Rachel Spivack v. City of Philadelphia

                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 ______________

                         No. 23-1212
                       ______________

                     RACHEL SPIVACK,
                               Appellant

                              v.

CITY OF PHILADELPHIA; LAWRENCE S. KRASNER
              ________________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
               (D.C. Civil No. 2-22-cv-01438)
         District Judge: Honorable Paul S. Diamond
                     ________________

                Argued on November 29, 2023

   Before: KRAUSE, FREEMAN, and MONTGOMERY-
               REEVES, Circuit Judges

                (Opinion filed: July 29, 2024)
                     ________________

Justin Butterfield
David J. Hacker
Lea E. Patterson [ARGUED]
First Liberty Institute
2001 W Plano Parkway
Suite 1600
Plano, TX 75075
      Counsel for Appellant

Craig R. Gottlieb
City of Philadelphia Law Department
1515 Arch Street
17th Floor
Philadelphia, PA 19102
      Counsel for Appellee City of Philadelphia

Anne E. Kane
David Smith [ARGUED]
Dilworth Paxson
1500 Market Street
Suite 3500E
Philadelphia, PA 19102
      Counsel for Appellee Lawrence S. Krasner

                       __________

              OPINION OF THE COURT
                    __________


FREEMAN, Circuit Judge.

      Rachel Spivack worked at the Philadelphia District
Attorney’s Office (DAO) and was subject to its COVID-19
vaccine mandate. The DAO denied her request for a religious




                              2
exemption, and she lost her job. She then sued the City of
Philadelphia and District Attorney Lawrence Krasner,
claiming that the mandate violated her constitutional right to
the free exercise of religion. The District Court rejected that
claim, granting the defendants’ motions for summary judgment
and denying Spivack’s cross-motion. Because it overlooked
factual disputes that a jury must resolve, we will vacate its
order and remand the case for trial.

                               I

                               A

       In March 2020, the COVID-19 pandemic severely
disrupted the DAO’s operations. Although the office adapted,
it faced serious constraints: the criminal justice system could
not shut down, and some of the DAO’s responsibilities could
be accomplished only in person.

       Krasner responded to the pandemic by instituting a
series of policies governing building access, masking, testing,
and quarantine after exposure. He issued these policies under
his broad authority to manage the office as an independently
elected official. To develop the policies, he relied on guidance
from the Centers for Disease Control and Prevention, the
Philadelphia Department of Public Health, and a small team of
advisors, including Michael Lee, his Chief of Staff; Cecilia
Madden, his Deputy Chief of Staff; and his two First Assistant
District Attorneys, Robert Listenbee and Carolyn Temin.

       Some of the DAO’s COVID-19 policies lined up with
the City’s, but others did not. Krasner believed that the City
was politically constrained to enact suboptimal rules that did
not maximize employee and public health. So he charted his




                               3
own course, driven by a conviction that the DAO’s public
safety mission required it to protect from infection its own
employees, their families, and the people they encounter in the
criminal justice system, including defendants, crime victims,
defense lawyers, judges, and court staff.

       Given the setup of the DAO, Krasner’s policymaking
authority did not extend to all DAO employees. The line
prosecutors in the office, known as Assistant District Attorneys
(ADAs), are non-unionized, at-will employees who serve at the
DA’s pleasure. Some other DAO employees, however, are
members of municipal employee unions. For instance, several
Philadelphia Police Department officers are assigned to the
DAO, and they belong to the City’s police union. Similarly,
some civil servants working in administrative roles at the DAO
belong to a public employee union. These workers’ terms of
employment are governed by collective bargaining agreements
between their unions and the City.

       For about a year after the onset of the pandemic, the
office operated in limbo, with many of its employees working
a remote or hybrid schedule. Once vaccines became widely
available in spring 2021, Krasner and his advisors began to
discuss how to safely revert to in-office work.

                               B

        Spivack graduated from law school in spring 2021, and
the DAO offered her an ADA position beginning that
September. The offer specified: “Your employment in this
position is exempt from Civil Service and is considered ‘at-
will,’ which means you serve at the pleasure of the District
Attorney.” App. 39. She accepted the offer, signing a form
that reiterated the at-will nature of the position and affirmed




                               4
her understanding that her “employment, future unit
assignments, duration of assignments, transfers, and any salary
increases are completely within the discretion of the District
Attorney.” App. 41–42.

        In preparation for her employment at the DAO, Spivack
registered to take the Pennsylvania bar exam remotely in July
2021. Ultimately, she did not comply with the remote testing
requirements and could not take the exam. She shared this
news with Madden, who told her that the DAO would assign
her to an ADA position that did not require a license to practice
law in Pennsylvania. In September 2021, Spivack started
working in that capacity in the DAO’s Juvenile Diversion Unit.

                               C

       About a month before Spivack’s start date, the DAO
issued the initial version of its COVID-19 vaccine mandate
(“the August 2021 policy”). Madden developed the policy in
consultation with Krasner, who ultimately approved it.

       The August 2021 policy required “[a]ll DAO
employees . . . to provide proof of vaccination or apply for an
exemption by September 1, 2021.” App. 51. It did not offer
any alternatives to vaccination, such as masking or testing. But
it set out a process to apply for medical or religious
exemptions: employees could fill out a form with a description
of the requested exemption and the reasons it should be
granted. Religious exemptions would be granted “absent
undue hardship, to employees with verifiable, sincerely held
religious beliefs, observances, or practices that conflict with
getting vaccinated.” App. 52. Exemption requests would be
evaluated “on a case-by-case basis considering various factors
and based on an individualized assessment in each situation.”




                               5
Id. The policy also said that “[t]he DAO will engage in an
interactive dialogue with you to determine the precise
limitations of your ability to comply with this . . . policy and
explore potential reasonable accommodations that could
overcome those limitations.” App. 53. This decision to permit
requests for exemptions was based on “the employment law
knowledge at the time that issuing this kind of mandate allows
for some process for requesting exemptions.” App. 166.
Because unionized DAO employees like police officers and
civil service workers were governed by their collective
bargaining agreements, they were not subject to the policy.

       The DAO implemented the August 2021 policy for
several reasons. Top of mind were the risks to life and health
posed by COVID-19. Several members of DAO leadership
knew people who died from the disease. They were concerned
about particularly vulnerable employees, including elderly
employees and those with preexisting medical conditions, and
employees’ family members, including young children who
were not yet eligible for vaccination. They also wanted to
prevent COVID-19 outbreaks that could disrupt the office and
undermine its ability to function, particularly as the court
system reopened.      Relatedly, they hoped to convince
employees who were reluctant to return to the office that in-
person work would be safe.

