All you need to know/All I would like to know

I would really like for someone to go slide by slide and debunk this without resort to ad hominin attacks, calls to authority, anecdotes, or other non-substantive rebuttal.

  

https://www.skirsch.com/covid/All.pdf

Religious Freedom Restoration Act, a Super Statute

The Religious Freedom Restoration Act (RFRA) is one of those rare laws which lives up to its name. 

Reasonableness not up for debate; sincerity, tread lightly

One thing I like about the RFRA is that it prohibits the federal government from second-guessing the reasonableness of sincerely held religious beliefs. As the Department of Justice website describes:

RFRA applies to all sincerely held religious beliefs, whether or not central to, or mandated by, a particular religious organization or tradition. Religious adherents will often be required to draw lines in the application of their religious beliefs, and government is not competent to assess the reasonableness of such lines drawn, nor would it be appropriate for government to do so. Thus, for example, a government agency may not second-guess the determination of a factory worker that, consistent with his religious precepts, he can work on a line producing steel that might someday make its way into armaments but cannot work on a line producing the armaments themselves. Nor may the Department of Health and Human Services second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization's religious precepts.

The government may question the sincerity of a belief to a certain degree, but not the reasonableness. Even with respect to sincerity, the government must tread lightly. As the 5th Circuit explained in Tagore v. United States, 735 F.3d 324 (5th Cir. 2013):

The specific religious practice must be examined rather than the general scope of applicable religious tenets, and the plaintiff's “sincerity” in espousing that practice is largely a matter of individual credibility. Id. at 792. In fact, the sincerity of a plaintiff's engagement in a particular religious practice is rarely challenged. Id. at 791. As Moussazadeh explains, “[t]hough the sincerity inquiry is important, it must be handled with a light touch, or ‘judicial shyness.’ ” Id. at 792 (quoting A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 262 (5th Cir.2010)). “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. (fn. omitted). Both before and following Moussazadeh, claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff's credible assertions. See, e.g., Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir.2013) (Muslim prisoner's desire to wear a beard not challenged by TDCJ); Betenbaugh, 611 F.3d at 261–62 (Native American schoolboy wearing long hair a sincere religious belief; Texas RFRA parallels RFRA); Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599 (5th Cir.2008) (Odin worshiper's religious need for runestones and rune literature not challenged by TDCJ).

    Officials can be sued for monetary damages, in their personal capacities

A really interesting thing about the RFRA is that it allows plaintiffs to recover monetary damages against government officials in their personal capacities. The Supreme Court confirmed as much in Tanzin v. Tanvir last year. The Court described the issues there:

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost. More than a year after respondents sued, the Department of Homeland Security informed them that they could now fly, thus mooting the claims for injunctive relief. 

The District Court then dismissed the individual-capacity claims for money damages, ruling that RFRA does not permit monetary relief. The Second Circuit reversed. 894 F. 3d 449 (2018). It determined that RFRA’s express remedies provision, combined with the statutory definition of “Government,” authorizes claims against federal officials in their individual capacities. Relying on our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended phrase “appropriate relief” encompasses money damages against officials. We granted certiorari, 589 U. S. ___ (2019), and now affirm.

    An important thing to keep in mind about Tanzin v. Tanvir, is that the plaintiffs had already been removed from the No Fly List by the time the case was before the Court. The government argued that this fact made the case moot. But the Court disagreed. Plaintiffs might still be entitled to damages. To me, this means that federal employees who take the injections after having their religious exceptions denied might still have non-moot claims for damages. 

    A super statute which creates standing

Perhaps one of its most important aspects is the RFRA's power to provide plaintiffs with standing to bring their claims in federal court.  The RFRA mandated that the law “'be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.’” Hobby Lobby, 573 U.S. at 696 (quoting 42 U.S.C. § 2000cc—3(g)). “RFRA operates as a kind of super statute, displacing the normal operation of other federal laws.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020). 

A big question is whether the RFRA provide federal employees with standing to file lawsuits against the federal government.  When addressing this issue, the the EEOC's website lists four cases.

They represent a mixed bag. 

In two circuit court cases, the 8th and 3rd Circuits found that Title VII provides the "exclusive remedy" for religious discrimination claims of federal employees. 

