Faith Groups Seek Emergency High Court Stay on OSHA Mandate

GOP lawmakers file amicus brief for Navy SEALS

Supreme Court nominee Judge Brett Kavanaugh speaks at the Senate Judiciary Committee hearing on the nomination of Kavanaugh to be an associate justice of the Supreme Court of the United States, on Capitol Hill in Washington on Sept. 27, 2018. Michael Reynolds/Pool/Getty Images

Attorneys for nearly a dozen faith-based employers are asking the Supreme Court to issue an emergency stay on enforcement of President Joe Biden’s COVID-19 vaccine mandate and to take the case for a full review by the nine justices.

“Relief is warranted because the mandate seeks to issue sweeping non-workplace, public health measures. The Occupational Safety and Health Act (‘OSH Act’) only concerns ’workplace-specific hazards’ and ‘workplace-specific safety measures,’” the faith-based employers told Justice Brett Kavanaugh in a motion filed late on Dec. 17.

The OSH Act established the Occupational Health and Safety Administration (OSHA) and defined the scope of its authority. Biden issued the mandate on all private employers with 100 or more workers through OSHA. The mandate requires all covered workers to receive the vaccine against the CCP virus, also known as the novel coronavirus, or be tested on a weekly basis.

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett. Erin Schaff/Pool/Getty Images

The faith-based employers, who are represented by the Arizona-based Alliance Defending Freedom (ADF), include the Southern Baptist Theological Seminary, Bishop O’Gorman Catholic Schools, Christian Employers Alliance (CEA), Home School Legal Defense Association (HSLDA), Cambridge Christian School, and The King’s Academy.

Kavanaugh is the Supreme Court justice designated for hearing appeals from cases in the U.S. Appeals Court for the 6th Circuit. He can issue the requested stay, return the case to the 6th Circuit for review by a different three-judge panel, or move to accept ADF’s writ of certiorari for review by the full court.

The employers also told Kavanaugh that “absent a stay, OSHA will immediately ‘commandeer’ religious institutions to enforce federal mandates on their own ministers and employees and ‘compel’ them to ’receive a COVID-19 vaccine or bear the burden of weekly testing.’

“OSHA will interfere with religious institutions’ internal management and employment decisions, and substantially burden their faith. And it will force religious institutions to incur significant costs and divert resources away from their mission of preaching the Gospel and living out their faith. That is an abuse of executive power.”

That motion came in response to a ruling by a three-judge 6th Circuit panel that lifted an earlier stay on enforcement and appeared to clear the way for OSHA to begin imposing fines on noncompliers in early January 2022.

A woman receives a Pfizer-BioNTech COVID-19 vaccine at the UHealth's pediatric mobile clinic on May 17, 2021, in Miami. Joe Raedle/Getty Images

The three-judge panel’s ruling came as a surprise to legal observers because, as the faith-based employers pointed out in their request to Kavanaugh, most of the judges on the 5th Circuit and the 6th Circuit “who have examined the merits ... [were] concluding that OSHA exceeded its authority was not ‘particularly hard.’”

Also filing a request to Kavanaugh on Dec. 18 was the First Liberty Institute (FLI), a Plano, Texas-based public interest law firm, on behalf of the American Family Association, Answers in Genesis, and the Daystar Television Network.

Frank Chang, a senior attorney with ADF, told The Epoch Times on Dec. 20 that a response from Kavanaugh could come at any time.

“We’re confident that the Supreme Court is going to intervene in this case because what OSHA has done is just patently unlawful,” Chang said. “We followed the emergency application procedure for a stay provision, so it is on an emergency, expedited track and the Supreme Court is going to look at is this unlawful, is this going to create irreparable harm, it’s going to look at all those factors.”

Chang also said an important factor in the high court’s actions in the case is the fact that 11 judges in the lower courts “have already concluded that this is unlawful, so this is going to enter into the decision.”

In addition, Chang pointed out that OSHA “has put out updated guidance, OSHA is going to start issuing citations in mid-January, so it’s very important for the Supreme Court to act sooner rather than later.”

In a related development, 47 Republican lawmakers submitted an amicus brief to the Supreme Court in support of 35 U.S.. Navy SEALs and other warfare specialists appealing the military’s denial of their requests for religious exemptions to Biden’s vaccine mandate for the Department of Defense (DOD).

Navy SEALs perform Advanced Cold Weather training to experience the physical stress of the environment and how their equipment will operate, or even sound, in adverse conditions in Kodiak, Alaska, on Dec. 14, 2003. Photo by Photographer's Mate 2nd Class Eric S. Logsdon/U.S. Navy via Getty Images

The Navy warriors, whose requests for religious exemptions were denied by DOD, are represented by FLI.

The 47 Republicans told the court that “no right is more precious than the right to religious liberty. That is why the very first clause of the very First Amendment explicitly states that ‘Congress shall make no law . . . prohibiting the free exercise’ of religion. This amendment, case law, and Congress’s decision to pass the Religious Freedom Restoration Act (RFRA) all testify to the fact that, without entrenched, generally applicable, and judicially enforceable protections for religious liberty, lawmakers and government bureaucrats are susceptible to override sincere religious beliefs in favor of what they perceive to be the greater good.”

The amicus brief was filed by FLI on behalf of Sens. Ted Cruz of Texas, Rick Scott of Florida, Mike Lee of Utah,  James M. Inhofe and James Lankford of Oklahoma, Steve Daines of Montana, Roger F. Wicker of Mississippi, Mike Braun of Indiana, and Roger Marshall of Kansas.

Also represented in the amicus brief are GOP Reps. Mike Johnson of Louisiana, Rick Allen of Georgia, Brian Babin of Texas, Jack Bergman of Michigan, Andy Biggs of Arizona, Dan Bishop of North Carolina, Lauren Boebert of Colorado, Mo Brooks of Alabama, Kat Cammack of Florida, Andrew Clyde of Georgia, Warren Davidson of Ohio, Rodney Davis of Illinois, Jeff Duncan of South Carolina, Bob Gibbs of Ohio, Louie Gohmert of Texas, Bob Good of Virginia, Paul Gosar of Arizona, Michael Guest of Mississippi, Andy Harris of Maryland, Vicky Hartzler of Missouri, Jody Hice of Georgia, Clay Higgins of Louisiana, Darrell Issa of California, Ronny L. Jackson of Texas, Doug LaMalfa of California, Doug Lamborn of Colorado, Billy Long of Missouri, Thomas Massie of Kentucky, Brian Mast of Florida, Mary Miller of Illinois, Gregory F. Murphy of North Carolina,  Ralph Norman of South Carolina, Scott Perry of Pennsylvania, Matthew Rosendale Sr. of Montana, Chip Roy of Texas, Gregory Steube of Florida, Randy Weber of Texas, and Daniel Webster of Florida.