A longtime Major League Baseball scout is suing the Washington Nationals organization for being fired after refusing to receive the COVID-19 vaccine because of religious objections. Bernard "Benny" Gallo was terminated in late August of 2021 after he was denied a religious exemption from the vaccine by the baseball organization. Gallo had worked for the Nationals for about 10 years and his firing caused him to lose his livelihood and his position as the Vice President of the Southern California Scouts Association. Earlier last week it was announced that Gallo would be suing the club stating that their actions violated the Free Exercise Clause of the First Amendment. It is his belief that the Nationals organization didn't fairly enforce its mandatory COVID-19 vaccination policy. As a result, he is seeking to have his firing reversed, his employment reinstated, back pay awarded, and restitution for the malicious deprivation of his rights. This resulted in the overall question: Is the denial of religious exemptions from vaccine mandates a violation of the Free Exercise Clause?
Gallo's attorney argued that the actions were especially discriminatory and unlawful especially because the Nationals continued to employ others, including another scout, who requested and received similar accommodations for medical reasons. As an alternative to getting vaccinated, Gallo was willing to wear a face mask when needed and get tested weekly. Both of these were the same practices that the Nationals had in place for over a year during the pandemic, both before and after vaccines had become available.
I find this to be a very interesting case because there have been many instances in the past where religious exemptions were accepted. For example, in Masterpiece Cakeshop v Colorado the Supreme Court granted an exemption for a baker who refused to create a cake for a same-sex wedding. Similarly, in Burwell v Hobby Lobby an exemption was given to a family-owned business that refused to provide emergency contraception because requiring them to do so would have violated the for-profit corporation's right to religious freedom. Additionally, in Holt v Hobbs the court unanimously decided that under the RLUIPA Muslim inmates should be granted a religious exemption to grow a short beard. Given the decisions in these cases and the many others that have granted religious exemptions to individuals, one might assume that it would be an easy decision to use these as precedent and allow Gallo to be granted an exemption as well. While I certainly understand and can support this argument, I do also believe that there are certain instances in which the refusal to allow religious exemptions from vaccines against infectious diseases. In fact, in 1905 the court ruled in Jacobson v Massachusetts to uphold a state's mandatory compulsory smallpox vaccination over the challenge of a pastor who alleged that it violated his religious rights. They chose to rule this way because they found the interest in protecting public health to be much more important.
This idea brings up the Sherbert test, created after the ruling in Sherbert v Verner, which allowed for the possibility of religiously-based discrimination from an otherwise valid law. The ruling was that a state may only restrict free exercise if it can justify a "compelling interest" and restrict in the least burdensome manner. There has been much debate in the past about what counts as compelling or not. However, in my opinion, there being able to prevent significant threats to other people's health should definitely be considered a compelling interest. The COVID-19 pandemic has already caused about a million deaths in the US and 6 million worldwide. Studies have shown that unvaccinated individuals endanger people who are immunosuppressed or cannot be vaccinated because of their age or other medical reasons. Having vaccine mandates in place helps to further the government's interest in saving lives, preventing serious illnesses, or preserving hospital capacity. Thus, creating a very strong argument for keeping mandates in place. Now that we've established a compelling interest in protecting public health, the question becomes whether or not it can be achieved through less restrictive means. In this case, because Gallo is willing to remain masked and receive weekly COVID tests, I do believe that this is an adequate alternative that wouldn't burden the free exercise of religion. If Gallo had been unwilling to do these things then I would argue that he was rightfully fired and shouldn't receive any form of restitution. It is because of the fact that he is offering a less restrictive option that will still support the overall goal of maintaining public health that I would side with Gallo. To conclude, I would argue that in some instances, like the case of Gallo v Washington Nationals Baseball Club, the denial of religious exemptions from vaccine mandates can be viewed as a violation of the Free Exercise Clause.
Sources:
https://www.fox5dc.com/news/major-league-baseball-scout-sues-washington-nationals-over-covid-vaccine-related-firing
https://theconversation.com/whats-the-law-on-vaccine-exemptions-a-religious-liberty-expert-explains-166934
https://columbialawreview.org/content/why-is-vaccination-different-a-comparative-analysis-of-religious-exemptions/
10 comments:
This is a great analysis that left me feeling very conflicted. I was mostly drawn to the fact that the Nationals continued to employ others who requested and received a similar accommodation. Contrary to this, I do believe that vaccine mandates have compelling state interest. Protecting the health and safety of everyone is undoubtedly important, but the Nationals lose all validity in their actions when they selectively choose who is given an exemption. Sherbert v. Verner showed us that the government can restrict free exercise if it proves compelling state interest, but there is no justification to discriminate against Gallo and not other employees. Finally, I believe his compliance with the masking policy would counteract any potential risk toward others. His willingness to comply with the masking policy is a reasonable alternative solution to this problem that protects his religious convictions.
