercise: Smith, Lukumi, and the General

Applicability Requirement, 3 U. Pa. J. Cons.

L. 850 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Erika Edwards, “Vaccinations rise when states

button up religious loopholes,” NBC News

(July 5, 2025), https://w w w.nbcnews.com/

health/health-news/vaccinations-rise-statesreligious-loopholes-exemptions-rcna212334 . . . . . . 12

Hackell, Jesse M., “AAP: Nonmedical exemptions to school immunization requirements

should be eliminated,” AAP (July 28, 2025),

ht t p s: // p u bl i c a t i on s . a a p . o r g /a a p n e w s /

news/32619/A AP-Nonmedical-exemptionsto-school-immunization . . . . . . . . . . . . . . . . . . . . . . . 12

Hackell, Jesse M., et al., “Medical vs Nonmedical

Immunization Exemptions for Child Care and

School Attendance: Policy Statement,” Vol. 156,

Issue 2, American Academy of Pediatrics (August

2025), https://tinyurl.com/ynzuhpn4 . . . . . . . . 2, 11, 12

Laycock, Generally Applicable Law and the Free

Exercise of Religion, 95 Neb. L Rev. 1 (2016) . . 15, 16

1

INTEREST OF AMICUS CURIAE.1

Amicus Curiae, the Thomas More Society (“TMS”),

is a not-for-profit, national public interest law firm based

in Chicago, Illinois, dedicated to restoring respect in law

for human life, family, and religious liberty. TMS has

been actively involved in defending religious liberty in

the context of vaccine mandates in recent years, including

serving as plaintiffs’ counsel in several of the cases

discussed below. TMS thus has a distinct interest in this

Court resolving a clear circuit split over whether allowing

medical but not religious vaccine exemptions triggers

strict scrutiny under the Free Exercise Clause. It also

has an interest in this Court bringing clarity to the oftconfused general applicability test even beyond the context

of vaccine mandates. Alternatively, it has a longstanding

interest in this Court overruling Employment Division

v. Smith, and in recognizing parents’ fundamental Free

Exercise rights to direct the religious upbringing of their

children, as recently re-affirmed in Mahmoud v. Taylor.

1. No party’s counsel authored this brief in whole or part;

no party or party’s counsel contributed money intended to

fund the brief; and no person other than Amicus Curiae, their

members, or their counsel contributed money intended to fund

the brief. Counsel were notified of this filing pursuant to Supreme

Court Rule 37.2 on August 20, 2025, more than 10 days before

Respondents’ original September 3, 2025 deadline for filing their

brief in opposition.

2

INTRODUCTION AND SUMMARY

OF ARGUMENT

The Second Circuit’s decision below exacerbates a

diametrical circuit split over whether vaccine mandates

that allow medical but not religious exemptions trigger

strict scrutiny under the Free Exercise Clause. The

Second Circuit held that medical exemptions to New York’s

vaccine requirement for school children further New

York’s broad asserted interest in “protect[ing] the health

of all New Yorkers,” but “[e]xempting religious objectors

. . . detracts from that interest.” Miller v. McDonald, 130

F.4th 258, 267 (2d Cir. 2025) (first alteration in original).

Circuits are now split 4 to 3 on whether medical

exemptions are comparable to religious exemptions in the

context of Free Exercise challenges to vaccine mandates.

See infra. This split is fully ripe and in need of this Court’s

intervention—especially given the American Academy

of Pediatrics’ (“AAP’s”) renewed recommendation for

eliminating non-medical exemptions from school vaccine

mandates. 2

Additionally, the decision below violates this Court’s

longstanding recognition that government may not

devalue religious interests when pursuing secular goals.

And it exposes widespread confusion about how to conduct

general applicability analysis that at minimum requires

this Court’s clarification.

2. Hackell, Jesse M., et al., “Medical vs Nonmedical

Immunization Exemptions for Child Care and School Attendance:

Policy Statement,” Vol. 156, Issue 2, American Academy of

Pediatrics (August 2025), https://tinyurl.com/ynzuhpn4.

3

Even if New York’s actions were neutral and generally

applicable, this case confirms the need to overrule

Employment Division v. Smith, which effectively

eliminated the Free Exercise Clause’s textual protection

from the special burdens religious observers sometimes

bear under rules that are generally applicable only in the

most formal sense. Alternatively, this Court should at least

reverse under Mahmoud v. Taylor, 606 U.S. ----, 145 S.

Ct. 2332 (2025), as New York’s burden on the Old Order

Amish Plaintiffs here is of precisely “the same character”

as the burden imposed on the Old Order Amish parents

and children in Yoder.

ARGUMENT

I.

