In the Supreme Court of the United States WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ, MICHELLE SYNAKOWSKI, Applicants, v. KATHLEEN HOCHUL, HOWARD ZUCKER, Respondents.

 

 

https://drive.google.com/file/d/1ASnsJDBeJhe999k2F_y5NNQcY1SYebg-/view?usp=sharing 

 No. 21-A________

 

In the

Supreme Court of the United States

________________

WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ,

MICHELLE SYNAKOWSKI,

Applicants,

v.

KATHLEEN HOCHUL, HOWARD ZUCKER,

Respondents.

________________

To The Honorable Sonia M. Sotomayor

Associate Justice of the United States Supreme Court

And Circuit Justice for the Second Circuit

________________

EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

RELIEF REQUESTED BY AS SOON AS POSSIBLE

November 1, 2021

 

QUESTION PRESENTED

New York State Health Regulation § 2.61 requires all New York healthcare workers to receive a COVID-19 vaccination unless they qualify for the only exemption recognized by § 2.61 – a medical exemption. § 2.61 does not require employers to alter any medically exempted employee’s employment conditions, leaving it to their discretion on whether to alter those conditions at all. It compels the termination of those with religious objections. Applicant Diane Bono and many of Applicant We The Patriots USA, Inc.’s members lost their jobs because their sincerely held religious beliefs will not allow them to receive a COVID-19 vaccination. Applicants Michelle Melendez and Michelle Synakowski face the imminent loss of their employment for the same reasons. The district court denied the Applicants’ petition for emergency relief and for a preliminary injunction, and the United States Court of Appeals for the Second Circuit granted an injunction pending appeal based on the Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020). It then affirmed the district court’s denial of the Applicants’ request for a preliminary injunction.

The question presented is:

1. Whether New York State Health Regulation § 2.61 violates the Free Exercise Clause of the First Amendment by requiring employers to terminate healthcare workers who refuse a vaccine because of their religious beliefs but allows employers the unfettered ability to keep healthcare workers who refuse a vaccine because of a medical condition.

 

CONCLUSION

As the Court’s precedents clearly establish, there is no “plenary override” to constitutional liberties even in a public health emergency. When a state’s public health regulations burden fundamental constitutional rights, they must pass muster under a strict scrutiny analysis. New York State Health Regulation § 2.61 violates multiple fundamental constitutional rights, and it cannot pass muster under strict scrutiny. The Court should reject the Respondents’ invitation to create a public health exception or a “plenary override” to the liberties guaranteed by the United States Constitution and should issue a writ of injunction staying the enforcement of § 2.61 until the disposition of the Applicants’ petition for a writ of certiorari is filed and disposed of.

For the reasons stated herein, the Applicants respectfully ask the Court to issue an emergency stay against the enforcement of New York State Health Regulation § 2.61 as soon as possible pending the filing and disposition of a petition for a writ of certiorari.

The Applicants will not abuse the Court’s grant of a stay to create the functional equivalent of a preliminary injunction. If the Court does not set a briefing schedule for the petition, the undersigned represent to the Court that they will file a petition for a writ of certiorari within 14 days of the Court’s grant of their requested stay.