       Krasner also considered alternatives to a mandate and
found them insufficient. He thought a weekly testing regime
would impose a large administrative burden on the office yet
provide incomplete information. He believed a masking
requirement would be difficult to enforce, and he had no
authority or budget to change the ventilation system in the
DAO’s office building.




                               6
                                D

        Spivack received notice of the August 2021 policy
shortly before her first day at the DAO. In September 2021—
within a week of starting work—she submitted a religious
exemption request with a supporting letter from her rabbi. The
letter stated that Spivack belongs to the rabbi’s congregation,
that she “is an orthodox Jew who is fully observant of
Scriptural and rabbinic laws and guidance,” App. 54, and that
her “religious grounds for declining this vaccination are valid
and reflect deep personal commitment to her religious
practice,” App. 56–57.

       In December 2021, Madden emailed all recent hires
who had not yet submitted proof of vaccination, including
Spivack. The email instructed those seeking medical or
religious exemptions from the mandate to complete and return
an exemption form. It attached a form that asked applicants to
“describe the specific belief that supports your receiving a
religious exemption from being vaccinated for COVID-19.”
App. 60. The form also asked about the applicant’s vaccination
history, history of receiving religious exemptions from
vaccination requirements, membership in an organized
religion, affiliation with a religious congregation and
attendance at religious services, and religious beliefs about diet
and medical care. Madden and Krasner both testified that,
when they distributed the form, they had not yet decided how
to handle religious exemptions.

       Spivack completed the detailed form and returned it to
Madden. She wrote that “[a]ll three available brands of
COVID-19 vaccines constitute a profound violation of the
scriptural prohibitions against forbidden mixtures,” and that
“[i]njecting such forbidden substances directly into our




                                7
bloodstream completely challenges scriptural teaching that
regards one’s body as the repository of the soul made in God’s
image.” App. 60–61. She noted that her religious beliefs
preclude receiving any vaccine (not just the COVID-19
vaccine), that she had not received any vaccines in the past ten
years, and that she was exempted from her law school’s
vaccination requirement.1 She also explained that there are
diverse beliefs about vaccination within the Orthodox
community: because “Orthodox Judaism does not have a single
central authority” and “[m]any decisions related to modern
medical treatment and Jewish law require interpretation and
extrapolation from ancient sources,” different Orthodox rabbis
“may come to different, but equally valid, rulings about a
course of action.” App. 64.

                               E

       In January 2022—after Spivack submitted her
exemption form and supporting documentation, but before she
received a decision—Madden and Krasner claim that the DAO
made a policy change. Rather than offering religious
exemptions and evaluating them case-by-case, as the August
2021 policy provided, Krasner decided to categorically deny
religious exemption requests without individualized
assessment.2 He opted to implement this new policy (“the

1
  As evidence of her exemption from her law school’s
vaccination requirement, Spivack attached the form she
submitted in support of that exemption request.
2
  The City, by contrast, allowed religious exemptions case-by-
case. When the City approved an exemption, it would forward
that determination to the relevant employee’s department.




                               8
January 2022 policy”) after conducting legal research and
determining that the law did not require religious exemptions
to a vaccine mandate. He also considered the emergence of the
Omicron variant of COVID-19, which caused a surge of cases
in December 2021 and January 2022, and his discomfort with
the prospect of adjudicating the sincerity of his employees’
religious beliefs.

       Krasner testified that he established the January 2022
policy before reading any of the exemption requests. Although
he made the final decision to implement this new policy, he
consulted his senior advisors before making the change.

        The record invites some questions, however, about the
exact terms of the policy change or whether a change was made
at all. No evidence shows that the January 2022 policy was
committed to writing or disseminated to DAO staff. (By
contrast, the August 2021 policy was written down and
addressed in emails to staff.) Listenbee, the First Assistant DA,
testified that there was no change in the policy and that Krasner
still reviewed all religious exemption requests on an
individualized basis after January 2022. Krasner also admitted

Exempted employees had to double mask and undergo routine
testing. But the implementation of these requirements was left
to the discretion of each department. The record reveals that
some DAO employees erroneously forwarded their exemption
requests to the City, which processed them. Spivack, however,
never sent any information to the City, so it never adjudicated
her exemption request. Krasner testified that he disagreed with
the City’s policy “[b]ecause it presents yet another
public . . . health obstacle in the middle of an international
pandemic within the walls of my office.” App. 348.




                               9
that he reviewed the religious exemption requests, though he
says that he did so only out of respect for the time employees
devoted to preparing them. In any event, Krasner denied
Spivack’s exemption request.

                               F

       Spivack learned that her exemption request was denied
at a meeting in March 2022. Madden led the meeting and
conveyed the denial by reading from a prepared script. She
declined to explain the decision further and did not tell Spivack
that the DAO was categorically denying religious exemption
requests.

        Several days later, Spivack received a formal denial
letter signed by Madden. The letter explained that Spivack’s
exemption request was denied “for failing to meet legal
requirements.” App. 66. It included a “Legal Analysis”
claiming that the mandate was neutral and that exemptions
would cause an undue burden. App. 66–67. It also stated the
following:

       In addition to the law permitting the DAO’s
       neutral COVID-19 vaccine policy and not
       requiring accommodations if they constitute an
       undue burden for the DAO, Rachel Spivack does
       not present a credible claim that their opposition
       to the vaccine was based on their religious
       beliefs. The fact that an individual is religiously
       devout does not by itself qualify them under the
       law for a religious exemption. DAO has not
       designated which currently approved COVID-19
       vaccine an employee must take. Consequently,
       to the extent an employee opposes how the




                               10
       vaccine was manufactured, they have other
       COVID-19 vaccines from which to choose.

App. 67. Though this passage references Spivack by name, it
bears the indicia of a form letter: it uses gender-neutral
pronouns, and Spivack’s name was entered on a blank line. It
also does not address the contents of Spivack’s exemption
request form (which explained, among other things, that taking
any of the available COVID-19 vaccines would violate her
religious beliefs). Krasner testified that the letter does not
reflect the January 2022 policy, that it was drafted before he
eliminated the religious exemption, and that he did not review
it before Madden sent it to Spivack.