I am also very conflicted. I think back to the military cases regarding the COVID-19 vaccine mandate and in that case, I agreed that there is definite compelling state interest to uphold health and safety, and that is also a special group of individuals. However, I think that this case is different because this is an organization. I think that Gallo should be allowed a religious exemption, if others before him have received the same exemption and he is willing to follow other protocol to mitigate the spread of COVID-19. Again, this shows the choice between Gallo having to choose between religious choices and his career. I think that although there is compelling state interest in having vaccine mandates, it is also tricky when people believe it goes against their religion. I guess we must figure out how we can balance the two.
Vaccination cases are so tricky because there is a compelling state interest but also a substantial burden on the individual requesting the exemption. I think the teams previous exemptions would warrant Gallo an exemption as well in order to remain neutral and not hostile towards religion. However, referring back to Roman Catholic Diocese v. Cuomo, I think that there is an overriding state interest of public health in vaccination cases. I think the Washington Nationals had a compelling interest to mandate vaccinations because they are a traveling sports team. Outbreaks in the NBA and NFL speak to the high risk of professional sports during COVID-19.
I completely agree with Emily's comment. I was very in between while reading the details of this case, however I think ultimately that the compelling state interest becomes less relevant when the Nationals started to give exemptions to some and not others. At first I did think that Gallo should not be given the exemption, but once the Nationals start giving out others, it creates a slippery slope and they lose all credibility. Thus, I think Gallo's free exercise rights were severely violated, especially because of the fact the the organization was treating different people differently. However, I think the question of getting vaccinated or going against your religious beliefs is still something many people face today, and that the middle ground between the two sides remains inconclusive.
This is quite an interesting case, another one that has surfaced a slippery slope between individual religious rights and a compelling state interest (protect the nation from infectious disease). A few things stuck out to me that absolutely should grant Gallo the religious exemption he is requesting. This mandate was implemented after he worked under the association for a decade. This is not something that members were aware of before joining which could have ultimately caused Gallo to select another group to be part of. Despite a compelling state interest, one should not be forced to chose between their job and livelihood and their religious convictions which is also a livelihood. This can be defended on the grounds of the mandate being implemented after his affiliation with Nationals, and that the organization has continued to employ others who have made requests for similar accommodations and such previous exemptions have been granted. Therefore, it would be unjustifiable for Gallo to not receive an exemption when others did on similar grounds, especially in regard to religion which can not be discriminated against. Cases in regard to vaccination mandates are difficult to evaluate, when the individuals occupation is not the military or a place where you knowingly sign away some degree of your religious rights.
There have been so many cases about religious exemptions and the COVID vaccine, and I have noticed in that majority of cases, the compelling state interest usually wins. Not to judge the validity of the belief, but I think that a lot of the organizations do not believe there are Christian religious that have vaccine-related obligations. If this were a medical-exemption, the organization would be more likely to allow it because the vaccine could lead to more health issues, which is what the vaccine is trying to avoid. I am curious if less restrictive means were offered for this case (like the plaintiff being forced to wear a mask or only work over Zoom). I wonder this because I do find it curious that others received exemptions for similar reasons. I side with the greater state interest because this has been the most consistent result across the nation.
As this is a private enterprise which directly benefits and depends on the health of its employees—namely the athletes the scout is working with—who can possibly have future long term health issues, this case will be more difficult in deciding on religious exemptions as opposed to military or other government employment where there must be more effort in appeasing religious beliefs. I believe Gallo will lose this case as opposed to other mandate-centered hearings given the compelling interest of the team to keep its employees healthy as it cannot function as a private enterprise with a work from home policy. Zoom is not an option for athletes. Title VII of the Civil Rights Act may indeed lead to Gallo's win, both as he was employed without the mandate being even conceived of and that Title VII requires employers to make reasonable accommodations for religious exemptions and rights, though the 'reasonable' does leave room for arguing that as an outbreak could shut down the team significantly that a mandate based off of belief and not medical necessity could not be considered reasonable.
The key difference in this case versus one in which the government is implementing a vaccine mandate is that the Nationals are a private organization, and therefore not entirely bound by the constitution. If they want to require their employees to get vaccinated, then that is their right to do so. As Mason said, they are an institution that depends on the health and wellbeing of their employees to make money, and if they see the need to compel their employees to get vaccinated, then they can. There is no right to be employed by the Nationals. If this man does not want to get the vaccine, then he can go find a job somewhere that does not require it. I do not think the previous exemptions matter either. If the Nationals can provide a valid reason as to why Gallo was let go and the other people were not, then I see no reason as to why the government can question that decision.
I am conflicted about this case. In some ways, I feel that the scout's religious freedom is being violated because other exceptions have been made in the past. Additionally, the appellant is a scout and is not a baseball player on the team. However, I also see the argument that the Nationals are a private organization. As a result, they have the right to make and enforce rules as they see fit. Ultimately, if I had to choose, I would say that the Nationals are fair to enforce this rule and that the man could find employment at a different organization.
I think this is a tricky case because the scout was not necessarily on the baseball team and the fact the Nationals are a private baseball team not run by the state. I think at the time of the case, mandating the vaccine was not in discriminatory means but rather for the health and well being of their organization. Also, we are talking about a baseball team, that attracts many people in which the vaccine is very useful and provides a compelling state interest for employees to be vaccinated.
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