Ci rcuit s a r e d ia met r ic a lly split over the

comparability of medical and religious exemptions

in the context of vaccine mandates.

Since this Court denied emergency relief in Does 1-3 v.

Mills four years ago, see 142 S. Ct. 17, 18 (2021) (Barrett,

J., concurring) (noting petition challenging denial of

religious but not medical vaccine exemptions was “the

first to address the questions presented”), a diametrical

circuit split has emerged over whether medical exemptions

are comparable to religious exemptions in the context of

vaccine mandates, and thus whether such policies are

subject to strict scrutiny under the Free Exercise Clause.

This split is fully ripe; the decision below improperly

devalues religious interests; and this case is of national

importance.

4

A.

There is a widespread circuit split over the

comparability of medical and religious

exemptions to vaccine mandates.

While the question of medical and religious vaccine

exemption comparability may have been nascent in 2021,

it is not so today. Currently, the First, Fifth, Sixth, and

Tenth Circuits have recognized the comparability of

medical and religious exemptions from vaccine mandates,

while the Second, Third, and Ninth Circuits have held

to the contrary (but with internal conflicts in at least the

Second and Ninth Circuits).

As to circuits recognizing comparability, the Tenth

Circuit recently observed that “a government [vaccine]

policy that grants an exemption for medical reasons

but denies the same exemption for religious reasons

is not generally applicable.” Does 1-11 v. Bd. of Regents

of the Univ. of Colorado, 100 F.4th 1251, 1277 (10th

Cir. 2024) (emphasis added) (internal quotation marks

omitted). The Court held the University’s COVID-19

vaccine exemption policy was “not generally applicable,

and [thus] subject to strict scrutiny,” because it allowed

“secular medical exemptions” on “more favorable terms

than religious exemptions.” Id. at 1277-78. Further, the

University’s policy failed strict scrutiny in part because

it did not explain why the Plaintiffs “pose[d] more of a

risk” of spreading COVID-19 than their “unvaccinated

. . . coworkers[] or other classmates.” Id. at 1278. The

Tenth Circuit thus squarely held that if government allows

medical exemptions from a vaccine mandate, it must allow

religious exemptions on equal terms or otherwise undergo

strict scrutiny. This is in direct conflict with the Second

Circuit’s decision below.

5

The First Circuit has reached a similar conclusion,

deeming it plausible that “the inclusion of [ ] medical

exemption[s]” in Maine’s COVID-19 vaccine mandate for

healthcare workers “undermines the State’s interests

in the same way that a religious exemption would by

introducing unvaccinated individuals into healthcare

facilities.” Lowe v. Mills, 68 F.4th 706, 715 (1st Cir. 2023).

While the Court opined that comparability also hinges on

a comparison of the total number of medical and religious

exemptions, see id. at 715-16, its holding still departs from

the Second Circuit’s decision in Miller that “maintaining

[a] medical exemption” is per se non-comparable. 3

The Fifth and Sixth Circuits have also recognized

the comparability of medical and religious exemptions in

the context of challenges to the Department of Defense’s

(“DOD’s”) COVID-19 vaccine mandate under the Religious

Freedom Restoration Act (“RFRA”). Both circuits held

that DOD’s allowance of medical exemptions, but not

3. To be sure, the Second Circuit further opined that medical

exemptions’ allegedly shorter duration and more limited number

“are meaningfully different” than religious exemptions. Miller,

130 F.4th at 268 (emphasis added). But this argument merely

supplemented its prior conclusion that medical exemptions are

per se non-comparable. See id. Regardless, the Second Circuit’s

refusal to allow discovery on aggregate risk data despite the

extremely small number of Amish students attending the three

isolated Plaintiff schools, see, e.g., Petition at 15, still directly

conf licts with the First Circuit’s remand for discovery on

aggregate risk comparability, cf. Lowe, 68 F.4th at 71. The Second

Circuit’s decision also directly conflicts with prior Second Circuit

precedent itself. See We The Patriots USA, Inc. v. Hochul, 17 F.4th

266, 286 (2d Cir. 2021) (holding at preliminary injunction stage

that “factual development” may show that medical and religious

exemptions are comparable in the aggregate).

6

religious exemptions, rendered its COVID-19 vaccine

mandate “underinclusive” for purposes of RFRA’s

compelling interest test. See U.S. Navy SEALs 1-26

v. Biden, 27 F.4th 336, 352 (5th Cir. 2022); Doster v.

Kendall, 54 F.4th 398, 423 (6th Cir. 2022), vacated on

other grounds by Kendall v. Doster, 144 S. Ct. 481 (2023).