        In addition to the letter from Madden, Spivack received
a letter from Lee, the Chief of Staff, informing her that, because
her exemption request had been denied, she would be placed
on leave if she did not get vaccinated. She then met with
Listenbee to ask whether there was any way to keep her job
without getting vaccinated. Listenbee told her that he was
unaware of any workarounds. Spivack claimed that she
offered to mask indefinitely in the office and test weekly, but
that Listenbee “refused to engage.” App. 496. Spivack also
asked Jordan King, the head of the Juvenile Diversion Unit and
her immediate supervisor, about a remote work arrangement,
but DAO leadership told King that such an arrangement was
unavailable.

       Several weeks later, Madden emailed Spivack to tell her
that the DAO would “separate [her] from service” effective




                               11
April 8 if she did not get vaccinated. App. 69. Spivack
remained unvaccinated, and she was terminated on April 8.3

                                G

       Spivack sued Krasner and the City in April 2022. She
claimed that the DAO’s vaccine mandate violated the First
Amendment’s Free Exercise Clause and the Pennsylvania
Religious Freedom Protection Act.

       The parties engaged in discovery, including depositions
of Krasner, Madden, Listenbee, and Spivack. After discovery
concluded, the District Court granted Krasner’s and the City’s
motions for summary judgment and denied Spivack’s cross-
motion. It held that the mandate was neutral and generally
applicable and therefore subject to rational basis review.
Applying that standard, the District Court held that the
mandate was constitutional because it was rationally related to
the DAO’s interests in curtailing the spread of COVID-19,
avoiding staffing shortages, and reducing the risk of death and
serious illness among DAO staff and the public. In the
alternative, it held that the mandate satisfied strict scrutiny.
The Court also dismissed Spivack’s state law claim for lack of

3
  If Spivack had continued her employment at the DAO, she
would have been transferred to the Municipal Court Unit in
April 2022, after she passed the February 2022 bar exam. That
job requires in-person work: ADAs in the unit spend five days
a week in court, where they interact with police officers,
defense counsel, judges, and court staff. After finishing court
proceedings in the middle of the afternoon, they work in the
office with colleagues for the rest of the day, and often into the
evening.




                               12
jurisdiction. Spivack appealed the resolution of her Free
Exercise Clause claim only.4

                                 II

       The District Court had jurisdiction over the Free
Exercise Clause claim under 

. We have
appellate jurisdiction under 

.

       “We review de novo the District Court’s resolution of
cross-motions for summary judgment.” Stradford v. Sec’y Pa.
Dep’t of Corr., 

, 73 (3d Cir. 2022). A grant of
summary judgment is appropriate only “if, when viewed in the
light most favorable to the [nonmoving party], there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.” Natale v. Camden Cnty. Corr.
Facility, 

 (3d Cir. 2003). A dispute of
material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 

(1986). At this stage, “[o]ur role is to determine whether there
is a genuine issue for trial[,] . . . not . . . to weigh the evidence




4
  Spivack appeals from the order resolving all three parties’
motions for summary judgment on the Free Exercise Clause
claim.
The City moved to be excused from appellate briefing because
it agreed with the brief filed by Krasner, and this Court granted
that motion. Accordingly, the City asserted no additional
defenses to Spivack’s claims in this appeal.




                                 13
and determine the truth of the matter.” Peroza-Benitez v.
Smith, 

 (3d Cir. 2021) (cleaned up).5

                               III

        The Free Exercise Clause of the First Amendment states
that “Congress shall make no law . . . prohibiting the free
exercise” of religion. U.S. Const. amend. I. This constitutional
provision applies to state and local governments through the
Fourteenth Amendment. See Cantwell v. Connecticut, 

 (1940). To protect religious liberty, the Free
Exercise Clause does more than guard “the right to harbor
religious beliefs inwardly and secretly.”           Kennedy v.
Bremerton Sch. Dist., 

 (2022). Instead, it
“does perhaps its most important work by protecting the ability
of those who hold religious beliefs of all kinds to live out their
faiths in daily life through the performance of (or abstention
from) physical acts.” 

 (cleaned up).

       Not all restrictions on religious exercise are
presumptively unconstitutional, however. Because many
government policies incidentally burden religious practice,
routinely exempting citizens from laws meant to apply to
everyone would risk “permit[ting] every citizen to become a
law unto himself.” Emp. Div., Dep’t of Hum. Res. of Or. v.
Smith, 

 (1990) (citation omitted). Yet we

5
  When, as here, both parties move for summary judgment,
courts “must rule on each party’s motion on an individual and
separate basis, determining, for each side, whether a judgment
may be entered in accordance with the [summary judgment]
standard.” Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 

 (3d Cir. 2016) (citation omitted).




                               14
must closely scrutinize policies that single out “religious
conduct for distinctive treatment.” Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 

 (1993); see also

 (“[I]t was historical instances of religious persecution
and intolerance that gave concern to those who drafted the Free
Exercise Clause.” (cleaned up)). The Supreme Court sought to
accommodate these competing imperatives in Employment
Division v. Smith, instructing that the Free Exercise Clause
“does not relieve an individual of the obligation to comply with
a valid and neutral law of general applicability.” 

 (cleaned up).

       Under Smith, we therefore apply sharply divergent
standards of scrutiny based on whether a law or policy is
neutral and generally applicable. Tenafly Eruv Ass’n v.
Borough of Tenafly, 

 (3d Cir. 2002).
Government policies that are both neutral and generally
applicable are subject to rational basis review—a deferential
standard that only requires the government’s action to be
rationally related to a legitimate interest. 

 at 165 n.24. By
contrast, policies that are not neutral or not generally
applicable trigger strict scrutiny—a far more exacting standard
that demands the government show that its actions were
narrowly tailored to further a compelling interest. 

 Put
differently, we evaluate neutral and generally applicable
policies under an easily satisfied, though not toothless,
standard of scrutiny, but we subject policies that fail to be
neutral or generally applicable to the closest examination.
Whether a policy is constitutional often hinges on which
standard applies.

        This case illustrates the importance of the standard. All
parties to this appeal agree that Spivack refused the COVID-19




                                15
vaccine based on her sincere religious beliefs and that the
DAO’s vaccine mandate burdened her religious exercise. The
main dispute, then, is whether the mandate is neutral and
generally applicable.