• Harrell v. Donahue, 638 F.3d 975, 984 (8th Cir. 2011)(holding RFRA claims alleging religious discrimination in federal employment are barred because “Title VII provides the exclusive remedy for [] claims of religious discrimination”);
• Francis v. Mineta, 505 F.3d 266, 272 (3d Cir. 2007) (stating that “[i]t is equally clear that Title VII provides the exclusive remedy for job-related claims of federal religious discrimination, despite [plaintiff’s] attempt to rely upon the provisions of RFRA”). 
[In a third case, not on the EEOC website, the 9th Circuit sided with the 8th and the 3rd. See Holly v. Jewell, 196 F.Supp.3d 1079, 1085 (N.D. Cal. 2016) (dismissing constitutional claim arising from alleged First Amendment religious discrimination as covered exclusively by Title VII)]

But  in one district court case, out of the Southern District of Ohio (6th Circuit), the judge found that Title VII does not preclude such an action.

• Lister v. Def. Logistics Agency, No. 2:05-CV-495, 2006 WL 162534, at *3 (S.D. Ohio Jan. 20, 2006) (denying defendants’ motion to dismiss as to RFRA claim and finding that “Title VII does not preclude Plaintiff from pursuing claims under the Fifth Amendment to the United States Constitution and RFRA” because “[a]lthough the claims arise from the same factual circumstance as the Title VII claim, the claims are distinct from Plaintiff’s claim for employment discrimination and therefore are not precluded by Title VII”). 

In the fourth case, the 5th Circuit found that the RFRA provided standing to a federal employee who was suing a federal agency which was not her employer.

•  In addition, one appellate court has held that a federal employee is not preempted from bringing a RFRA claim against another agency (not his employer) to challenge that agency’s action interfering with employment. See, e.g., Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) (allowing employee’s RFRA claim to proceed against agency that enforced building security regulations and denied her permission to enter building while wearing a kirpan).

Targore is an interesting case. Plaintiff there brought a Title VII case against the her employer (IRS) as well as an RFRA case against DHS which had barred her from wearing a religious weapon which had led to her discharge from the IRS. The 5th Circuit dismissed the Title VII claim, but not on standing grounds. Rather, the court found that the IRS did not control the building and had not failed its duty to attempt to reasonably accommodate the plaintiff. The 5th Circuit found that the plaintiff did have standing and a triable case against DHS.

The RFRA has only grown stronger since Targore and the other cases cited by the EEOC. As Justice Gorsuch wrote in Bostock, "[b]ecause the "RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases."

So, what does this all portend for vaccine mandate cases? It seems to me that if the RFRA's definition of "government officials" includes FBI agents in their personal capacities, it also includes presidents who sign executive orders in their official and personal capacities, as well as the officials who make up the Safer Federal Workforce Task Force, and various agency officials who make decisions about whether to provide employees with religious exceptions and what kinds of questions about their religion they should be forced to answer.

In my view, there are two distinct religious burden issues. First, there is the issue of the religious burden imposed on those who have a religious belief that runs contra taking the mandated injections. Second, there is the issue of the burdens involved in seeking relief from the mandate. For instance, if the exception process is an elaborate, bad faith charade where officials know that they will not be accommodating any religious exceptions, but they lead employees on to write out requests for them...that would seem to me to represent an undue burden on religious practice.

But I will caution the reader to do his own research. My research on these issues is done without access to legal resources like Westlaw, and it is done on my own time (which is pretty limited by fact of the five children who keep me pretty busy). Which is to say that it is always possible that I am missing something important. Do your own research (and if you find any relevant authority, please send it my way).

david.foley.JMJ@protonmail.com

Litmus Test Failures at Intelligence Agencies

As reported by Reuters, there seem to be a good number of employees in the civilian intelligence community who are resisting the mandate. Presumably those intelligence employees know a thing or two about how to detect lies, including "big lies." 

It is hard to know how many we are talking about because the percentages (except for the CIA which reports 97% vaccination rate) are secret:

"The Biden administration classified information it gave the intelligence committee on each of the nation’s 18 intelligence agencies, said Stewart, who noted generally that agencies more closely affiliated with the military tended to report lower vaccination rates."

