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Ninth Circuit Denies En Banc Hearing in Vaccination Case
10 Dissenters Say That Allowing Secular Exemptions but Not Religious Ones Requires Strict Scrutiny; They Maintain That Heed Is Not Being Taken of U.S. Supreme Court’s April 9 Decision
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday denied a rehearing en banc of a panel’s 2-1 decision not to stay, pending appeal, a school district’s edict that students be vaccinated against COVID-19 by Jan. 24 or be barred from in-person attendance, with 10 dissenting judges arguing that the decision runs afoul of the U.S. Supreme Court’s April 9 proclamation that strict scrutiny be applied to mandates that deny religious exemptions.
That high court decision came in Tandon v. Newsom. The 5-4 majority held that the Ninth Circuit erred in not enjoining, pending appeal, restrictions on religious gatherings, saying that “California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny.”
The Tandon majority observed in a per curium opinion:
“This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COV1D restrictions on religious exercise.”
Sixth Rejection Foreseen
In one of three dissents by voting Ninth Circuit judges on Friday, Judge Patrick Bumatay remarked:
“With this case, our court is gunning for a sixth.”
Strict scrutiny must be applied, he maintained, not “anemic rational basis review,” and under strict scrutiny, the government has an “exceptionally demanding burden” which, the judge asserted, cannot be met in the present case.
Allowing for medical exemptions and not religious ones, 16-year-old Jill Doe and her parents contend in challenging the San Diego Unified School District mandate, violates the First Amendment’s Free-Exercise Clause.
10 Dissenters
Of the 10 judges dissenting from the denial of en banc review, eight were appointed by President Donald Trump and two, Consuelo M. Callahan and Sandra S. Ikuta, by President George W. Bush. An opinion concurring in the denial was signed by Judge Marsha S. Berzon, an appointee of President Bill Clinton, and Judge Mark J. Bennett, a Trump appointee.
Bumatay—joined by Judges Callahan, Ikuta, Ryan D. Nelson, Daniel P. Collins, Kenneth Kiyul Lee, and Lawrence VanDyke—pointed out features of the mandate:
“• An unvaccinated student born on November 2 can attend in-person classes, while an unvaccinated religious student born on October 31 cannot.
“• An unvaccinated student with an allergy to the COVID-19 vaccine can attend in-person classes, while an unvaccinated religious student cannot.
“• An unvaccinated student who conditionally enrolls on campus can attend in- person classes, while an unvaccinated religious student cannot.
“• An unvaccinated student with an IEP can attend in-person classes, while an unvaccinated religious student cannot.”
Bumatay’s Conclusion
Bumatay commented:
“Taken together, the District’s patchwork of exemptions is inconsistent with its asserted interest in protecting the health of students from the COVID-19 pandemic. Given that the risks posed by unvaccinated students with secular exemptions are the same as those posed by unvaccinated religious students. the District’s failure to provide a religious exemption must be subject to strict scrutiny under Tandon.”
He went on to say:
“Today, our court allows the threat of COVID-19 to force Jill Doe and other San Diego students to violate their religious beliefs or face severe punishment. Expulsion from school. Kicked off sports teams. Isolated from teachers and classmates. But because our Constitution endures through times of crisis, Jill should not have to face these life-altering consequences.”
Concurring Opinion
Concurring in the denial of review, Berzon and Bennett—who signed the Nov. 28 panel opinion blocking the mandate only as to pregnant students—said:
“[T]his case is not Tandon. Tandon concerned an outright ban on group worship in private homes….SDUSD is not preventing Jill Doe from practicing her religion, as was the case in Tandon. Doe may worship as she pleases and may continue to abstain from vaccination for religious reasons. The SDUSD policy prevents her only from attending school in person and from participating in school sports—not from receiving a public education, participating in private sports leagues, or fully practicing her religion.”
The concurring judges made note that the pandemic “has claimed the lives of more than 840,000 Americans.”
Other Dissents
Judge Daniel Aaron Bress authored a separate dissent, joined in by Judge Bridget Shelton Bade, in which he remarked:
“There is, of course, an innate constitutional harm associated with treating persons with religious objections differently without justification. And as many parents of schoolchildren would by now attest, the difference between in-person and virtual learning is a significant one. Requiring the plaintiff to experience high school through a computer screen when her unvaccinated classmates can attend school in person based on secular exemptions is not the situation Tandon envisioned.”
Judge Danielle J. Forrest said in a separate dissent:
“I agree that strict scrutiny applies to the plaintiffs’ First Amendment challenge where the San Diego Unified School District’s COVID-19 vaccine mandate allows unvaccinated students who are otherwise subject to the mandate to continue attending school and school activities in-person for secular reasons but requires students who are unvaccinated for religious reasons to attend online classes and forgo school activities that cannot be performed remotely. See Tandon v. Newsom….”
Senior Judge Comments
Diarmuid F. O’Scannlain, as a senior judge, cannot vote on whether to grant rehearings en banc. Noting that under a general order he may nonetheless participate in discussions, he stated that he agrees with Bumatay.
He was appointed by President Ronald Reagan.
The case is Doe v. San Diego Unified School District, No. 21-56259.
San Diego Superior Court Judge John Meyer on Dec. 20 granted a petition for a writ of mandate challenging the district’s policy. The concurring opinion by Berzon and Bennett says “that ruling has been stayed pending appeal.”
Meyer apparently does not agree. The San Diego Union reported Jan. 11 that the judge had, the previous day, declared that his ruling is in effect because a stay was not obtained from Div. One of the Fourth District Court of Appeal.
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