Underinclusiveness is also the touchstone of Free Exercise

comparability analysis. See Church of Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 544-45 (1993);

Tandon v. Newsom, 593 U.S. 61, 62 (2021); Fraternal

Order of Police Newark Lodge No. 12 v. City of Newark,

170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.). Accordingly, the

Fifth and Sixth Circuit’s holdings also directly conflict

with the Second Circuit’s decision below

But, as noted, at least three Circuits have reached the

opposite conclusion. In addition to the Second Circuit’s

decision in Miller—following its similar decisions in We

The Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir.

2021) (“Hochul”) and We The Patriots USA, Inc. v. Conn.

Office of Early Childhood Dev., 76 F.4th 130 (2d Cir. 2023)

(“We The Patriots”)—both the Third and Ninth Circuits

have also held that medical and religious exemptions

are not comparable in the context of Free Exercise

challenges to vaccine mandates. See Spivack v. City of

Philadelphia, 109 F.4th 158, 172-73 (3d Cir. 2024) (“Unlike

a religious exemption, a medical exemption furthers the

[government’s] interest in keeping its employees safe and

healthy by allowing employees for whom the COVID-19

vaccine would cause death or illness to abstain from

vaccination.”); Doe v. San Diego Unified Sch. Dist., 19

F.4th 1173, 1177-78 (9th Cir. 2021) (medical exemption to

COVID-19 vaccine mandate “serves [the school’s] primary

interest . . . [in] protecting student ‘health and safety’—

7

and so does not undermine the District’s interests as a

religious exemption would”).4

Still, internal conflict exists in both the Second and

Ninth Circuits. In M.A. on behalf of H.R. v. Rockland

County Department of Health, the Second Circuit held

that a county’s allowance of medical exemptions from its

measles vaccine mandate might trigger strict scrutiny

under the Free Exercise Clause, depending on “what

governmental interest the [mandate] was intended to

serve.” 53 F.4th 29, 39 (2d Cir. 2022) (reversing summary

judgment and remanding for “fact-intensive” inquiry into

the interests underlying the mandate). Judge Park opined

separately that the mandate was per se “not generally

applicable because, by allowing a medical exemption, it

‘prohibit[ed] religious conduct while permitting secular

conduct that undermine[d] the government’s interests

in a similar way.’” Id. at 41 (Park, J., concurring)

(quoting Fulton v. City of Phila., 593 U.S. 522, 534 (2021)

(alterations in original)). His conclusion did not hinge

on aggregate risk data or the level of generality of the

government’s interest—contrary to Miller.

Additionally, Judge Bianco dissented in We The

Patriots and would have held that medical exemptions

plainly “pose[] the same health risk to another student

as an unvaccinated student with a religious objection.”

76 F.4th at 165, 169 (Bianco, J., partially dissenting).

4. The Sixth Circuit has also previously opined in dicta that

“compulsory vaccination laws with only medical exemptions do

not violate any federal constitutional right.” Nikolao v. Lyon, 875

F.3d 310, 316 (6th Cir. 2017) (citing Jacobson v. Massachusetts,

197 U.S. 11, 38 (1906)). But that statement is in tension with the

Sixth Circuit’s more recent holding in Doster. See 54 F.4th at 423.

8

He also noted the majority’s affirmance of the dismissal

of Plaintiffs’ claims conflicted with Rockland County’s

holding on “the need for a fully developed record at trial

on the comparable risks associated with religious and

secular exemptions.” Id.

In the Ninth Circuit, no fewer than 10 active Circuit

judges, along with Judge O’Scannlain, would have held

that allowing medical exemptions from a COVID-19

vaccine mandate triggered strict scrutiny under the Free

Exercise Clause. See Doe v. San Diego Unified School

District, 22 F.4th 1099, 1104-05 (9th Cir. 2022) (Bumatay,

J., dissenting from denial of reh’g en banc, joined by

Callahan, Ikuta, R. Nelson, Collins, Lee, and Van Dyke,

J.J.); id. at 1114 (O’Scannlain, J., statement “agree[ing]

with the views expressed by Judge Bumatay”); id. at

1114-15 (Bress, J., dissenting from denial of reh’g en banc,

joined by Bade, J.); id. at 1115 (Forrest, J., dissenting from

denial of reh’g en banc).

Accordingly, there is now a deep and widespread

circuit split—along with internal strife in several

circuits—over whether medical exemptions from vaccine

mandates are comparable to religious exemptions and thus

trigger strict scrutiny under the Free Exercise Clause.

This Court should grant certiorari to resolve the split.

B. Allowing medical but not religious exemptions

impermissibly devalues religious reasons for

seeking exemption.

The purpose of general applicability analysis is to

discern whether the government “has made a value

judgment that” secular motivations for exemption “are

important enough to overcome its general interest

9

[underlying the particular mandate at issue] but that

religious motivations are not.” Fraternal Order, 170 F.3d

at 366. Allowing medical exemptions, but not religious

exemptions, from vaccine mandates plainly violates this

principle.

