A Righteous Concurrence
5th Circuit refuses to reverse their excellent decision authorizing district court to issue injunctive relief against United Airline's discriminatory vaccine mandate. A great concurrence by Judge Ho worthy of reading.
James C. Ho, Circuit Judge, concurring in denial of rehearing en banc:
Imagine that your employer suddenly declares that he finds one of your religious beliefs offensive. It could be your view on abortion, or marriage, or sexuality, or gender, or any number of other religious tenets. Your view has no economic impact whatsoever on the company. But it offends the sensibilities of the executives who populate the C-suite.
So the company puts you on unpaid leave for an indefinite period of time. And the only way you can reclaim your job is to abandon your religious convictions—and to do so irreversibly.
Imagine further that you love your God—and you also love your family, who counts on you and your livelihood to survive.
Finally, imagine that, if you can’t get preliminary injunctive relief, you’ll have no choice but to sacrifice your faith, in order to avoid sacrificing your family.
Now ask yourself this question: What measure of damages would make you whole? Put another way: For how much would you sell your soul?
If the very thought of this question vexes or offends you, you’re not alone. For millions of Americans, you’d be hard-pressed to come up with a more obvious and compelling example of an incalculable, irreparable injury.
As the district court noted, the facts of this case are “disturb[ing].” Sambrano v. United Airlines, Inc., 570 F. Supp. 3d 409, 420 (N.D. Tex. 2021).
United Airlines ordered all of its employees to obtain a COVID-19 vaccine—notwithstanding the fact that some of them have sincere religious objections that the vaccines were developed using aborted fetal issue.
Notably, United chose not to fire employees who refused the vaccine, but instead put them on indefinite unpaid leave, and made clear that the only way they could return to their jobs was to be vaccinated. It did so for one simple reason: to coerce its employees into violating their religious beliefs— and what’s worse, to do so irrevocably and permanently.
There is no legitimate business justification for this action. It could not have been customer or employee safety, as United suggests. To the contrary, “[t]he record shows, as United has often touted, that the risk of catching COVID on its airplanes is infinitesimally low, with or without a vaccine. . . . ome 99% of United’s employees are already vaccinated.” Oral Arg. at 7:48–8:04. Moreover, “there’s evidence . . . below showing that United’s CEO deliberately set out to coerce employees with religious scruples against the vaccine into violating those beliefs. And when you put all those facts together, it could not have been for purposes of safety. . . . [T]hat was pretextual.” Id. at 8:04–8:31. As Plaintiffs contend, the real reason for the vaccine mandate and indefinite unpaid leave policy is “virtue signaling” and “currying political favor.” Id. at 8:35–8:39.
So the plaintiffs filed suit under Title VII of the 1964 Civil Rights Act, among other things, and sought preliminary injunctive relief. The district court denied such relief for one simple reason—lack of irreparable injury.
I disagree with that holding, and I wrote as much in my dissent at the motions stage in this appeal. See Sambrano v. United Airlines, Inc., 19 F.4th 839, 839 (5th Cir. 2021) (Ho, J., dissenting). So I was pleased when the panel majority at the merits stage of this appeal reached the same conclusion that I did—that being pressured into violating one’s faith is an obvious irreparable injury. See Sambrano v. United Airlines, Inc., 2022 WL 486610 (5th Cir. Feb. 17, 2022) (per curiam).
I concur in the denial of rehearing en banc. I write separately to explain why, contrary to the dissent, the panel majority’s irreparable injury analysis is a relatively straightforward matter to defend.
I.
Being placed on indefinite unpaid leave because your employer doesn’t like your religious beliefs is obviously an adverse employment action and an actionable claim under Title VII of the Civil Rights Act of 1964. And you’ve obviously suffered irreparable injury when you’re forced to violate your faith in order to get your job back.
The injury would be entirely reparable by money damages if it was just about a loss of money. But it’s not. It’s about a loss of faith. And it’s about a crisis of conscience. You’re being coerced into sacrificing your faith in order to keep your job.
No measure of damages makes sense in this scenario. To keep your job, you must violate your faith. How much money would it take for you to sell out your faith?
