A group of San Francisco city workers have won a reprieve in their fight against the city's Covid shot mandate, after a federal appeals court said both city officials and a federal judge all but brushed aside their religious beliefs concerning the Covid shot and may have violated their civil rights by forcing them to choose between getting the shot and keeping their jobs.
On Jan. 30, a three-judge panel of the U.S. Ninth Circuit Court of Appeals reversed the decision of Oakland U.S. District Judge Jeffrey S. White, saying White was wrong to deny more than 125 San Francisco city workers their request for a preliminary injunction blocking the city from enforcing its Covid vaccine mandate against them over their religious objections.
The appellate decision was issued as an unpublished order. It was signed by Ninth Circuit Judges Consuelo M. Callahan and Patrick J. Bumatay, joined by U.S. District Judge Susan R. Bolton, of the District of Arizona, sitting on the panel by special designation.
U.S. District Judge Jeffrey S. White
| presidentialprayerteam.org
In the ruling, the appellate judges said they believed the record reflects that San Francisco City Hall ever "seriously considered any religious accommodation," potentially in violation of federal civil rights laws, despite the city having the ability to grant such accommodations without any "undue hardship."
And the judges said they believed Judge White improperly also was too quick to reject the workers' religious objections to the Covid shot mandate in finding the workers' loss of jobs and careers from the mandate did not amount to "irreparable harm."
The workers' "coerced decision between their faith and their livelihood imposed emotional damage which cannot now be fully undone," the appellate judges wrote. "In the analogous First Amendment context, the Supreme Court has recognized that the loss of protected religious freedoms, 'for even minimal periods of time, unquestionably constitutes irreparable injury.'
"Such a crisis of conscience is evidenced here as Appellants specifically described being 'distraught' and 'depressed' due to the resulting stigma of having their 'career[s] . . . pulled out from underneath' them. This is unsurprising given that they had dedicated decades of their careers to CCSF (the City and County of San Francisco) and found fulfilment in their chosen professions of serving disadvantaged members of society.
"Thus, CCSF’s finding that Appellants’ religious beliefs were insufficient to warrant any accommodations can only be described as a 'dignitary affront.'
"... Furthermore, as CCSF’s vaccine requirement is no longer in place, there is no burden on CCSF for (the workers') noncompliance. Meanwhile, (the workers) remain constructively terminated - forced to choose between their religious beliefs and their careers."
The case first landed in federal court in 2022, when attorneys from the nonprofit constitutional rights advocacy group Institute for Justice filed suit on behalf of two named plaintiffs, San Francisco city employees Selina Keene and Melody Fountila.
They were later joined in the action by 125 fellow San Francisco city workers.
In the lawsuit, the plaintiffs challenged the city's mandate that all of San Francisco's 25,000 city workers receive a Covid shot as condition of keeping their jobs.
The city reportedly based that mandate on the belief that Covid shots represented the best way to control the spread of Covid-19 in its workforce.
The plaintiff workers, however, were among potentially hundreds of city workers who objected to the mandate. According to court documents, they contended they should be free to refuse the order because receiving the Covid vaccines would violate their religious beliefs and their conscience.
Specifically, they asserted they believed the evidence showed the injections were developed using stem cells obtained from aborted human fetuses. Since they opposed abortion on religious grounds, the plaintiffs said forcing them to choose between getting the shot or keeping their jobs amounted to religious discrimination under federal civil rights laws.
Further, the workers argued the Covid shots don't even do what the city and other public health professionals claimed, as evidence has shown the treatments only are shown to reduce the severity of individual Covid symptoms, and do not prevent infection or transmission of the coronavirus that causes Covid.
Rather, they argued the city's mandate ignored studies showing that naturally-acquired immunity from past infections presented the same or better protection against future infection and transmission and reduction of symptoms from future bouts of Covid.
So, the plaintiffs further argued the mandate is also arbitrary and unreasonable, as it requires workers to receive a medical treatment as a condition of employment, when the treatment does little to actually accomplish the city's stated goals.
However, in 2022, Judge White rejected their request for an injunction blocking the city from enforcing the mandate and allowing them to keep their jobs.
In his ruling, White blasted the plaintiffs for arguing against "scientific consensus" as it stood at the time. He said the city workers had no legal basis to sue, pointing to the U.S. Supreme Court's 1905 decision in Jacobson v Massachusetts. White said that ruling established "well-settled law allowing for compulsory vaccination as a condition of employment."
And the judge scoffed at their religious concerns over the origins of the Covid shots.
"Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine," White wrote in his 2022 ruling. "There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.
"Feeling passionately about something or having a specific personal preference does not merit the status of a sincere religious belief. Personal preferences are not beliefs protected by (federal civil rights laws,)" Judge White wrote.
And the judge said losing their jobs and their careers for refusing the vaccination order did not amount to "irreparable harm." Judge White said their risk of losing their jobs and livelihoods did not measure up to the city's alleged interest in compelling Covid shots in the name of protecting public health.
After the plaintiffs amended their complaint in 2023, Judge White again rejected their request for an injunction.
In an order issued in February 2024, White said he continued to believe the city had the constitutional authority to fire workers who objected to their Covid shot mandate in the name of public health.
"While Plaintiffs here may remain unvaccinated at their own risk and in accordance with their religious convictions, the balance of equities and the public interest do not require the City to allow its employees to spread that risk to their workplace or to the communities they serve," White wrote in the February 2024 order.
The plaintiffs appealed that ruling, saying Judge White improperly brushed aside their religious beliefs in upholding the mandate.
The appellate judges agreed, and sent the case back to Judge White with an order to issue the requested preliminary injunction while the workers continue with their lawsuit.
The plaintiffs continue to seek unspecified actual and compensatory damages, including back pay, front pay and other compensation; and restoration of their pensions, insurance and other benefits, plus attorney fees.
Judge White was appointed to the federal court by former President George W. Bush.
Judge Callahan was also appointed by Bush. Bumatay was appointed during the first term of President Donald Trump.
Bolton was appointed by former President Bill Clinton.
Plaintiffs are represented in the action against the city of San Francisco by attorneys Russell Davis and Kevin Snider, of the Pacific Justice Institute, of San Francisco and Sacramento.
The decision in favor of the city workers comes amid a growing number of victories in court for public workers who were fired or otherwise faced "adverse employment actions" for objecting on religious grounds to the Covid shot mandate imposed by their taxpayer-funded employers.
In October 2024, for instance, a jury ordered the Bay Area Rapid Transit District to pay $7.8 million to six BART workers who were fired when BART refused their requests for religious exemptions to its Covid shot mandate. A judge in December then refused BART's request to toss out that verdict.
The Pacific Justice Institute also represented the BART workers in that action.