The Tenth Circuit recognized as much in Does 1-11:

“The [challenged] Policy on its face makes a value judgment

in favor of secular motivations because it has a lower bar

for denying religious exemptions” as compared to “secular

medical exemption[s].” 100 F.4th at 1277. Indeed, if medical

exemptions are important enough for seeking exemption

but religious exemptions are not (or are subject to less

favored treatment), the government has “of necessity

devalue[d] religious reasons for [avoiding vaccination] by

judging them to be of lesser import than nonreligious

reasons.” Lukumi, 508 U.S. at 537-38 (emphasis added).

Circuits holding that medical and religious vaccine

exemptions are not comparable assume that so long as

government is pursuing sufficiently broad interests in

physical “health,” it can leave religious interests for

avoiding vaccination behind. See, e.g., We The Patriots, 76

F.4th at 151 (medical exemption consistent with vaccine

mandate’s furtherance of “health and safety of Connecticut

students”); Miller, 130 F.4th at 267 (same); San Diego, 19

F.4th at 1178 (same). This assumption is particularly stark

in decisions stating that medical exemption comparability

depends on the particular interest asserted by the

government in promulgating its respective mandate. See

Rockland Cnty., 53 F.4th at 39; Spivack, 109 F.4th at 175.

But this Court has made clear that “[t]he Free

Exercise Clause protect[s] religious observers against

unequal treatment.” Lukumi, 508 U.S. at 542 (internal

10

quotes omitted). Thus, it cannot be true that government

can pursue any interest at the expense of religious

exercise, or that comparability hinges on a government’s

mere “say so.” Justice Kavanaugh explained as much

in Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct.

2603 (2020), where Nevada sought to re-open casinos and

restaurants on a more favorable basis than churches “to

jump-start business activity and preserve the economic

well-being of its citizens” during COVID-19. Id. at

2614 (Kavanaugh, J., dissenting). Nevada’s approach

“reflect[ed] an implicit judgment that for-profit assemblies

are important and religious gatherings are less so,” thus

“‘devaluing religious reasons’ for congregating ‘by judging

them to be of lesser import than nonreligious reasons,’ in

violation of the Constitution.” Id. (quoting Lukumi, 508

U.S. at 537-38). Applied here, the practice of allowing

medical but not religious exemptions reflects an implicit

judgment that religious well-being is “of lesser import”

than physical well-being—even as it remains objectively

undeniable that a medical exemption allows one to remain

unvaccinated against the precise disease the otherwiserequired vaccine is designed to prevent (or ameliorate).

That is hardly “equal treatment” for religious observers.

Accord We The Patriots, 76 F.4th at 172 (Bianco, J.,

partially dissenting) (stating same).

Justice Thomas opined similarly in Espinoza v.

Montana Department of Revenue, 591 U.S. 464 (2020),

noting that when government argues it may not “endorse”

religion, it “communicates a message that religion is

dangerous and in need of policing, which in turn has the

effect of tilting society in favor of devaluing religion,” id. at

494 (Thomas, J., concurring) (citing Sorrell v. IMS Health

Inc., 564 U.S. 552, 578-79 (2011) (content-based restrictions

“tilt public debate in a preferred direction”)). The same

11

applies here: allowing medical exemptions in service of

physical health while precluding religious exemptions has

the effect of exalting physical over religious well-being

and thereby “communicates a message that religion is

dangerous and in need of policing.” Id. at 494 (Thomas,

J., concurring).

This is all the more true where, as here, the sole object

of the legislation is to eliminate a previously existing

religious exemption while leaving the availability of

medical exemptions in place. See Dr. A v. Hochul, 142 S.

Ct. 552, 556 (2021) (Gorsuch, J., dissenting) (recognizing

that elimination of previously existing religious exemption

from COVID-19 vaccine mandate “leave[s] little doubt

that the revised mandate was specifically directed at the

applicants’ unorthodox religious beliefs and practices”);

see also Lukumi, 508 U.S. at 531 (“Neutrality and general

applicability are interrelated, and . . . failure to satisfy

one requirement is a likely indication that the other has

not been satisfied.”).

Accordingly, New York’s direct elimination of religious

exemptions while maintaining medical exemptions

indicates an impermissible value judgment favoring

physical over religious well-being—contrary to the Free

Exercise Clause’s minimum promise of equal treatment

treatment for religious observers.

C.

This question is urgent and of national

importance.

