What wall of separation?

October 11, 2022:- This post is about the Massachusetts Public Records Law but also about something even more important. What could be even more important than the Massachusetts Public Records Law? I hear readers asking. The answer: Whether it should be (a) you and your conscience or (b) the government that gets to define your beliefs as religious or non-religious.

What sort of beliefs can be religious, or philosophical, or both?

Here is an example. I believe (among other things) that there is such a thing as evil, by which I mean the innate human desire to obtain pleasure by causing suffering. I am a Christian, so perhaps I should call this a religious belief. But I believed the same thing when I was not a Christian. I did not believe in the survival of the individual human personality beyond death and I did not believe in God, but I certainly believed in evil. Does that make the belief philosophical instead of religious?

How to go about putting my belief in the existence of evil into one of those two categories, as if they were mutually exclusive, continues to puzzle me, even though the belief in question is my own and I have spent considerable time pondering the subject. How much harder, then, to neatly taxonomize someone else’s beliefs about the nature and purpose of life; right and wrong; sin, forgiveness, and redemption. What an extraordinarily ambitious undertaking. But State government has decided that it is up to the task.

No Jab, No Job

Governor Baker’s No Jab, No Job order required State employees to be injected with products advertised as “COVID-19 vaccines.” The order allowed public employees to request exemptions from the mandate on the basis of their religious beliefs. When approximately 600 employees of the Department of Corrections requested religious exemptions, I gather that nearly all of them received letters telling them that they had “articulated a philosophical viewpoint not a religious belief.”

The difference between philosophy and religion is not obvious. As the United States District Court for the District of Massachusetts stated:

Few beliefs are entirely isolated from a belief system, and in any event there are not always bright lines that would readily permit beliefs to be sorted into the categories of “religious” and “non-religious.”

Together Emps. v. Mass Gen. Brigham Inc., No. CV 21-11686-FDS, (D. Mass. Nov. 10, 2021), aff’d, No. 21-1909, 2022 WL 1236952 (1st Cir. Apr. 27, 2022).

Never mind not always; are there ever “bright lines” between beliefs that are religious and those that are philosophical? Distinguishing the one from the other requires some grounding in metaphysics and the opportunity to discuss the matter at length and in depth with the individual whose beliefs are at issue.

Because the nature of ideas is complex, classifying any given statement of belief in a binary manner as either (a) philosophical or (b) religious presents a challenge. But with enough time and skill I suppose a reasonably competent professor of philosophy or theology could pull it off. Classifying approximately 600 such statements from employees of the Department of Corrections in just a few weeks would present more of a challenge, I should think. Just how did the folks in HR manage it?

To find out, I submitted a public records request in which I asked for:

any and all public records created in the period March 10, 2020, through the date of the response reflecting or embodying the standards the Department of Correction relied on or used in any way in determining whether requests by employees for religious exemption from Executive Order 595 (EO 595) articulated a philosophical viewpoint as opposed to a religious belief.

I added this explanatory note: “I am requesting documents that show the criteria that the Department used in assessing the nature of the beliefs of those employees who requested religious exemption from the EO 595 vaccine mandate, in particular the documents the Department employed so as to: (1) define religious beliefs; (2) differentiate between religious beliefs and philosophical viewpoints; and (3) assess whether any given employee had articulated a philosophical viewpoint vis-à-vis a religious belief.”

The request, unlike the subject matter, was simple. 

First Response

On June 8, 2022, the first response from the Department arrived. It stated:

For the following reasons, the response to your request for records will require more than ten (10) days. The Department needs to search numerous records, segregate them, and redact non-public information pursuant to G.L. c. 4, § 7, cl. 26. Additionally, the Department will calculate charges for production, if any, and send an estimate to you. It is anticipated that the production of the requested records will be completed within eight (8) weeks. If the records are not produced within eight (8) weeks, you will be contacted in writing to advise you about the status of your request.

That same day I replied with a short letter stating that the response fell short of what the Public Records Law requires (the law gives the record-holder 15 days, not 8 weeks). But then the Department’s lawyer asked me to wait, so over the summer I did just that; I waited. But nothing arrived.

In September, I sent a couple of reminders that elicited no replies. Then I submitted a second public records request, identical to the first. This time I received a different response.