       A government policy is neutral if it does not “restrict[]
practices because of their religious nature” or evince
“intoleran[ce] of religious beliefs.” Fulton v. City of
Philadelphia, 

 (2021). And a policy is
generally applicable so long as it does not either “provid[e] a
mechanism for individualized exemptions” or “prohibit[]
religious conduct while permitting secular conduct that
undermines the government’s asserted interests in a similar
way.” 

 at 533–34 (cleaned up).

       “Neutrality and general applicability are interrelated,”
and a government policy that fails one prong of the Smith test
will often fail the other. Lukumi, 

. This is
because both inquiries inform the same fundamental question:
does the policy single out religious practices for distinctive
treatment? See Trinity Lutheran Church of Columbia, Inc. v.
Comer, 

 (2017) (“The Free Exercise
Clause . . . subjects to the strictest scrutiny laws that target the
religious for special disabilities based on their religious status.”
(cleaned up)). To answer this question, we search for anti-
religious animus on the face of the policy itself and in the
circumstances of its enactment. But we also look for subtler
signs that policymakers targeted religion. For instance,
arbitrary distinctions between religious and secular conduct
suggest anti-religious bias.              Likewise, open-ended,
discretionary exemptions permit government officials to mask
discrimination against religion. See Lighthouse Inst. for
Evangelism, Inc. v. City of Long Branch, 

 (3d




                                16
Cir. 2007) (treating a system of individualized exemptions as
“suspicious” because “certain violations may be condoned
when they occur for secular reasons but not when they occur
for religious reasons”).

        Despite their interrelatedness, the two inquiries are
analytically distinct. The neutrality inquiry, with its focus on
the purpose of or motivation behind a policy, asks us to
examine policymakers’ subjective intent. See We the Patriots
USA, Inc. v. Conn. Off. of Early Childhood Dev., 

 (2d Cir. 2023) (“We the Patriots II”) (“[T]he Supreme
Court has used a consistent cluster of terms to describe the kind
of official attitude that violates the neutrality prong of Smith—
‘hostility,’ ‘animosity,’ ‘distrust,’ ‘a negative normative
evaluation.’” (citation omitted)); Jesus Christ Is the Answer
Ministries, Inc. v. Baltimore County, 

 (4th
Cir. 2019) (describing non-neutrality as the presence of a
“discriminatory motive”). The general-applicability inquiry,
by contrast, focuses on the objective sweep of a policy: whom
it covers, whom it exempts, and how it makes that distinction.
See Fulton, 593 U.S. at 533–34.

       Here, the District Court held that the DAO’s vaccine
mandate was both neutral and generally applicable as a matter
of law, and therefore subject to rational basis review. We
disagree. The summary judgment record reveals two disputes
of material fact that affect the neutrality and general-
applicability analyses: (1) whether comments Krasner made in
a deposition evinced anti-religious bias, and (2) whether
Krasner evaluated Spivack’s exemption request under the
August 2021 policy (which provided for individualized,
discretionary religious exemptions) or the January 2022 policy




                               17
(which did not). A jury must resolve these disputes to
determine which standard applies.

                                 A

       We begin with neutrality. “Government fails to act
neutrally when it proceeds in a manner intolerant of religious
beliefs or restricts practices because of their religious nature.”
Fulton, 

. To decide whether a policy is neutral,
we first consider the text of the challenged law or policy, since
“the minimum requirement of neutrality is that a law not
discriminate on its face.” Lukumi, 

. We also
weigh “the historical background of the decision under
challenge, the specific series of events leading to the enactment
or official policy in question, and the legislative or
administrative history, including contemporaneous statements
made by members of the decisionmaking body.” 

.
Even “subtle departures” from religious neutrality are
forbidden. 

 (citation omitted).

        Both the August 2021 and January 2022 policies are
facially neutral. The August 2021 policy required “[a]ll DAO
employees . . . to provide proof of vaccination or apply for an
exemption by September 1, 2021.” App. 51; see Kane v. De
Blasio, 

, 164 (2d Cir. 2021) (holding that a vaccine
mandate was facially neutral because “[i]t applie[d] to all DOE
staff” (internal quotation marks omitted)). The January 2022
policy—which provided for only medical exemptions but
otherwise mirrored the August 2021 policy—similarly applied
to all DAO employees. See M.A. ex rel. H.R. v. Rockland Cnty.
Dep’t of Health, 

 (2d Cir. 2022) (“[The policy]
is facially neutral in that it applies to all unvaccinated children,
but for two limited exceptions . . . .”).           Neither policy
“single[d] out employees who decline vaccination on religious




                                18
grounds.” Kane, 19 F.4th at 164; cf. Combs v. Homer-Ctr. Sch.
Dist., 

 (3d Cir. 2008) (holding that a policy
was neutral because “it imposes the same requirements on
parents who home-school for secular reasons as on parents who
do so for religious reasons”). Nor did either policy “make any
reference to religion or ‘a religious practice without a secular
meaning discernable from the language or context,”’ other than
the August 2021 policy’s discussion of a religious exemption.
Doe v. San Diego Unified Sch. Dist., 

, 1177 (9th
Cir. 2021) (quoting Lukumi, 

).

        Spivack argues that, if the January 2022 policy controls,
it is not neutral because it did not allow religious exemptions.
But policies need not permit religious exemptions to be neutral,
so long as the lack of an exemption does not reflect
policymakers’ hostility toward religion. See We the Patriots
USA, Inc. v. Hochul, 

, 272, 282 (2d Cir. 2021)
(“We the Patriots I”) (holding that a vaccine mandate without
a religious exemption was neutral), cert. denied, 

 (2022); Does 1-6 v. Mills, 

 (1st Cir. 2021)
(same), cert. denied, 

 (2022).

        Nor does Krasner’s decision to eliminate the August
2021 policy’s religious exemptions in the January 2022 policy
necessarily undercut the latter policy’s neutrality. Our sister
circuits have rejected such a categorical rule, which would
force policymakers to preserve in amber any religious
exemption—no matter how the circumstances justifying it
changed—for fear of triggering strict scrutiny. See We the
Patriots II, 76 F.4th at 149–50. After all, government officials
may modify or eliminate religious exemptions for reasons
other than “intoleran[ce] of religious beliefs” or a desire to
“restrict[] [religious] practices because of their religious




                               19
nature.” Fulton, 

. Maine’s legislature, for
instance, eliminated a vaccine mandate’s religious exemption
in response to “declining vaccination rates” among healthcare
workers. Does 1-6, 

. In a similar vein, Krasner
removed the religious exemption here in part out of concern
over the then-surging Omicron variant of COVID-19. Absent
evidence of hostility toward religion, he could do so without
undermining the policy’s neutrality.

