The list of municipalities that botched the coronavirus pandemic is long and inglorious, but if any place distinguished itself as the paragon of COVID mismanagement, it is New York, both state and city.
Gov. Andrew Cuomo’s dispatch of elderly virus patients into nursing homes will live in health care infamy, along with his attempt to cover up the data on the subsequent nursing home deaths. The fetid aroma of pushing out a celebrity memoir to capitalize on his newfound celebrity and promulgate “leadership lessons” he derived from the pandemic can be traced not to any coronaviral miscalculation but rather to an outsized ego buttressed by sycophantic myrmidons.
The City of New York matched the governor mask for mask, economic and educational loss for economic and educational loss. The city stayed locked down way too long and kept kids out of classrooms much longer than other cities.
One particular malevolent policy undertaken by Big Apple pols was a workplace vaccine mandate for public employees instituted long after the pandemic had waned, which was lifted, unbelievably, only Friday, fully three years after “two weeks to stop the spread” had begun its metastasizing march through the country.
A number of New Yorkers axed by the vax diktat have gone to court seeking redress — and reinstatement to their jobs — because, they contend, the city violated their sincere religious beliefs in firing them for not getting the jab.
An attorney representing New Yorkers for Religious Liberty, among whom are firefighters, building inspectors, police officers, EMTs, teachers, and sanitation workers, argued before the Second Circuit Court of Appeals Wednesday that the city had treated his clients unfairly, terminating them for not receiving the vaccination while exempting others from the citywide edict.
Alliance Defending Freedom counsel John Bursch argued for a temporary stay of the injunction while the plaintiffs await the full Second Circuit to take up the case. In his court brief, he said his clients were suffering “the loss of First Amendment rights, are facing deadlines to move out of homes in foreclosure or with past-due rents, are suffering health problems due to loss of their City health insurance and the stress of having no regular income, and resorting to food stamps and Medicaid just to keep their families afloat.”
The city vax mandate might have held up, Bursch wrote, if it exempted no one from the vaccination requirement:
But the exact opposite is true. The City provides exemptions from its omnibus COVID vaccination requirements for athletes, entertainers, and strippers; exempts thousands of unvaccinated municipal employees whose applications have been allowed to pend indefinitely because of staffing shortages and other secular concerns; offers a medical exemption; and provides a religious exemption for City employees — one granted rarely in officials’ unfettered and standardless discretion.
Because the city established a mechanism for granting individualized exemptions from the mandate (a panel that ruled on individual cases) and played favorites in enforcing it, Bursch maintains, it cannot be considered a rule of general applicability — it is not a law that applies equally to all people — and thus it requires strict scrutiny. Under strict scrutiny, the government has to show a “compelling interest” before it can place a burden on the free exercise of religion, and any burden it imposes has to be done “in the least restrictive means possible.”
Given the randomness of the exemptions, and the idiosyncratic rulings, the prospect of the government successfully claiming a compelling interest in denying the sincere religious beliefs of the plaintiffs would seem dim.
For example, one applicant for reinstatement, a nondenominational Buddhist, was denied because his religious beliefs conflicted with the pope’s. Another was denied an exemption from getting the vaccine because Education Department representatives said that though the woman was a sincere Muslim, a Muslim leader whom the woman did not follow had stated publicly that he had received the vaccination. Wrote Bursch, “The [Department of Education] believed this announcement somehow invalidates religious exemption claims of all Muslims.” Another applicant was denied an exemption because, although his religious beliefs were judged sincere, he wouldn’t get jabbed because aborted fetal cells are implicated in the production or testing of the vaccines. Another, a born-again Christian, admitted to receiving vaccines before he become religious but said that he has, for religious reasons, rejected vaccines since his conversion; he was denied because he had taken vaccines earlier in life.
Add to these the mayoral carve-outs for certain classes of people — namely pro jocks, actors, and strippers — because the city would benefit from their activities. Bursch wrote:
So, while NBA star Kyrie Irving could return to the basketball court, Broadway entertainers could return to the stage (along with their make-up artists and entourages), and strippers could return to airless, enclosed adult entertainment parlors, hardworking sanitation workers, building inspectors, police officers and other public and private sector workers could not return to work — even if they had no in-person contact with the public.
Bursch is asking the Second Circuit to listen to the city servants who were punished by New York’s “discretionary and unconstitutional” vaccine mandate, some losing their homes in the process because they stood up for their religious beliefs. “It’s past time New York City honored the faith tradition of its public workers and rescinded its unconstitutional vaccine policies,” he said.
The name of the case is New Yorkers for Religious Liberty v. City of New York. The full Second Circuit is expected to hear it in the coming months.