The Biggest Threat to Herd Immunity Against COVID-19 May Be the Religious Freedom Restoration Act(s) and State Religious Exemptions

MARCI A. HAMILTON

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—argues that the biggest threats to herd immunity against COVID-19 are federal and state religious liberty statutes and religious/philosophical exemptions. Hamilton describes how the federal Religious Freedom Restoration Act (RFRA) and its state-law equivalents came to be in the United States, and she calls upon legislators at all levels to amend RFRA so that once we have developed an effective and safe vaccine, we might as a country develop herd immunity and prevent more unnecessary deaths.

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Starnes v. Butler County Court of Common Pleas

Docket: 18-3271

Opinion Date: August 24, 2020

Judge: Hardiman

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

In 2004, Starnes, an Allegheny County Probation Officer, met Doerr, the President Judge of the Butler County Court. Doerr repeatedly called Starnes to ask her to meet him at his chambers. Starnes eventually visited his chambers after hours. Doerr insisted on having sex, telling Starnes that it would be a 'business relationship.’” Doerr exercised authority over hiring probation officers. Starnes wished to return to Butler, her hometown; Doerr made sure she was hired. After Starnes started working in Butler County, Doerr began summoning her to his chambers for sexual relations. After their sexual relationship ended in 2009, Doerr continued asking her to film herself performing sexual acts, flirting with her from the bench, and threatening to "help her return to her previous job.” In 2010, Starnes began dating the man she later married, another Probation Officer. He was harassed and pushed into retirement. Starnes was denied her own office, overtime, training, and other opportunities she alleges her male counterparts had. Within days of telling her supervisors of her intention to file EEOC charges, Starnes was placed on a “performance improvement plan.” Weeks earlier, Starnes had received a positive evaluation with no noted performance issues. The Third Circuit held that accepting her allegations as true, Starnes stated plausible claims for sex discrimination in violation of the Equal Protection Clause, a hostile work environment under 42 U.S.C. 1983, and that Doerr violated her First Amendment freedom of expression and right to petition the government. Because the law is clearly established that this conduct is actionable discrimination, the district court did not err in denying Doerr qualified immunity. The court reversed the denial of qualified immunity on Starnes’s intimate association claim.