Flags and masks: SCOTUS and SJC issue new decisions

May 2, 2022:- Two new decisions arrived today, one from a unanimous Supreme Court of the United States (SCOTUS) against the City of Boston’s refusal to let an applicant fly a Christian flag from a municipal flagpole, and the other from the Supreme Judicial Court (SJC) of Massachusetts regarding the City of Lynn’s insistence that a busines owner conduct her business be-masked.

For Shurtleff v. City of Boston click here, and for City of Lynn v. Murrell click here.

Shurtleff v. City of Boston

SCOTUS held that the City of Boston’s refusal to approve Harold Shurtleff’s request to raise a Christian flag on a City flagpole abridged his right to freedom of speech. The City had allowed people to use the City flagpole to fly the flags of other countries, e.g. Venezuela, and various secular organizations, e.g. Metro Credit Union, but claimed that flying this particular flag could constitute “government speech.” Justice Alito’s concurrence addresses this succinctly:

The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker. For
example, the City allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia… a country in which “homosexual act[s]” are punishable by “imprisonment for not less than one year.”

The prize for the pithiest observation, however, goes to Justices Thomas and Gorsuch in their concurrence. To see what I mean, scroll down to page 40.

City of Lynn v. Murrell

In this case, the City of Lynn fined business owner Ariana Murrell for her no-mask policy, which defied the Commonwealth mask mandate. How did the City find out? Here are the words in the decision that made my heart sink:

The Lynn police department received multiple complaints about Murrell’s no-mask policy. The Lynn police investigated and corroborated these complaints with their own independent and documented
observations of Murrell’s practices at Liberty Tax. Members of the public also contacted the city’s board of health (board) to notify it of Murrell’s no-mask policy.

This practice (ratting, snitching, informing, whatever you want to call it) was the sort of thing that the bien pensant still seemed to care about as late as 2019, judging by this article in the Atlantic. But no longer.

The habit of informing on one another is now suitably engrained, but the mask mandates themselves have gone, at least for now.

And because the mandates are no more, the SJC decided that the issues were moot. But, in a somewhat encouraging response to Ms. Murrell’s argument that the issues remain alive because the State can reimpose a mask mandate whenever it feels like, the SJC implied (albeit ambiguously) that the widespread availability of treatments makes new mask mandates less likely. In addition, the court cited the SCOTUS decision on the OSHA vaccine-or-mask mandate, stating with sub-optimal clarity:

In light of this decision, we cannot say with any degree of certainty that our understanding of OSHA’s authority to issue general COVID-19 regulations, and the interrelated issue of preemption, would be the same if the Governor were to issue another
Statewide mandate.

For my post on that SCOTUS decision, click here.

In a glass half-full frame of mind, I think that the SJC was signaling that in reviewing any new mask mandates, it would take into account the changed jurisprudential landscape and would determine whether the facts (remember those?) really justify the mandates. Or perhaps I am getting carried away with hope.

Captain Albert Brox and religious liberty

March 1, 2022:- Today Attorney Patrick Daubert talked with me about the case of Captain Albert Brox v. Wood’s Hole, Martha’s Vineyard, and Nantucket Steamship Authority, which concerns religious liberty and medical-product mandates. Attorney Daubert represents employees of a State agency who are seeking religious exemptions from the mandate that their employer imposed at the beginning of the year. After the State court judge enjoined the authority from enforcing its mandate, the authority removed the case to federal court.

To watch and listen to the conversation, click here.

Photo by Jack Sharp on Unsplash

No Jab, No Job: Are you a public employee facing discrimination?

If you are a State or municipal employee facing religious discrimination, I would like to hear from you.

For example, if your employer requires you to receive a product known as a “COVID-19 vaccine” as a condition of your employment (the No Jab, No Job rule) and refuses your request for a religious exemption, you may have legal recourse. To set up a free 20-minute consult, use the contact form below.

Religious Freedom

As you may know, Massachusetts law (M.G.L. c. 151B) prohibits discrimination on the basis of religion. If your employer denied your request for a religious exemption from the No Jab, No Job rule, you may have a claim under that law. The place to file your claim is the Massachusetts Commission Against Discrimination (MCAD) and the filing deadline is 300 days after the discriminatory act.

This is a complicated and shifting area of law, so it is worth reading up on the subject even before talking to a lawyer. The New Civil Liberties Alliance has articles and press releases about its courtroom efforts against mandates, the Pacific Justice Institute provides free resources on protecting religious rights in the workplace, and the Christian Legal Aid Society offers a Religious Freedom Toolkit. You may also want to check out Attorney Aaron Siri’s site, Injecting Freedom.

Genetic Discrimination

In addition to the law against religious discrimination, Massachusetts also forbids discrimination on the basis of genetic information. Similarly, a federal statute called the Genetic Information Non-Discrimination Act (GINA, Title II) makes it unlawful for an employer

to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

This information page and Q&A show where the Equal Employment Opportunity Commission (EEOC) stands on GINA and vaccines. Bear in mind, these EEOC documents are not law (they are not statutes, regulations, or judicial decisions) but courts usually defer to the EEOC when the agency is interpreting the statutes in its purview. The EEOC documents are helpful insights for employees who wish to use GINA to challenge the No Jab, No Job rule.

Bioethics

Another helpful resource for employees is Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights, which the General Conference of UNESCO adopted in 2005.

The relevant paragraph of Article 6 provides that:

Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.

Although it does not have the force of law, the Declaration is something that judges may choose to take note of in some cases, e.g. the Second Circuit Court of Appeals decision in Abdullahi v. Pfizer, a case about Pfizer’s drug trials in Nigeria.

The principle of prior, free, informed consent should guide courts and adjudicatory bodies like the MCAD when considering No Jab, No Job cases.

Consult

To set up a consult, please use this form.

Court of Appeals tells District Court to reconsider denial of injunction in vaccine mandate case

February 18, 2022:- Yesterday the Fifth Circuit Court of Appeals sent a vaccine-mandate case back down to the District Court for the judge to re-consider the employees’ request for a preliminary injunction. The case is Sambrano, et al, v. United Airlines, Inc., United States District Court for the Northern District of Texas USDC 4:21-CV-1074.

The employees are suing the employer because the employer requires them to receive a COVID-19 vaccination. The District Court had denied the employees’ request for a preliminary injunction on the grounds that the employees could not show “irreparable injury,” but the Court of Appeals disagreed:

Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.

Check here for updates on this case.

Photo by Mika Baumeister on Unsplash

Discrimination and religious-freedom law update: Director of music ministries is a minister

July 29, 2020:- Today the Appeals Court reaffirmed that the employment relationship between a religious organization and its ministers is beyond the reach of the anti-discrimination laws. The court held that the “ministerial exemption” covered the job in question, namely director of music ministries, and that the trial judge was right to dismiss the plaintiff’s age- and gender-discrimination case against her former employer.

As the ruling points out, the purpose of the exemption is to prevent courts depriving a religious organization of control over “the selection of those who will personify its beliefs.”

You can read the decision in Menard v. Archdiocese of Boston, which proponents of freedom of conscience and religion will welcome, by clicking here.

group of people raise their hands on stadium
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