Second Response

This time, instead of saying that it would take 8 weeks to collate the records, the Department said that I would not be allowed to see the records at all. Why not? Because an individual whom the Department referred to as my client (he is not) had made a similar request and has an ongoing case against the Department.  Here is the relevant quote (I have redacted the name of my non-client):

The Department understands that your client, [NAME REDACTED], requested the same documents from the Department and the Massachusetts Human Resources Division. General Counsel Michele Heffernan responded for HRD [Human Resources Division] and the Department as follows:

Records of the names of those individuals involved with the exemption process, training materials and criteria are not public record as they are part of the deliberative process undertaken by Executive Department agencies. Pursuant to M.G.L. c. 4, § 7, cl. 26 (d), records that relate to interagency or intra-agency memoranda, work products or letters relating to policy positions being developed by the agency may be withheld. Records related to policy deliberations are protected from disclosure. DaRosa v. New Bedford, 471 Mass. 446 (2015). In addition, your client has litigation pending against the Commonwealth, as such, a records request is not the appropriate vehicle information that may be subject to a discovery request.

Mr. [NAME REDACTED] appealed this response. The Supervisor of Public Records responded and decided to close the appeal.

The Department says that it can keep these records secret because they fall within one of the 20-plus exemptions to the Public Records Law’s disclosure requirements that the Legislature carved out, namely the deliberative-process exemption, in that the documents “relate to policy positions being developed by” the Department.

I have appealed this decision to the Supervisor of Records, and will update this post when I learn the outcome.

In the meantime, I remind readers what it is, exactly, that I am asking to see:  Documents showing the standards that the Department of Correction used in determining whether employees had articulated a philosophical viewpoint as opposed to a religious belief.

There must have been some kind of rubric, a conceptual sieve for sorting the religious wheat from the philosophical chaff; passages from the Summa Theologica by St. Thomas Aquinas perhaps, or from the Kabbalah or the Hadith. The HR folks cannot have just pigeonholed all those individuals’ beliefs without reference to some articulated standards. Can they?

If the Department has any such documents, they do not want to disclose them and they claim that they can keep these documents secret because they relate to “policy positions.” That is the exemption set forth in General Laws chapter 4, section 7, clause 26 (d).

The Department legal team had more than 20 statutory exemptions to choose from, and this is the one they picked. It is a curious choice. After all, whether a belief is religious as opposed to philosophical is surely a matter of religion and philosophy, not of policy.

If government officials honestly think that religion is a policy matter, we all need to step back and take a breath.

Why this matters

Deciding whether our beliefs are religious is not something that government should do. The phrase “wall of separation between Church and State” appears nowhere in the free-exercise and establishment clauses of First Amendment to the Constitution of the United States, but it helps remind us of the reason for those clauses. We do not want government officials regulating our religious beliefs and practices.

By way of contrast, in ancient Rome there was a public official whose very job was to regulate religious beliefs and practices, and his title was Pontifex Maximus. After the decline of the republic, the emperors adopted the title and the role. The emperors became the arbiters of religion, deciding which religious beliefs and practices were legal and which were not.

The French dictator, Napoleon Bonaparte, rather envied the powers of the caesars. At his coronation, he wore a laurel wreath like the Roman emperors used to wear and he tended to emulate their approach to governing and propagandizing, commissioning paintings and sculptures of himself in classical Roman outfits and poses. To illustrate, here’s a statue of him playing dress-up.

Photo by author

The caesars and Napoleon Bonaparte were dictators. It is a sign of the times that I feel compelled to point out that they are not good role models for our public employees. This should go without saying. But nowadays in the American republic, governors and human resource managers are unabashedly assuming the role of Pontifex Maximus, arrogating to themselves powers that they should not wield, the power to decide what is, and what is not, a religious belief.

And they seem to have no shame in describing what they are doing as “developing policy positions.”

Conclusion

The Supervisor of Records is reviewing my appeal. If and when I obtain the public records that show how the Department of Correction was able to take human beliefs about the nature of existence and the meaning of life, and pour them into two distinct buckets, one labeled Religious and the other Philosophical, you will be able to see those documents here.

P.S.

October 24, 2022:- Today the Supervisor of Records issued an order:

[T]he Department is ordered to provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay.

After inspecting the sample, the Supervisor will issue an opinion as to whether the records are (a) public, or (b) exempt.

Of course, this all depends on the documents actually existing.

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

Hospital settles with flu vaccine refuseniks

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

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Peter Vickery, Esq.