       There is, however, a dispute of material fact as to
whether anti-religious hostility tainted the DAO’s treatment of
religious exemptions. That is because a reasonable jury could
conclude, based on some evidence in the record, that the
DAO’s treatment of religious exemptions reflected
“intoleran[ce] of religious beliefs.” Fulton, 

.
During Krasner’s deposition, Spivack’s lawyers asked him
why he disagreed with the City’s vaccination policy. He
replied:

      Because it presents yet another public safety
      health obstacle in the middle of an international
      pandemic within the walls of my office[, and]
      because it increases the urgency of as many other
      people in the office as possible being fully
      vaccinated. I don’t agree with it. I think that it
      is very unfortunate that nationally, I’m not, I
      don’t want to throw any rocks at the [C]ity for
      this, they are dealing with a lot, but it is true
      across the country that there are some people
      who are just flat-out unscientific and there are
      some people who are not as concerned as they
      really should be for their fellow human beings
      and, so, we find ourselves in a situation where




                              20
      we have, basically, people who are denying
      science and are endangering others and it’s
      wrong. One of the things you may not know
      from my career is that I have sat in courtrooms
      where parents refused to provide medical care
      for their children and whose children then died,
      [and they] have been convicted of crimes and
      sent to jail for that and the law thinks that that’s
      right and the law thinks that that’s correct. Their
      basis for denying medical care[,] in some
      instances to more than one child after another
      who died, one child after another, was their
      religious beliefs. Rights are not completely
      unlimited. They can’t be completely unlimited
      and those children lost their lives because their
      parents were utterly unscientific in what they
      were doing. Government has a role and that role
      is to respect, observe[,] and elevate rights, but it
      is not to do so in a way that annihilates the
      population and kills people.

App. 348–50.

       The Supreme Court has repeatedly emphasized “the
State’s duty under the First Amendment not to base laws or
regulations on hostility to a religion or religious viewpoint,”
Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 

, 638 (2018), and cautioned that the Free Exercise Clause
forbids even “subtle departures from neutrality,” Lukumi, 

. In Masterpiece Cakeshop, for instance, it faulted
a commission adjudicating a claim against a religious objector
for “g[iving] every appearance of adjudicating [the] religious
objection based on a negative normative evaluation of the




                              21
particular justification for [the] objection and the religious
grounds for it.” 584 U.S. at 639 (cleaned up). It based this
conclusion on a commissioner’s statement that disparaged a
religious objector’s invocation of religious liberty as “one of
the most despicable pieces of rhetoric that people can use.” Id.
at 635.

       A jury must decide whether similar problems plague
Krasner’s comments. They could be read to reflect a belief that
those seeking a religious exemption are “unscientific” and
selfish (“not as concerned as they really should be for their
fellow human beings”) such that he needed to curtail religious
exemptions to prevent religious objectors from “endangering
others.” App. 349. A reasonable jury could interpret these
comments to evince hostility toward religious viewpoints that
influenced the DAO’s treatment of religious exemptions.

        Krasner’s comments merit particular scrutiny because
he was the primary decisionmaker responsible for the vaccine
mandate. Unlike cases in which the policymaker whose
statements were under scrutiny “did not have a meaningful role
in establishing or implementing the [m]andate’s
accommodations process,” Kane, 19 F.4th at 165, or “did not
actually issue the vaccination rule” in question, M.A., 

, Krasner had authority to set the terms of the mandate and
to adjudicate exemption requests.

        At the same time, a reasonable jury could find that
Krasner’s comments are not enough to show that hostility
toward religion affected the DAO’s treatment of religious
exemptions. “Assessing the relevance of statements by public
officials to the question of religious animus is often context
specific” and “fact-intensive.” 

. In the context of the
entire record, Krasner’s comments could “suggest that [he]




                              22
wanted more people to obtain the vaccine out of a deep concern
for public health,” not because he felt “animosity towards
particular religious practices or a desire to target religious
objectors . . . because of their religious beliefs.” We the
Patriots I, 17 F.4th at 284; see M.A., 

 (observing
that even “insensitive” comments could be neutral if they
“express[] a concern for the community’s health, not a hostility
towards religion”); Kane, 19 F.4th at 165 (holding that
statements expressing a “belief that religious accommodations
will be rare” did not raise neutrality concerns). He began his
response by focusing on “public safety . . . within the walls of
[his] office,” App. 348, and ended it by describing the state’s
“role . . . to respect, observe[,] and elevate rights” while
promoting public health, App. 350. Rather than disparaging
religious practices, his testimony could be read to express the
view that rights are not unlimited and that religious liberty,
while important, must sometimes yield to other deeply rooted
values, like protecting vulnerable people from illness.

       As with the contrary view, some evidence in the record
supports this reading. For one thing, Spivack admitted in her
deposition that she never heard from anyone at the DAO that
Krasner is hostile to religion. Krasner testified that he
respected Spivack’s beliefs and those of other religiously
observant people. And he claimed that his decision to disallow
religious exemptions in the January 2022 policy was rooted in
respect for religion, because he “d[id] not want to be in a
position of judging what people’s beliefs are sincere and what
people’s beliefs are not sincere.” App. 340.6 Taken together,

6
  Others at the DAO echoed this sentiment, professing respect
for Spivack’s beliefs and claiming to have never heard anyone
in the office disparage them.




                              23
this evidence could support a reasonable jury’s conclusion that
Krasner’s statements fail to show that “the mandate was
implemented with the aim of suppressing religious belief,
rather than protecting the health and safety of . . . staff[] and
the community.” San Diego Unified Sch. Dist., 19 F.4th at
1177.

        In addition, Krasner made his statements about
“unscientific” religious beliefs in August 2022, not
contemporaneously with the enactment of the August 2021 or
January 2022 policies or his adjudication of exemption
requests. See Lukumi, 

 (emphasizing the
relevance of the decisionmaker’s “contemporaneous
statements”). This temporal gap may weaken the inference
connecting these comments with any anti-religious sentiment
underpinning the treatment of religious exemptions. See
Swartz v. Sylvester, 

 (1st Cir. 2022)
(distinguishing Lukumi based on the timing and content of the
policymaker’s statements). But it does not eliminate any
inference of religious hostility as a matter of law. After-the-
fact statements are often probative of past motive, and courts
have considered them in their neutrality analyses. See, e.g.,
M.A., 

 (evaluating comments that “were made
several weeks after the [policy] was rescinded and in a different
context”); We the Patriots I, 17 F.4th at 283 (weighing
comments made the month after a policy was enacted).