In August 2025, the AAP renewed its position calling

for the elimination of “nonmedical” exemptions from

school vaccine mandates. See Hackell, et al., supra n.2 at

pp. 73-77. The AAP specifies that “nonmedical exceptions

12

based on religious belief can substantially limit the

public health value of vaccine requirements for school

attendance” and thus allegedly render schools “less safe.”

Id. at p. 75. The AAP also alleges that no “major world

religious traditions” officially “preclude adherents from

being vaccinated”—confirming the anti-“unorthodox”

bias behind its recommendation. Notably, the A AP

originally adopted this position in 2016. See Hackell,

“AAP: Nonmedical exemptions to school immunization

requirements should be eliminated,” AAP (July 28, 2025).5

Since then, Maine, New York, and Connecticut have

eliminated religious exemptions from their school vaccine

requirements, see Petition at 9, following California’s

elimination of the same in 2015, see id.

Such a marked trend, buoyed by the AAP’s express

support, confirms the urgency and national importance of

clarifying whether government vaccine policies allowing

medical but not religious exemptions (or at least those

eliminating previously existing religious exemptions

consistent with the A AP’s advocacy) trigger strict

scrutiny under the Free Exercise Clause. See also, e.g.,

Erika Edwards, “Vaccinations rise when states button up

religious loopholes,” NBC News (July 5, 2025) (discussing

pending Massachusetts bill to remove “nonmedical

exemptions” from mandatory vaccination in public

schools).6 Guidance from this Court on the constitutionality

of such policies is urgently needed.

5. https://publications.aap.org/aapnews/news/32619/AAPNonmedical-exemptions-to-school-immunization.

6 . ht t p s: // w w w. nb c ne w s .c om / he a lt h / he a lt h -ne w s /

vaccinations-r ise-states-relig ious-loopholes- exemptionsrcna212334.

13

II. This Court should clarify the comparability test

under Smith to the extent possible, or otherwise

reverse Smith to restore substantive equality for

religious observers.

The decision below exacerbates great confusion in the

lower courts about how to conduct comparability analysis

under Smith. This Court’s intervention is sorely needed

at least to clarify the extent to which governments can

assert broad interests at sky-high levels of generality and

thus effectively load the dice of comparability analysis

before it gets off the ground. It should also clarify whether

general applicability turns on a comparison of aggregate

numbers of total or actual expected exemptions (even

for non-parties), especially after this Court’s recent

recognition in Trump v. CASA, Inc., 606 U.S. ---- , 145 S.

Ct. 2540 (2025) that federal courts generally cannot issue

universal injunctions.

Moreover, Miller confirms the need to overrule Smith,

which eliminated the Free Exercise Clause’s promise

of substantive equality for religious believers to allow

reprieve from special burdens they can suffer from rules

that are “generally applicable” only in the most formalistic

sense.

A.

Level of generality of government’s interests.

Because this Court has stated that general applicability

turns on “the government’s asserted interests” underlying

the relevant mandate, Fulton, 593 U.S. at 534 (emphasis

added), several lower courts have looked to extra-textual

legislative indicia in deciding whether an available

secular exemption undermines a challenged law’s purpose.

14

See, e.g., Spivack, 109 F.4th at 175 (Tandon “indicates

we must give some deference to how the government

characterizes its own interests”). But that approach easily

allows lawmakers to effect religious gerrymanders by

strategically-placed statements in the record. Accord

We the Patriots, 76 F.4th at 171 (Bianco, J., partially

dissenting). This Court should cut off that trend.

As Judge Park has recognized, Smith’s generalapplicability test “embraces a purposivist approach

that is vulnerable to manipulation and arbitrariness.”

Rockland Cnty., 53 F.4th at 42 (Parker, J., concurring).

Justices Gorsuch, Thomas, and Alito have thus warned

courts not to “restat[e] the State’s interests . . . at an

artificially high level of generality” based on “post-hoc

reimaginings” that are broader than “the government’s

actually asserted interests.” Does 1-3, 142 S. Ct. at 20

(Gorsuch, J., dissenting, joined by Thomas, J., and Alito,

J.) (original emphasis).

But some courts have responded by relying on

“actually asserted” broad interests lurking in the record.

See We The Patriots, 76 F.4th at 151-52 (noting legislative

history asserting purpose to “protect the public health”

and concluding “there is [thus] no cause to fear that

Connecticut or the district court has ‘restat[ed] the State’s

interest . . . at an artificially high level of generality’”)

(alterations in original) (quoting Does 1-3, 142 S. Ct. at 20

(Gorsuch, J., dissenting)); accord Spivack, 109 F.4th at 175

(similar); Miller, 130 F.4th at 267 (looking to “Sponsor’s

Memorandum” and “Bill Jacket”).

