21-2179; 21-2566 We The Patriots USA, Inc. v. Hochul; Dr. A. v. Hochul In the United States Court of Appeals For the Second Circuit ______________ August Term, 2021 (Argued: October 27, 2021 Decided: November 4, 2021) Docket No. 21-2179 ______________ WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ, MICHELLE SYNAKOWSKI, Plaintiffs-Appellants, –v.– KATHLEEN HOCHUL, HOWARD A. ZUCKER, M.D., Defendants-Appellees. ___________________________ Docket No. 21-2566 ______________ DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I., DR. J., NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S., NURSE S., PHYSICIAN LIAISON X., Plaintiffs-Appellees, –v.– KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY, DR. HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, IN HIS OFFICIAL CAPACITY, LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY, Defendants-Appellants. B e f o r e: WALKER, SACK, and CARNEY, Circuit Judges. ______________ In these two cases on appeal, district courts in New York State considered applications for preliminary injunctive relief that would restrain the State from enforcing its emergency rule requiring healthcare facilities to ensure that certain employees are vaccinated against COVID-19. See 10 N.Y.C.R.R. § 2.61 (Aug. 26, 2021) (“Section 2.61”). The State issued Section 2.61 in response to rapidly increasing infection rates related to the Delta variant of the virus. Section 2.61 contains an exemption for employees who are unable to be safely vaccinated due to pre-existing medical conditions, but does not contain an exemption for those who object to this vaccination on religious grounds. Plaintiffs, individual healthcare workers who object to receiving the vaccine because of their religious beliefs, as well as a membership organization, filed complaints and motions for preliminary injunctive relief, asserting that Section 2.61 violates their rights under the First Amendment, the Fourteenth Amendment, and the Supremacy Clause. In We The Patriots, filed in the U.S. District Court for the Eastern District of New York, the district court (Kuntz, J.) denied the motion without opinion. In Dr. A., filed in the U.S. District Court for the Northern District of New York, the district court (Hurd, J.) granted the motion, deciding that Plaintiffs had established that Section 2.61 was likely neither neutral towards religion nor generally applicable, triggering strict scrutiny under the First Amendment’s Free Exercise Clause, and that the State had failed to establish that Section 2.61 was likely narrowly tailored to serve a compelling government interest under strict scrutiny review. The district court in Dr. A. also concluded that Section 2.61 was likely preempted by Title VII’s protection for employees who require religious accommodations, and thus ran afoul of the Supremacy Clause. On appeal, focusing on the requirements for the grant of a preliminary injunction, we conclude that Plaintiffs in both cases have failed to establish a likelihood 2 of success on any of their claims, and thus the Dr. A. district court’s issuance of a preliminary injunction was in error. As to Plaintiffs’ Free …
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