As Gov. Kate Brown’s vaccine mandate for hundreds of thousands of state employees, health care workers and teachers begins to take effect, several early legal challenges seeking to block the statewide directive have failed to sway judges.

A pair of rulings earlier this month by Oregon courts rejected calls to block the mandate. In both cases, workers claimed their rights were being violated — meaning state workers who don’t get vaccinated will be placed on administrative leave, forced to work remotely in instances that allow for it, or simply let go from their positions.

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But the legal fight isn’t over.

Experts say that lawsuits against vaccine mandates and rulings in other states such as Maine and New York provide a glimpse into what could be the future of challenges here in Oregon as appeals nationwide get closer to reaching the U.S. Supreme Court.

That could see Oregon plaintiffs shifting their focus to the question of religious exemptions.

Oregon Supreme Court building, May 19, 2021.

Oregon Supreme Court building, May 19, 2021.

Kristyna Wentz-Graff / OPB

Unlikely to succeed

The eight or so lawsuits filed so far against Brown and the Oregon Health Authority run the gamut of legal theories as to why the mandate violates workers’ rights, but a majority focus on violations of state law — questions of how much power Oregon’s governor has — as opposed to constitutional protections.

In two lawsuits ruled upon in the first week of October — one filed by a group of health care workers, the other in Jefferson County by a coalition of state police officers — the courts found that petitioners had “little-to-no likelihood of success” in their claims.

Both were filed by Portland attorney Dan Thenell, who did not respond to OPB’s request for a comment.

Thenell’s clients asked the courts to intervene ahead of the governor’s original Oct. 18 deadline to stay the mandate, arguing that Brown and the OHA overstepped their authority and violated the separation of powers doctrine in Oregon’s constitution.

They also claimed the mandate was adopted without proper consideration under the state’s rulemaking process, and violates state law saying immunization cannot be required as a condition of work unless enacted by law, which only the Oregon Legislature has the power to do.

In one ruling, Jefferson County Senior Judge and former Oregon Supreme Court Justice Jack Landau characterized that argument as “unavailing.”

“In this case, immunization is in fact otherwise required by state law. It is required by Executive Order 21-29, which the legislature has said has the effect of state law,” Landau wrote.

Jim Oleske, a professor at Lewis & Clark Law School who specializes in constitutional law, labor and religion, says the focus in Oregon will likely now turn to legal challenges to vaccine mandates centered around religious freedom

“Cases like that are being litigated around the country right now,” said Oleske, a former lawyer in the Obama administration and with the National Labor Relations Board. “There are recent decisions in Maine and New York actually coming to different conclusions.”

In New York, a federal court ruled just last week that state health officials must allow employers to grant religious exceptions.

Meanwhile, a federal judge in Maine said the state does not have to allow healthcare workers the ability to opt out of mandated vaccinations on religious grounds.

Another case earlier this year was dismissed by a judge in Texas when 117 employees of Houston Methodist Hospital sued over the system’s vaccine mandate.

Similar challenges have been filed against a mandate enacted by Washington Gov. Jay Inslee as well.

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The conflicting rulings are expected to provide legal challenges in Oregon with new theories to test should arguments based on state statute and executive authority fail.

Oleske said that the other avenue for religious exemption challenges would be within employment law at both the state and federal level, where employers are required to reasonably accommodate religious practices of their employees.

According to Oleske, that requirement is fairly “soft,” meaning that employers can in fact decline to make a religious accommodation so long as they can show that granting it would impose a more than negligible risk to public safety.

“Given the health consequences, it’s likely employers will be able to meet that standard,” he said.

Headed for the high court?

Oleske also said that there are questions around the sincerity of claims for religious exemptions.

The legal threshold is that a person claiming a religious exemption must prove they hold a “sincere” religious belief, and there is suspicion among the legal community that some arguments in the current environment are political claims being repackaged as religious ones.

“Those could get rejected on sincerity grounds,” Oleske said.

Discerning which claims are sincere and which are not is tricky. Oleske said that the government doesn’t typically contest religious exemptions on the grounds of sincerity.

But in these specific cases over exemptions to vaccine mandates, courts are seeing those claims contested.

“I think the reason is because so many people are making the religious exemption claims, so many people threaten the ability to get to herd immunity,” he said. “In those circumstances, I think states and employers are sort of finding themselves with the necessity of looking closer at these claims and asking if they’re sincere in terms of where do religions stand.”

According to research compiled by Vanderbilt University Medical Center’s Occupation Health Health Clinic, most religions have no prohibition on vaccinations. That includes a majority of Christian denominations such as Catholicism, Eastern Orthodox, Baptist, Lutheran and Methodist churches.

Some Christian leaders, including Pope Francis, have called on members of their church to get vaccinated and refused to sign off on doctrines supporting religious exemptions.

But according to Oleske, religious exemptions are allowed to be idiosyncratic, meaning they do not have to adhere to what is commonly held by one’s church or religion to be claimed.

He says he expects people suing on these grounds, whether in Oregon or elsewhere, will likely seek to get before the U.S. Supreme Court and its conservative majority. And Oregon’s well-known and high-profile history in the arena of religious exemptions could actually play a role in how these types of cases move forward.

Interpreting religious liberty

In the 1990 the U.S. Supreme Court case Employment Division, Dept. of Human Resources of Oregon v. Smith, the court famously ruled that the state could deny unemployment benefits for a person fired for violating the state ban on peyote despite it being used as part of religious ceremonies by members of the Native American Church.

Justices concluded that although states have the power to accommodate otherwise illegal acts performed while practicing one’s religion, they’re not required to do that.

Harrison Latto, a private practice attorney in Portland, said that the 1990 case could be a factor in how courts discern religious exemptions over vaccine mandates now.

“If users of peyote as part of a religious observance lost their case, I can’t see anyone prevailing in Oregon on a claim requesting religious exemption to any vaccine mandate the Governor has ordered,” he said.

Oleske said the Supreme Court has reaffirmed that 1990 decision a few times in recent years, but more and more justices have signaled an appetite to take another look at the case and go back to an earlier ruling stating that the U.S. Constitution does provide a right to religious exemptions.

The Supreme Court has become more conservative in recent years, and inclined to side with people claiming religious exemptions.

“Justice Amy Coney Barrett and Justice Brett Kavanaugh, in a case this past spring, seemed to be staking out a middle ground that maybe there’s some right to religious exemption, but not as broad of a right as their colleagues, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, are indicating there might be,” Oleske said. “That’s why this is really in a state of flux right now.”

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