 An op-ed by US Reps. Chris Stewart (R-UT) and Devin Nunes (R-CA) raises some important questions.

One can also reasonably ask whether the Biden administration believes that a benefit of this policy will be to shrink a demographic within the realm of government service that the administration perceives to lean conservative.

I raise the same issue in my lawsuit. ("the Order acts as a loyalty test and will have the effect of purging [straight, white, conservative, Christian men] from the ranks of the federal government")

The congressmen go on to note:

None of this is even to mention how these employees might react to being fired over a personal medical decision. It is a legitimate concern to create significant numbers of unemployed intelligence professionals with Top Secret clearances. These officers very well may feel betrayed, angry, and underappreciated by a country they chose to protect.

Good point.  

Covid Mandate Jokes

1. I was going to tell a Covid symptom joke...

but it was bad taste

2. Plus, you might have died from laughter

Although 99.95% of you would not have

3. When George Washington ordered his men to be inoculated against small pox, why didn't he order those who had already had small pox to be inoculated as well?

The CDC hadn't been created yet

4. What's the difference between Moderna's vaxx and cocaine?

It takes more than two shots of cocaine to cause a heart attack

5. How were scientists able to develop safe and effective vaccines in months when everyone said it would take years?

They didn't

6. How is it that almost zero Americans have suffered side-effects from the FDA-approved Comirnaty vaccine?

Almost zero Americans have ever been injected with it.

7. For unvaccinated college kids, what is the difference between getting Covid and having a hangover?

Odds are they will have another hangover

8. Since Covid does not pose a real risk to children, why do their parents get them vaccinated?

Because they are sick

9. Does the "vaccine" injection leave a scab?

No, but it can create one

Saint Benedict, Patron Saint of Poison, Pray for Us

Saint Benedict first rejected the spiritual poisons of decadent life in Rome.

He lived as a hermit for three years in a cave near Enfide.

Others recognized his spiritual strength. After a while, a group of monks asked him to become their leader. Knowing that they were not yet truly committed to a life of work and prayer, Saint Benedict warned them that his leadership would be too much for them. Despite these warnings, they asked him to lead them. Reluctantly, he accepted.

As he had predicted, the monks grew to resent his stern command. First they attempted to kill him by giving him a poison-laced cup. But when he blessed the cup, it shattered.

Second, they attempted to kill him by poisoning his bread. A raven snatched it away.

From this, we have the adage today, "Fool me once, shame on you -- Fool me, twice, shame on me."


Or perhaps not. In either event, twice was enough and Saint Benedict fled from those monks. He went on to establish a number of monasteries that followed the Rule that he wrote down, the most important of which was the Benedictine monastery at Monte Cassino. His influence on Europe is unsurpassed by any other figure after him. It all began with rejection of poison.


What does this have to do with America in 2021?

Poison, both physical and spiritual is all around us. It flows over the air in radio waves, through the ground in internet cables, and through our bloodstreams in the form of medically approved, if evil and destructive, formulas like Oxycotin® (aka heroin), Kyleena® (aka birth control), and Gonadotrophin Releasing Hormone (aka "gender affirming hormones" which act to halt the biological processes of puberty).

Additionally, we are now poisoned by the fell fruit of our own sin in the form of chemical products ("vaccines") that are derived from the flesh of children cut down before they could be born. Three times in the Old Testament (Exodus 23:19, 34:26 and Deuteronomy 14:21), God told his people, “You shall not boil a kid in its mother’s milk.” Does this fickle people need Him to tell us now that we should not inject into the veins of the mother the flesh of her murdered child? Can we not recognize this poison without further inquiry?

Surrounded by poison, let us reject it and pray with Saint Benedict,

Vade retro satana: Vade retro Satana! Numquam suade mihi vana! Sunt mala quae libas. Ipse venena bibas!
'Begone Satan! Never tempt me with your vanities! What you offer me is evil. Drink the poison yourself!'

Michael Yoder's New, VERY INTERESTING Complaint Makes it 5 Cases Challenging the Federal Employee Vaxx Mandate

As reported by Under Cover DC, attorney Michael Yoder (who filed the first complaint against the EO on 9-23) filed another complaint on October 24 (Church v. Biden, Case 1:21-cv-02815) in which he makes shocking allegations about the Safer Federal Workforce Task Force's handling of the Mandate. 

