NYC firefighters, teachers ask Supreme Court to pause COVID mandate that cost them their jobs

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New York City firefighters, teachers, police officers, sanitation workers and others who lost their jobs after the city rejected their request for a religious exemption to the COVID vaccine mandate are appealing to the Supreme Court, and say the city discriminated against them while letting unvaccinated strippers and athletes keep their jobs.

In a Wednesday night legal filing to the court’s emergency docket, the workers argued New York City violated their right to "freely exercise their faith by forcing them to choose" between keeping their jobs or taking the vaccine against their "sincere religious beliefs."

Lawyers from the Alliance Defending Freedom (ADF), a civil rights law firm representing the workers, said in their filing that while they await a decision from the Second Circuit, their clients "are suffering the loss of First Amendment rights, are facing deadlines to move out of homes in foreclosure or with past-due rents, are suffering health problems due to loss of their city health insurance and the stress of having no regular income, and resorting to food stamps and Medicaid just to keep their families afloat."

ADF said those dire conditions warrant an emergency decision by the Supreme Court to pause the decision to fire the workers.

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The members of the U.S. Supreme Court on Sept. 30, 2022. (Collection of the Supreme Court of the United States via Getty Images)

"As we write in our emergency application for stay, these city heroes have dedicated their lives to serving their neighbors and keeping their city running safely and efficiently, yet New York City officials suspended and fired them because they cannot take the COVID-19 vaccine without violating their sincere religious beliefs," John Bursch, senior counsel for ADF, told Fox News Digital. "But for athletes, entertainers and strippers, the city found a way to loosen its mandate."

Jewish, Christian, Muslim and Buddhist workers argue in the lawsuit that the city's "entirely discretionary" criteria through which it decides approval for vaccine mandate exemptions violates their religious beliefs.

"The city never justified why an unvaccinated stripper can spend hours in close proximity to customers in an indoor venue, while a city sanitation worker cannot pick up refuse, outside, with virtually no person-to person contact absent a vaccination that violates his religious convictions," the brief said.

The filing argues that the city gets to choose which employees can obtain an exemption based on the economic benefit those workers bring to the city.

"For example, in March, Mayor Adams issued Emergency Executive Order 62, which exempted from the city’s blanket employee mandates classes of athletes, entertainers and strippers – not because they posed less risk of infection, but because the mayor believed the city would benefit from this economically," the court document said.

Mayor Eric Adams during a New York State Financial Control Board meeting on Sept. 6, 2022. (Stephanie Keith/Bloomberg via Getty Images)

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"So, while NBA star Kyrie Irving could return to the basketball court, Broadway entertainers could return to the stage (along with their make-up artists and entourages), and strippers could return to airless, enclosed adult entertainment parlors, hardworking sanitation workers, building inspectors, police officers and other public and private sector workers could not return to work – even if they had no in-person contact with the public," the document said.

The workers asked the court to pause enforcement of the city’s mandate while their lawsuit makes its way through the Second Circuit, a process that could take months. Their request was sent directly to Justice Sonia Sotomayor, who presides over the Second Circuit.

The Supreme Court has so far declined prior requests for emergency action in cases connected with COVID vaccine mandates, but this case appears to be the first that has been already fully adjudicated on the merits in lower courts, which could help the NYC workers.

In October 2021, the Supreme Court rejected an emergency application in a case brought by Maine health care workers who lost their jobs for not taking a state-imposed vaccine. Justices Brett Kavanaugh and Amy Coney Barrett sided with their liberal colleagues in rejecting the appeal. Barrett noted, however, that her reasoning was because the case was not fully briefed on the merits and the facts in a lower court, which is something the court considers when it receives requests for "extraordinary relief."

Protesters gather for a rally against COVID-19 vaccine mandates in front of the Lincoln Memorial in Washington, on Jan. 23, 2022. (AP Photo/Patrick Semansky, File)

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"Were the standard otherwise," Barrett wrote, "applicants could use the emergency docket to force the court to give a merits preview in cases that it would be unlikely to take – and to do so on a short fuse without benefit of full briefing and oral argument."

Lawyers for the workers hope the Supreme Court will make a decision as early as next week.

"It’s past time New York City honored the faith tradition of its public workers and rescinded its unconstitutional vaccine policies," Bursch said, adding that the Supreme Court should "listen to the stories of these dedicated public servants who are simply trying to provide for their families in a manner consistent with their faith."