Missing from these courts’ analyses, however, is the

Free Exercise Clause’s longstanding protection against

15

“religious gerrymander[s].” Lukumi, 508 U.S. at 535

(internal quotations omitted). For this reason, the generalapplicability test’s vulnerability to manipulation requires

more than bare judicial reliance on a government’s (or

policymaker’s) mere say-so in the record. Otherwise,

governments could enact de facto gerrymanders “by

adjusting the dials” of a challenged law’s asserted purpose

“just right.” Masterpiece Cakeshop v. Colorado Civil

Rights Comm’n, 584 U.S. 617, 652 (2018) (Gorsuch, J.,

concurring) (original emphasis).

Instead, courts should look to whether a secular

exemption undermines at least one of a challenged law’s

objective purposes. If so, strict scrutiny applies. Judge

Bianco recognized as much in his We The Patriots

dissent, noting that while a medical exemption “may

support the State’s interest in one way (namely, avoiding

any harm to that student from the vaccination),” it “may

also undermine the state’s interest in another way that

is similar to the impact of a religious exemption (namely,

avoiding the spread of disease in public schools).” We The

Patriots, 76 F.4th at 168 (Bianco, J., partially dissenting).

This approach is consistent with then-Judge Alito’s

analysis of the no-beard requirement in Fraternal Order.

Surely the medical exemption for officers with “pseudo

folliculitis barbae” promoted a healthy police force. See 170

F.3d at 360. And “almost any state action might be said to

touch on ‘. . . health and safety.’” Does 1-3, 142 S. Ct. at 20

(Gorsuch, J., dissenting) (quoting Yellowbear v. Lampert,

741 F.3d 48, 57 (10th Cir. 2014)). But the medical exemption

“undoubtedly undermine[d]” the no-beard rule’s objective

purpose “in fostering a uniform appearance.” Fraternal

Order, 170 F.3d at 366 (emphasis added); see Laycock,

Generally Applicable Law and the Free Exercise of

16

Religion, 95 Neb. L Rev. 1, 8 (2016) (noting a law’s “object”

includes “simply what the law does, or what it is intended

to do, regardless of why legislators wanted to do those

things”).

Accordingly, this Court should clarify that if a secular

exemption undermines at least one of the law’s objective

purposes (even if statements lurking in the record also

assert much broader interests) to the same or greater

extent as a requested religious exemption, general

applicability is lacking and strict scrutiny applies.

B. One-to-one or aggregate comparison.

In Trump v. CASA, Inc., this Court held that universal

injunctions violate the “long” “equitable tradition” that

“courts generally may administer complete relief between

the parties.” 145 S. Ct. at 2557 (original emphasis). Yet in

Hochul, the Second Circuit denied relief for 17 discrete,

individual plaintiffs spread throughout New York based

on “data” allegedly “indicat[ing] that claims for religious

exemptions” in the “aggregate”—even by non-parties—

”are far more numerous” than requests for medical

exemptions. 17 F.4th at 287. Multiple courts have since

followed that approach. See We the Patriots, 76 F.4th at

152; Lowe, 68 F.4th at 716; Spivack, 109 F.4th at 179 n.16;

Miller, 130 F.4th at 268.

But as Justice Gorsuch has explained, “this Court’s

general applicability test doesn’t turn on that kind of

numbers game.” Dr. A, 142 S. Ct. at 556 (Gorsuch, J.,

dissenting). Justice Gorsuch’s rationale rings all the more

true after CASA: “Laws operate on individuals; rights

belong to individuals. And the relevant question here

involves a one-to-one comparison between the individual

17

seeking a religious exemption and one benefiting from a

secular exemption.” Id. (emphasis added).

In contrast, Hochul insisted this Court’s decisions

in “Roman Catholic Diocese [of Brooklyn v. Cuomo, 592

U.S. 14 (2020)] and Tandon did not involve a one-to-one

comparison of the transmission risk posed by an individual

worshiper and[ ] an individual shopper,” but instead of

“the risks posed by groups of various sizes in various

settings.” 17 F.4th at 287. But the plaintiffs in those cases

were seeking to gather in groups—and thus comparison

to other group settings was required. In neither case did

this Court look to the aggregate risks posed by even nonplaintiff religious gatherings in comparison to permitted

secular gatherings. See Tandon, 593 U.S. at 62 (focusing

on “the religious exercise at issue”); Roman Catholic

Dioc., 592 U.S. at 17-18 (highlighting particular plaintiffs’

“admirable safety records”).

