Judges’ Dissent Over Refusal to Rehear Religious Exemption Covid Vaccine Case Colors Ninth Circuit Decision

The United States Court of Appeals for the Ninth Circuit has generated a high level of dissent among its circuit judges by refusing to rehear the case of a 16-year-old San Diego high school student who is seeking a religious exemption from a mandated COVID-19 vaccination. Thomas More Society attorneys are representing the family of the Scripps Ranch High School junior who is being denied her First Amendment rights by the San Diego Unified School District’s COVID-19 vaccination mandate.

The Ninth Circuit’s majority refusal to rehear the appeal of a lower court’s denial of an injunction prohibiting religious discrimination at the hands of the public schools has drawn scathing dissent from eleven of the circuit’s judges.

Paul Jonna, partner at LiMandri & Jonna LLP and Thomas More Society Special Counsel, is heartened by the vigorous dissents, and believes they bode well for the prospects of the case that is currently waiting to be heard before the United State Supreme Court.

Jonna pointed to the primary dissent, written by Judge Patrick Bumatay, and joined by fellow Judges Consuelo Callahan, Sandra Ikuta, Ryan Nelson, Daniel Collins, Kenneth Lee, and Lawrence VanDyke, and accompanied by an agreement by Judge Diarmuid O’Scannlain.

Some of the key statements in the Bumatay dissent:

  • “Here we go again. When it comes to dealing with the COVID-19 crisis, the Supreme Court’s instructions have been clear, repeated, and insistent: no COVID19 restriction can disfavor religious practice.”
  • “…this while thousands of other unvaccinated students will continue to attend San Diego public schools under secular exemptions.”
  • “Today, our court failed [student] Jill Doe on several grounds. But our crucial error was applying the wrong legal framework to her claim…Tandon [Tandon v. Newsom, 9th Circuit, 2021] teaches us that COVID-19 regulations trigger strict scrutiny ‘whenever they treat any comparable secular activity more favorably than religious exercise.’ The [San Diego Unified School] District’s vaccine mandate not only has numerous comparable secular exemptions, but expressly prohibits exemptions for the religious. That alone should trigger strict scrutiny. Instead, our court rubberstamps the District’s mandate – opting for the anemic rational basis review.”

An additional dissent from Judges Daniel Bress and Bridget Bade stated:

  • “…when a school district, as here, allows secular exemptions to its vaccine mandate but disallows exemptions for students with sincerely held religious objections, we must examine whether the adverse treatment of ‘comparable’ activity by religious students is justified based on ‘the risks’ of the activity in connection with ‘the asserted government interest that justifies the regulation at issue.’ Here, there is no indication that the risks of spreading COVID-19 that the plaintiff poses as an unvaccinated student are any different than the risks posed by other unvaccinated students who are nonetheless allowed to attend school in person based on an approved secular exemption to the district’s vaccine mandate. That basic feature of this case required us to apply strict scrutiny, and there is little doubt that the district’s policy would fail that rigorous review.”

A dissent by Judge Danielle Forrest noted:

  • “I also agree that plaintiffs have raised ‘serious questions going to the merits’ of whether the San Diego Unified School District can satisfy strict scrutiny and, as such, they have shown that they are likely to suffer irreparable harm without a stay and that the ‘balance of hardships’ weighs in their favor.”

“It’s clear that the issue here is not the San Diego Unified School District’s requirement that students be vaccinated to attend classes in person,” emphasized Jonna. “The problem here is that the district prejudicially provides secular exemptions for over 85% of its students but is denying students any religious exemptions, despite their First Amendment right to receive one.”

Read the United States Court of Appeals for the Ninth Circuit Order denying the motion for reconsideration of John Doe, et al. v. San Diego Unified School District, et al. en banc, issued January 14, 2022, in which Judge Marsha Berzon and Judge Mark Bennett have voted to deny, while Judge Sandra Ikuta voted to grant the motion for reconsideration en banc, here.

Read more about the Thomas More Society’s quest to uphold the constitutionally guaranteed rights of this student, in the face of unwarranted religious discrimination by a public school entity here.

SOURCE Thomas More Society