Christian groups appeal to Justice Kavanaugh to intervene in OSHA vaccine mandate case

"Few are aware that, in addition to the president's OSHA mandate being clearly lawless, its takeover of American companies also includes all religious organizations of over 100 employees," said the Liberty Institute's Kelly Shackelford.

Updated: December 21, 2021 - 10:34pm

The Facts Inside Our Reporter’s Notebook

Several Christian organizations have appealed directly to the U.S. Supreme Court to issue a stay prohibiting the U.S. Department of Labor from enforcing a vaccine mandate that they argue violates the First Amendment and the Religious Freedom Restoration Act of 1993.

The Texas-based First Liberty Institute filed an emergency petition on behalf of its clients, Word of God Fellowship, Inc. D/B/A Daystar Television Network; the American Family Association, Inc.; and Answers in Genesis, Inc. 

The 179-page request asks Justice Brett Kavanaugh, who oversees the Sixth Circuit, to issue a stay to prevent the Occupational Safety and Health Administration from implementing an emergency temporary standard rule mandating that employers with over 100 employees require their workers to get the COVID-19 shots or undergo testing and other requirements, or be fined. 

The ministries requested a stay pending disposition of their petitions for review before the U.S. Court of Appeals for the Sixth Circuit. The ministries sued OSHA, the U.S. Department of Labor and their respective secretaries, arguing the OSHA rule violates religious freedom protected by law because it allows for no religious exemptions or accommodations.

"Each organization sincerely believes that its religion demands that it not test the beliefs or conscience of its employees by requiring them to obtain any of the COVID-19 vaccines or to report their beliefs about doing so," the complaint states. 

They also object to the OSHA mandate that employers make masks compulsory for employees who refuse the COVID-19 jabs on religious grounds. "Masking the unvaccinated will mark all employees who object to vaccination, identifying them to employees with competing views, and open the door to division within the organizations," they argue, citing multiple references to scripture, which they say they must follow above government mandates. 

Instead, they've implemented a mask-optional policy to protect employee confidentiality, respect their employees' religious and medical decisions, and "promote peace and unity among staff, all of which these organizations feel called by God to provide in the workplace," according to the complaint. 

In other lawsuits filed by multiple states and parties against Biden vaccine mandates impacting federal workers, private employers and healthcare workers, courts held the mandates violated the Administrative Procedures Act and/or were unconstitutional. Courts in Missouri, Louisiana and Texas issued stays prohibiting the mandates from being implemented in their respective districts. 

While the Fifth Circuit Court of Appeals blocked the private employer mandate in early November, the Sixth Circuit Court of Appeals on Dec. 17 dissolved that stay. 

Expressing its pleasure with the Sixth Circuit ruling, OSHA said it would "once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace."

However, in light of ongoing challenges to the rule and "to account for any uncertainty created by the stay," the agency said it "was exercising enforcement discretion with respect to the compliance dates of the ETS." In order to give employers "sufficient time to come into compliance" with the rule, OSHA said it wouldn't issue citations for noncompliance with the ETS requirements before Jan. 10 and wouldn't issue citations for noncompliance with the testing requirements before Feb. 9 "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard." The agency promised to "work closely with the regulated community to provide compliance assistance.”

"The Sixth Circuit panel's decision to end the stay is outrageous and endangers the freedom of all Americans," Kelly Shackelford, president, CEO, and chief counsel at First Liberty Institute, said in a statement

"No one should be fired because of their religious beliefs," which he says the Sixth Circuit made easier to do in its "embarrassingly wrong" ruling.

"Few are aware that, in addition to the President's OSHA mandate being clearly lawless, its takeover of American companies also includes all religious organizations of over 100 employees," Shackelford added. "Our clients simply cannot comply with a government mandate that forces them to violate the conscience rights of their employees. The Supreme Court must act, or there will be a Constitutional crisis."

The Supreme Court is expected to hear several consolidated lawsuits against the OSHA mandate since different circuit courts have issued conflicting rulings. When circuit courts are at odds, the high court is compelled by law to weigh in on the matter.

However, in unrelated cases in which plaintiffs petitioned the Supreme Court to issue stays preventing state vaccine mandates from going into effect, the court declined to intervene. 

Last week, the Supreme Court refused to block a New York state COVID-19 vaccine mandate imposed on health care workers. 

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch said in their dissent that they would have supported temporarily halting its enforcement.

The court also declined to issue a stay on behalf of Maine healthcare workers. 

Liberty Counsel, the nonprofit religious freedom organization that represents the Maine healthcare workers, argues all of the COVID-19 vaccine mandates are unconstitutional. The public interest law firm also represents others who sued over state-issued mandates, as well as active-duty military and federal employees who sued over federal mandates.

Liberty Counsel Founder and Chairman Mat Staver maintains that President Biden "has no authority to issue unlawful shot mandates to any person in America."

After the rulings of the circuit courts in Missouri and Louisiana, Staver said, "It's a matter of time before more courts rule against this administration's agenda to force people to choose between their livelihood and religious beliefs and injecting an experimental drug into their bodies."