As Justice Gorsuch has explained, courts might

consider aggregate exemption numbers at the strict

scrutiny stage if a state asserts a compelling interest

in limiting the overall number of exemptions (say,

to achieve herd immunity). Dr. A, 142 S. Ct. at 556

(Gorsuch, J., dissenting). Even then, however, the state’s

aggregate exemption limit would need to be “divided in a

nondiscriminatory manner between medical and religious

objectors.” Id. at 556-57. “But none of this bears on the

preliminary question whether such a mandate is generally

applicable or whether it treats a religious person less

favorably than a secular counterpart.” Id. at 557.

This Court should grant certiorari and clarify this

issue.

18

C.

Smith fails to ensure substantive equality for

religious observers and should be overruled.

Alternatively, this Court should simply reverse Smith.

In addition to the workability problems of its general

applicability test discussed above, Smith “relegate[d]

a serious First Amendment value to the barest level of

minimum scrutiny that the Equal Protection Clause

already prohibits.” Emp’t Div. v. Smith, 494 U.S. 872, 894

(1990) (O’Connor, J., concurring); see also Rockland Cnty.,

53 F.4th at 42 (Park, J., concurring) (criticizing Smith’s

“inflexible,” “all-or-nothing” general applicability test).

But this Court has long “recognized that the Free Exercise

protects values distinct from those protected by the Equal

Protection Clause,” including because “the language of

the Clause itself makes clear” that “an individual’s free

exercise of religion is a preferred constitutional activity.”

Smith, 494 U.S. at 901-02 (O’Connor, J., concurring)

(emphasis added).

In other words, Smith wrongly transformed the Free

Exercise Clause into a rule of formal equality, ensuring

only that secular and religious actors are subject to the

same burdens from the government’s perspective. But

as a rule of religious liberty, the Free Exercise Clause

is inherently ordered toward “reliev[ing] [religious]

individuals of a special burden that others do not suffer.”

Nottelson v. Smith Steel Workers D.A.L.U. 19806,

AFL-CIO, 643 F.2d 445, 454 (7th Cir. 1981) (emphasis

added) (interpreting Title VII’s analogous religious

accommodation requirement); see also 118 Cong. Rec. 705

(1972) (statement of Sen. Randolph explaining that Section

701(j), codified at §2000e(j), reflects “the same concepts

as are included in the first amendment”).

19

As Justices A lito, Thomas, and Gorsuch have

noted, “the absence of any language referring to equal

treatment” in the Free Exercise Clause “is striking.”

Fulton, 593 U.S. at 569 (Alito, J., concurring, joined

by Thomas, J., Gorsuch, J.). Indeed, “[t]he Founders

understood that the right to free exercise would require

more than simple neutrality toward religion,” but rather

“that the government accommodate the religious practice,

rather than the reverse.” Horvath v. City of Leander, 946

F.3d 787, 796 (5th Cir. 2020) (Ho, J., partially concurring).

Congress adopted this precise concept into Title VII, see

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768,

775 (2015) (“Title VII requires otherwise-neutral policies

to give way for the need for an accommodation”), further

evincing that the Free Exercise Clause protects more than

merely formal equality.7 See also Duncan, Free Exercise

is Dead, Long Live Free Exercise: Smith, Lukumi, and

the General Applicability Requirement, 3 U. Pa. J. Cons.

L. 850, 880 (2001) (“Smith and Lukumi have transformed

the Free Exercise Clause from a liberty rule . . . to an

equality rule.”).

In reality, restoring the Free Exercise Clause’s liberty

rule would paradoxically restore substantive equality for

religious believers. During the Prohibition, for example,

the government exempted “the sacramental use of wine

by the Roman Catholic Church.” Smith, 494 U.S. at 913

n.6 (Blackman, J., dissenting). Absent an exemption, the

general ban on wine would have undoubtedly burdened

Catholics’ religious beliefs more than those of non7. That Justice Scalia (who authored Abercrombie) so clearly

perceived the insufficiency of neutral rules in the Title VII context

confirms the error of his contrary conclusion in the Free Exercise

context in Smith.

20

Catholics. The same was true in Wisconsin v. Yoder, 406

U.S. 207 (1972), where the state’s compulsory education

law plainly burdened members of the Amish religion more

than others. Yoder’s enforcement of the Free Exercise

Clause’s liberty rule restored the Amish to equal footing

with other members of society whose philosophical or

religious beliefs were not burdened by the challenged law.

The same is true here. Treating the Free Exercise

Clause as a liberty rule would remove the special burdens

imposed by New York’s vaccination requirement on the

Amish plaintiffs’ unique religious beliefs—or at least

require New York to show it has a sufficiently tailored

compelling interest to override those beliefs—regardless

of whether the law is “neutral and generally applicable”

in a formal sense. The free exercise of religion requires

nothing less. This Court should overturn Smith.

III. Plaintiffs are suffering a burden of the “same

character” as in Yoder.