       With this backdrop, Krasner’s comments are ultimately
“susceptible of different interpretations.”    Masterpiece
Cakeshop, 584 U.S. at 635. A reasonable jury could find that
they evince hostility toward religion that undermines the
neutrality of the August 2021 and January 2022 policies. A
reasonable jury could also reach the opposite conclusion.




                               24
Accordingly, neither party is entitled to summary judgment on
neutrality.

                               B

       Even if a government policy is neutral, it must also be
generally applicable to avoid strict scrutiny. A policy is not
generally applicable if it either: (1) “invites the government to
consider the particular reasons for a person’s conduct by
providing a mechanism for individualized exemptions”; or
(2) “prohibits religious conduct while permitting secular
conduct that undermines the government’s asserted interests in
a similar way.” Fulton, 593 U.S. at 533–34 (cleaned up).
Spivack claims that the DAO’s mandate fails in both respects.

                               1

      Spivack first argues that the vaccine mandate is not
generally applicable because it allowed for discretionary
exemptions. Whether she is right depends on which version of
the mandate controls.

        The August 2021 policy provides for two exemptions: a
medical exemption for employees with “medical condition[s]
that [are] a contraindication to the COVID-19 vaccine” and a
religious exemption for “employees with verifiable, sincerely
held religious beliefs, observances, or practices that conflict
with getting vaccinated.” App. 52.7 It also states that “[t]he
DAO makes determinations about requested accommodations


7
 The August 2021 policy also sets out a disability exemption,
which appears to be subsumed under the broader medical
exemption.




                               25
and exemptions on a case-by-case basis considering various
factors and based on an individualized assessment in each
situation.” Id.

       These exemptions are different from the open-ended
exemptions that courts have held trigger strict scrutiny. See
Fulton, 

 (holding that strict scrutiny applied
because the policy allowed an official to grant exemptions at
“his/her sole discretion”); Blackhawk v. Pennsylvania, 

 (3d Cir. 2004) (Alito, J.) (holding that an
exemption for “hardship” or “extraordinary circumstances”
required strict scrutiny); see also Sherbert v. Verner, 

 (1963) (evaluating a “good cause” exemption).
Unlike the defined exemptions here, those exemptions
contained no criteria meaningfully cabining an official’s
discretion. See Fulton, 

 (characterizing the
exemption in that case as “entirely discretionary”).

        Still, the August 2021 policy—and evidence of that
policy in operation, including the multi-question form Spivack
completed in December 2021—makes clear that Krasner had
significant discretion to evaluate religious exemption requests.
See Kane, 19 F.4th at 169 (holding that a policy was not
generally applicable when officials “reviewing . . . requests for
religious accommodations had substantial discretion over
whether to grant those requests” and applied standards
inconsistently). Under one interpretation of the record, he used
that considerable discretion to deny Spivack’s request. A
reasonable jury could conclude, in other words, that the DAO
created, on paper, a mechanism for individualized exemptions
but then, in practice, declined “to extend [it] to cases of




                               26
religious hardship.” Fulton, 

 (internal quotation
marks omitted). This practice would trigger strict scrutiny.8


8
  The mere provision of a religious exemption does not itself
trigger strict scrutiny. See Phillips v. City of New York, 

 (2d Cir. 2015) (“[A policy with a religious
exemption] goes beyond what the Constitution requires.”).
Even when not constitutionally required, religious exemptions
are “part of a mutually beneficial play in the joints between the
Establishment Clause and Free Exercise Clause.” We the
Patriots II, 

 (cleaned up). What does trigger
strict scrutiny, however, is a policy of individualized,
discretionary exemptions in which a government official may
unilaterally evaluate “the particular reasons for a person’s
conduct.” Fulton, 

; see also Does 1-11 v. Bd.
of Regents of Univ. of Colo., 

, 1273 (10th Cir.
2024) (holding that a policy was not generally applicable when
the government “considered the particular reasons underlying
the applicant’s religious beliefs and provided individualized
exemptions to applicants whose religious beliefs, in [its]
discretion, justified an exemption” (cleaned up)); We the
Patriots I, 17 F.4th at 290 n.29 (observing that a general-
applicability problem may arise when a policy “afford[s] so
much discretion to rule on individual cases, and so few
standards govern[] the exercise of that discretion, as to leave
room for the [government] to apply potentially discriminatory
standards” (citing Dahl v. Bd. of Trustees of W. Mich. Univ.,

 (6th Cir. 2021) (per curiam))). We do not doubt
that government actors need to engage in some level of review
to evaluate religious exemption requests and are entitled to
confirm that such requests stem from a sincerely held religious




                               27
        But Krasner claims that Spivack was disciplined under
a later policy—the January 2022 policy, which eliminated the
religious exemption altogether and kept only the medical
exemption.      He testified that he did not engage in
individualized review of religious exemption requests and that
religious exemptions were unavailable as a matter of policy—
that is, he lacked any discretion over those requests—by the
time Spivack’s request was denied.9

       That Krasner continued to evaluate medical exemption
requests under the January 2022 policy does not undermine
that policy’s general applicability. Medical exemptions were
a separate and objectively defined category of exemption

belief. Frazee v. Ill. Dep’t of Emp. Sec., 

(1989) (acknowledging the “difficulty of distinguishing
between religious and secular convictions and . . . determining
whether a professed belief is sincerely held”); Wisconsin v.
Yoder, 

 (1972) (“[T]o have the protection of
the Religion Clauses, the claims must be rooted in religious
belief.”). But a reasonable jury could conclude that the DAO’s
August 2021 policy, including the December 2021 exemption
form, authorized “individualized assessments” with no
apparent guidelines or guardrails. App. 52. Should the jury
reach that conclusion, strict scrutiny would apply.
9
  Though Spivack invokes Krasner’s discretion to grant or deny
exemption requests, that argument conflates his power as DA
to administer his office with the terms of the policy. It is
undisputed that Krasner had significant authority to manage
the DAO and set officewide policies, including vaccination
policies. But the terms of the January 2022 policy meant that
he no longer could evaluate religious exemption requests on an
individualized basis.