To ask the question is to answer it. It seems obvious that violations of conscience are classic irreparable injuries. That’s why violations of the First Amendment have long been deemed irreparable. As the Supreme Court has held for decades, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.). See also, e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (same).
Yes, we all know that the First Amendment governs government entities, not private corporations. But it seems obvious that the reason that First Amendment injuries are irreparable is not because it’s inflicted by the government rather than business. It’s because the very nature of religious belief is spiritual, rather than pecuniary.
The panel dissent disagrees. It claims that First Amendment violations are uniquely irreparable because they involve the government and the Constitution. “[C]onstitutional violations work a different harm. Government exists to protect and uphold the Constitution. When government exceeds the consent of the governed to deny the rights it has sworn to protect, that betrayal is a unique, freestanding, and immeasurable injury.” Sambrano, 2022 WL 486610, at *24 (Smith, J., dissenting).
But the panel dissent cites no judicial authority to support this proposition. And for good reason.
To begin with, many courts, including our own, have applied the same irreparable injury analysis to statutory intrusions on religious liberty— including Title VII.
Take, for example, our decision in Opulent Life Church v. City of Holly Springs, 697 F.3d 279 (5th Cir. 2012). There we applied Elrod to a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). We said that Elrod “applies with equal force to the violation of RLUIPA rights because RLUIPA enforces First Amendment freedoms, and the statute requires courts to construe it broadly to protect religious exercise.” Id. at 295. Likewise, under the Religious Freedom Restoration Act (RFRA), “courts have recognized that this same [Elrod] principle applies.” Id. (quoting Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001)) (“[C]ourts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.”). See also Jolly v. Coughlin, 76 F.3d 468, 482 (2nd Cir. 1996) (“[A]lthough the plaintiff’s free exercise claim is statutory rather than constitutional, the denial of the plaintiff’s right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily.”).
These same principles readily apply to Title VII’s prohibition on religious discrimination. As we’ve observed, Title VII was “intended to protect the same rights in private employment as the Constitution protects.” Riley v. Bendix Corp., 464 F.2d 1113, 1116 (5th Cir. 1972) (quotations omitted). “At the risk of belaboring the obvious, Title VII aimed to ensure that employees would not have to sacrifice their jobs to observe their religious practices.” Adeyeye v. Heartland Sweeteners, 721 F.3d 444, 456 (7th Cir. 2013).
So there’s no basis for drawing a distinction between constitutional and statutory violations.
Nor is there any basis to draw the distinction based on what kind of entity—government or private—caused the injury.
To begin with, it’s just standard-fare preliminary injunction law that we look to the impact on the plaintiff, not the identity of the defendant, to determine whether an injury is irreparable. “Plaintiffs are entitled to a preliminary injunction if they show . . . a substantial threat that they”— meaning, the plaintiffs—“will suffer an irreparable injury if the injunction is not granted.” Doe I v. Landry, 909 F.3d 99, 106 (5th Cir. 2018) (emphasis added).
To be sure, we might think of government as different from private entities to the extent that government uniquely exercises the coercive power of the state. But that distinction doesn’t do any analytical work here. Just look at the canonical case in this area: Elrod is a government employment case—not a government coercion case. See 427 U.S. at 349–51. So Elrod shows that public employers can inflict irreparable injury without using the coercive power of the state—but rather the power of the paycheck. And private employers quite plainly have that same power, too.
All of this seems straightforward. And indeed, the Supreme Court has recently confirmed it. As the Court explained, this kind of injury is irreparable for the simple reason that the harm is “spiritual rather than pecuniary.” Ramirez v. Collier, 595 U.S. _, _ (2022). So “[c]ompensation . . . would not remedy this harm.” Id.
To millions of people of faith—including the members of the Supreme Court—it’s painfully obvious that there’s no way to calculate damages to compensate for the loss of one’s soul.
A new preprint study from Thailand did a controlled review of 300 children aged 13-18 who took the Pfizer jab. Researchers closely monitored all their cardiac markers for a few months post-injection, and found that a third of the jabbed children experienced cardiac side effects.