Of particular interest, the complaint alleges:

B.    THE TASK FORCE’S SCHEME TO CIRCUMVENT THE FIRST AMENDMENT AND DEPRIVE PLAINTIFF’S OF THEIR FREE EXERCISE OF RELIGION

 

50.                  Since the day President Biden issued the Vaccine Mandate, hundreds of thousands of federal government employees have been in complete disarray. Federal employees with serious, life-threatening conditions and others with sincerely held religious beliefs, such as Plaintiffs, have frantically sought guidance on how to obtain reasonable accommodations.

51.                  Due to the rapidly approaching deadline and Defendants’ full awareness that Plaintiffs have the fundamental right to engage in the free exercise of religion, Defendants concocted a scheme that imposes a “deadline” to submit religious exemption requests to help “evaluate the scope” of how many federal employees have sincerely held religious beliefs prohibiting compliance with the vaccine requirement. After determining the scope, the Task Force instructed the agencies to “collect information” through a questionnaire calculated to elicit information the agencies can then use as the basis for denying a respondent’s exemption request.

52.                  Video Footage from an October 8, 2021 Task Force Zoom call¹⁴ involving nearly 200 high-level officials from various agencies reveals Samuel Berger, a former Senior Advisor in

¹³ The term “agency” means an Executive agency as defined in 5 U.S.C. § 105 (excluding the Government Accountability Office). Id. at § 3.

¹⁴ Samuel Berger, COVID-19 Guidance Zoom Meeting, SAFER FEDERAL WORKFORCE TASK FORCE (Oct. 8, 2021);

see Exhibit 5.

the Obama Administration and the former Vice President of Democracy for John Podesta’s Center for American Progress (“CAP”) discussing the methodical approach each agency is to take when dealing with religious exemptions.

53.                  The Task Force advised each agency¹⁵ to establish a deadline which the agencies are not to enforce – because there is no deadline imposed on the fundamental right to freely exercise religion – but rather, to use as a “forcing function” that will induce all or nearly all federal employees with sincerely held religious beliefs to submit their requests.

54.                  Once all or nearly all federal employees have submitted their religious exemption requests, the agencies, individually or in conjunction with the Task Force, can then “evaluate the scope” of how many federal employees wish to exercise their fundamental right to freely exercise their religion.

55.              The Task Force then directed the agencies to refrain from issuing any decisions, because “once you grant an exemption to an individual in a job category, it is very hard to say that you’re not going to grant [an exemption] to a similarly situated person.”

56.              The Task Force further instructed the agencies to “take their time” and the agencies “should not feel rushed that they have to take steps immediately” because it is important to “collect information” on federal employees, such as Plaintiffs, whose sincerely held religious beliefs prohibit them from complying with the vaccine requirement.

57.              To collect this information, the Task Force advised it provided the agencies with a religious exemption form with questions that are intended to elicit information from federal employees seeking religious exemptions. The Task Force directed the agencies to “work bearing

¹⁵ The term “agency” means an Executive agency as defined in 5 U.S.C. § 105 (excluding the Government Accountability Office). See Exec. Order No. 14043 at § 3. It does not include the White House (“WH”), Centers for Disease Control and Prevention (“CDC”), the National Institute of Health (“NIH”).

 

in mind that a fair bit of thought went into the range of questions and the kind of information that [the questions] would provide.” The Task Force then gives the agencies authority to refuse to provide accommodations under whatever circumstances each agency so chooses.

58.              Rather than advising the agencies under what circumstances the refusal to provide an accommodation would constitute a violation of federal law or deprivation of fundamental rights, the Task Force merely emphasized how important it is for the agencies to “figure[e] it out as quickly as possible . . . because [the agencies are] not going to run an accommodation in those places–and that’s totally fine.”

59.              As a result, Defendants have either failed to implement a process by which     Plaintiffs and other federal employees are able to submit religious exemptions or implemented a process for Plaintiffs to provide information to Defendants to which they are not entitled in violation of current EEOC Guidance, federal statutory law, and Plaintiffs’ fundamental First Amendment right to engage in the free exercise of religion.