If this Court does not find a lack of general applicability

or overturn Smith, it should reverse under Mahmoud. In

the case below, plaintiffs asserted that Wisconsin v. Yoder,

406 U.S. 205 (1972) controlled because Yoder, like this

case, involved the education decisions of Amish parents,

the Amish community’s unique status in American

society, and a state policy forcing Amish families to forego

religious practices. Mahmoud confirms that Plaintiffs

were correct.

Rather than follow Supreme Court precedent, the

Second Circuit constrained Yoder to its unique facts.

21

Citing its own precedent, the Second Circuit concluded

that the Supreme Court “took pains explicitly to limit

[Yoder’s] holding.” Miller, 130 F.4th at 270 (citing Leebaert

v. Harrington, 332 F.3d 134, 144 (2d Cir. 2003)). As the

Second Circuit saw it, Yoder was sui generis, and only

meant that a state cannot force Amish children to attend

high school. Yoder, therefore, would only apply when the

Amish face an “existential threat” to their faith or way of

life. Id. at 271. And to reassure itself, the Second Circuit

relied on the Fourth Circuit’s now overruled holding in

Mahmoud v. McKnight, 102 F.4th 191, 211 (4th Cir. 2024),

rev’d and remanded sub nom. Mahmoud v. Taylor, 145

S. Ct. 2332 (2025). Miller, 130 F.4th at 270 n. 16.

This Court’s decision in Mahmoud shows that the

Fourth Circuit’s application of Yoder was deeply flawed.

Rather than being limited to its circumstances, “Yoder

is an important precedent of this Court, and it cannot be

breezily dismissed as a special exception granted to one

particular religious minority.” Mahmoud, 145 S. Ct. at

2357.

“When the burden imposed is of the same character

as that imposed in Yoder, we need not ask whether the

law at issue is neutral or generally applicable before

proceeding to strict scrutiny.” Id. at 2361. A policy

need only “substantially interfere with the religious

development of the parent’s children” or “pose a very real

threat of undermining the religious beliefs and practices

that parents wish to instill in their children.” Id. (cleaned

up). This Court’s Mahmoud decision shows that the “same

character” standard applies to a broad range of coercive

measures taken by school officials.

22

In Yoder, the Court analyzed a compulsory attendance

law requiring all Wisconsin children to attend school until

the age of 16. Yoder, 406 U.S. at 207. The parent plaintiffs

objected to sending their 14- and 15-year-old children to

any school at all, because doing so removed their children

from their community during a formative adolescent

period. Id. at 211. This Court noted that Wisconsin’s law

would “ultimately result in the destruction of the Old

Order Amish church community.” Id. at 212. Given that the

Wisconsin community included only about 250 children,

this threat was real. Id. at 245 (Douglas, J., dissenting

in part). As Justice Sotomayor recently explained, “[t]he

problem in Yoder was . . . that it compelled Amish parents

to do what their religion forbade.” Mahmoud 145 S. Ct.

at 2389 (Sotomayor, J., dissenting).

In Mahmoud, however, there was no such existential

threat to plaintiffs’ religions. The plaintiffs, who were

Muslim, Catholic, and Orthodox (id. at 2347-2348), never

asserted that Montgomery County would extinguish

their billion- and million-member religions. Nor did the

Mahmoud parents assert that their religions explicitly

“forbade” their children to read pro-LGBT books.

Nonetheless, the Court concluded that “the burden [was]

of the exact same character as the burden in Yoder.” Id.

(emphasis added).

This case, too, presents a burden of the “exact same

character as the burden in Yoder” because New York’s

policy interferes with and poses a very real threat of

undermining the religious upbringing of plaintiffs’

children. Indeed, it is an even closer parallel to Yoder than

Mahmoud was, because Plaintiffs’ religious beliefs “do

not permit them to inject their children with vaccines.”

23

Miller, 130 F.4th at 262 (cleaned up). New York is forcing

parents to “do what their religion forb[ids].” Mahmoud,

145 S. Ct. at 2389 (Sotomayor, J., dissenting) (citing Yoder).

If Mahmoud was the “exact same character” as Yoder,

this case is Yoder’s identical twin.

The foundation of the Second Circuit’s decision—that

Yoder is a sui generis case limited to its facts—is simply

false. This Court has confirmed that Yoder reaches much

further than the Second Circuit’s limitations. At minimum,

therefore, this Court should correct the Second Circuit’s

misinterpretation of Yoder.

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Thomas L. Brejcha

Counsel of Record

Michael G. McHale

Nathan Loyd

Thomas More Society

309 West Washington Street,

Suite 1250

Chicago, IL 60606

(312) 782-1680

tbrejcha@thomasmoresociety.org

Counsel for Amicus Curiae