                              28
requests. See We the Patriots I, 17 F.4th at 288–89 (holding
that a medical exemption was not an individualized,
discretionary exemption); We the Patriots II, 76 F.4th at 150–
51 (explaining that medical objections do not afford the
government meaningful discretion); Does 1-6, 

(holding that a “single objective exemption” did not undermine
general applicability). With the January 2022 policy, Krasner
divested himself of discretion to evaluate employees’ religious
exemption claims, and maintained a separate, narrow medical
exemption with objective criteria.

        But whether Krasner evaluated Spivack’s request under
the January 2022 policy or the August 2021 policy remains a
dispute of material fact. The District Court held that Spivack
was subject to the January 2022 policy. There is, no doubt,
significant evidence supporting that conclusion. Krasner
testified that he did not perform an individualized assessment
of the religious exemption requests and that he updated the
policy before reviewing any. Madden—Krasner’s main
advisor on COVID-19 policy—confirmed that account,
claiming that the policy had changed and that, as a result, no
one performed an individualized assessment of Spivack’s
exemption request.

        Yet evidence in the record could lead a reasonable jury
to find that Spivack’s exemption request was considered under
the earlier policy. For one thing, the January 2022 policy was
unwritten and was never communicated in any form to DAO
staff. This omission was notable because the DAO typically
informed its employees of changes to its COVID-19 policies
in writing. Nothing in the record explains this striking
oversight. And Listenbee, the First Assistant DA, testified that
the August 2021 policy—including its individualized religious




                              29
exemption process—was still in effect when Krasner denied
Spivack’s exemption request.10 A reasonable jury could
conclude, therefore, that Krasner’s January 2022 decision to
deny all religious exemptions was not a new “policy” at all, but
rather an exercise of his nearly unbridled discretion under the
August 2021 policy.11 There is thus a dispute of material fact
as to which policy controlled and, by extension, whether the
policy provided for individualized exemptions at Krasner’s
discretion.

                               2

      Spivack next argues that the vaccine mandate is not
generally applicable because it “prohibits religious conduct
while permitting secular conduct that undermines the

10
   Krasner urges us to discount this testimony, arguing that
Listenbee was unaware of the changed policy. But it is for the
jury—not a court at the summary judgment stage—to assign
the proper weight to this evidence.
11
   Krasner’s conflicting testimony illustrates this point. Some
of his testimony suggests that the August 2021 policy never
went away, and that he maintained discretion to grant
individual religious exemption requests. He claimed, for
instance, that if Spivack had requested a remote work
arrangement, “that is something that would have been seriously
considered in retrospect; that is something that we would have
granted.” App. 301. But, in the same deposition, he also said
that the “categorical decision” not to grant religious
exemptions “was a final decision,” App. 304, and that
employees “are not being hired anymore with consideration of
a religious accommodation,” App. 275. A jury must evaluate
this evidence at trial.




                              30
government’s asserted interests in a similar way.” Fulton, 

. She claims that two carveouts from the mandate
violate this rule: its exclusion of unionized DAO employees,
and its medical exemption. But neither carveout undermines
the government’s asserted interests like a religious exemption
would.

                                i

        We can make quick work of the carveout for unionized
employees. The record is clear that the August 2021 and
January 2022 policies did not apply to unionized DAO
employees because Krasner had no authority to require that
they be vaccinated. Instead, those employees were subject to
separate vaccination requirements—along with separate
exemption processes—set out in collective bargaining
agreements between their unions and the City. Krasner
testified that he would have included unionized employees in
the mandate if he could have, and he even expressed frustration
about their exclusion. He cannot be faulted for complying with
collective bargaining agreements that he had no role in
negotiating or implementing. Cf. Kane, 19 F.4th at 165
(considering the policymaker’s role and authority in the Smith
analysis).12     Because Krasner lacked authority to set


12
   Spivack contends that the Ninth Circuit’s decision in Bacon
v. Woodward supports a contrary conclusion. 

(9th Cir. 2024). The complaint in that case alleged that the City
of Spokane required its firefighters to be vaccinated and denied
all religious exemption requests. At the same time, Spokane
used firefighters from neighboring towns—some of which
granted exemptions to their respective vaccine requirements—




                               31
vaccination policy for unionized employees, their exclusion
from the August 2021 and January 2022 policies does not
undermine either policy’s general applicability.



for backup services within its city limits through mutual aid
agreements. 

. The majority of the panel held that the
complaint plausibly alleged a Free Exercise Clause violation
because Spokane’s implementation of the policy was not
generally applicable: it “exempted certain firefighters based on
a secular criterion—being a member of a neighboring
department—while holding firefighters who objected to
vaccination on purely religious grounds to a higher standard.”

. The third panel member disagreed, concluding that
“[t]he complaint alleges that [Spokane] applied the [policy] to
[its] employees uniformly” and that other towns’ choices to
adopt different policies did not disturb the general applicability
of Spokane’s policy. 

 (Hawkins, J., dissenting). The
dissent’s reasoning applies here. Krasner set vaccination
policy for the only group he could: the at-will employees. He
cannot be held responsible for the inevitable reality that the
DAO’s at-will employees will interact with other people (i.e.,
members of the police union and the public employee union)
whose vaccination statuses are governed by other
decisionmakers’ policies. And to the extent that the Bacon
majority relied on the fungibility of firefighters from Spokane
and the neighboring towns, see 

 (stating that, by
terminating its own unvaccinated firefighters, Spokane
effectively chose to use other towns’ unvaccinated firefighters
to “fill the gap[]”), no such dynamic exists here. Nothing in
the record suggests that terminated at-will DAO employees
will be replaced by unionized employees.




                               32
                                ii

       The medical exemption requires closer examination.
Under the August 2021 policy, employees were exempt if they
had “any . . . medical condition that is a contraindication to the
COVID-19 vaccine.” App. 52. The January 2022 policy
applied a similarly objective but slightly more stringent
standard, exempting employees who could “demonstrate[] that
the vaccine presented a verified risk of serious illness or
death.” App. 487.

        The critical question is whether the medical exemptions
in these policies are comparable to a religious exemption—in
other words, whether the “preferential treatment of secular
behavior” in the form of a medical exemption “affect[s] the
regulation’s purpose in the same way as the prohibited
religious behavior.” Lighthouse Inst., 

.
“[T]reat[ing] any comparable secular activity more favorably
than religious exercise” is enough to violate the general-
applicability prong of Smith and trigger strict scrutiny. Tandon
v. Newsom, 

 (2021). And “whether two
activities are comparable for purposes of the Free Exercise
Clause must be judged against the asserted government interest
that justifies the regulation at issue.” 

 So we must determine
(1) what the government’s asserted interests are, and
(2) whether the medical exemption undermines those interests
like a religious exemption would.

        At the first step, Spivack and Krasner put forward
competing characterizations of the government’s interests.
Krasner says that the mandate advances the DAO’s interests in
employee and public health and safety. Spivack, by contrast,
urges us to treat reducing the spread of COVID-19 in the office
as the relevant interest.




                               33
        We reject Spivack’s cramped characterization of the
DAO’s interests. For one thing, our focus on “the asserted
government interest,” Tandon, 

 (emphasis
added), indicates that we give some deference to how the
government characterizes its own interests. While we need not
credit interests that lack support in the record (or those that the
record reveals are pretextual), our analysis must acknowledge
the government’s prerogative to decide which interests to
emphasize in policymaking. See We the Patriots I, 17 F.4th at
285 (“Plaintiffs do not point to any evidence suggesting that
the interests asserted are pretextual or should otherwise be
disregarded . . . .”); We the Patriots II, 76 F.4th at 151–52
(accepting a government interest because it was supported by
the record and was not pretextual); San Diego Unified Sch.
Dist., 19 F.4th at 1178 n.5 (focusing on “the interest the
[government] emphasizes most frequently in the record”). We
also must account for the reality that the government often acts
for several interrelated reasons. Does 1-6, 

(crediting the state’s multiple, “mutually reinforcing”
interests); We the Patriots II, 

 n.20 (explaining
that “it is not contradictory” for the government to focus on
multiple related interests). We will therefore consider all
legitimate interests asserted by the government, so long as the
record supports them.

       Under this standard, there are three interconnected
government interests that the DAO’s policies further:
(1) preventing the spread of COVID-19, (2) ensuring adequate
staffing in the office, and (3) protecting the health and safety
of DAO employees and the public. Though we disaggregate
these interests for clarity, they are mutually reinforcing: the
DAO wanted to suppress the spread of a harmful infectious
disease to protect the health of its employees and their loved




                                34
ones, the people they interact with in the criminal justice
system, and the public; and to prevent an outbreak that could
hobble the office.

       All these interests have ample support in the record.
Krasner repeatedly testified about his concern for employee
and public health, his desire to make the workplace as safe as
possible and prevent COVID-19 outbreaks, and his belief that
employee absences would affect the functioning of the office.
The text of the August 2021 policy confirms these interlocking
concerns, proclaiming that “[t]he DA’s office is setting a
higher standard of health and safety due to the nature of our
work, which requires many of us to work indoors and to
interface with the public on a regular basis in our roles as public
servants.” App. 51. No evidence suggests that any of these
interests are pretextual, post hoc rationalizations.

       Considering this array of interests, we can draw “a
principled distinction . . . between the prohibited religious
behavior and its secular comparator in terms of their effects
on” those interests. Lighthouse Inst., 

. Unlike
a religious exemption, a medical exemption furthers the
DAO’s interest in keeping its employees safe and healthy by
allowing employees for whom the COVID-19 vaccine would
cause death or illness to abstain from vaccination. See App.
333 (“[A]llowing [the recipient of a medical exemption] that
exemption goes directly to our goal rather than against it.”).
We join several of our sister circuits in recognizing this
common-sense distinction. Does 1-6, 

; We the
Patriots I, 17 F.4th at 285; We the Patriots II, 

;
San Diego Unified Sch. Dist., 19 F.4th at 1178. After all, the
DAO “would hardly be protecting its [employees] if it required




                                35
them to accept medically contraindicated treatments.” Does 1-
6, 

.13

       Our own general-applicability precedent supports this
conclusion. Consistent with the Supreme Court’s guidance, we
have repeatedly held that a policy’s general applicability turns
on whether it treats similar religious and secular behavior
similarly. In Fraternal Order of Police Newark Lodge No. 12
v. City of Newark, for instance, we found that a police
department’s facial hair prohibition was not generally

13
   In addition, the record indicates that a religious exemption
would undermine the government’s interest in preventing the
spread of COVID-19 and maintaining adequate staffing to a
greater extent than a medical exemption. See Blackhawk, 

 (comparing the “degree” to which religious and
secular exemptions undermine the purpose of a policy); We the
Patriots I, 17 F.4th at 285–86 (considering whether secular
exemptions are “at least as harmful” to the purpose of a policy
as religious exemptions). Religious exemption requests
outnumbered medical exemptions eight to one. Exemption
requests for unionized employees, which were adjudicated by
the City, reveal a similar trend. As a result, far more employees
would be exempt from vaccination under a religious exemption
than under a medical exemption, increasing the risk of
spreading COVID-19 and causing an outbreak in the office.
See We the Patriots I, 17 F.4th at 287 (considering the relative
number of religious and medical exemptions in the
comparability analysis); San Diego Unified Sch. Dist., 19 F.4th
at 1178 (same); Lowe v. Mills, 

 (1st Cir. 2023)
(“[I]t may be that medical exemptions are likely to be rarer,
more time limited, or more geographically diffuse than
religious exemptions . . . .”).




                               36
applicable. 

 (3d Cir. 1999) (Alito, J.). The
department said that it could not exempt officers who wished
to grow beards for religious reasons because it wanted its
officers to have a uniform, clean-shaven look. Id. at 360. But
it offered a medical exemption to officers with skin conditions,
whose beards broke with the department’s desired uniformity
just like religious objectors’ would. Id. at 366. The department
claimed that religious behavior would undermine its interest in
aesthetic uniformity, but then permitted secular conduct that
did just that.14

       The same problem afflicted a town’s anti-sign
ordinance in Tenafly Eruv Association v. Borough of Tenafly,

 (3d Cir. 2002). Citing the ordinance, the town
prohibited religious markers on telephone poles while
maintaining a de facto exemption for holiday decorations, lost-
dog posters, and other neighborhood notices. 

.

14
  Some have read Fraternal Order of Police to create a blanket
rule that medical exemptions render a policy not generally
applicable. See Bd. of Regents of Univ. of Colo., 100 F.4th at
1277 (citing Fraternal Order of Police to hold that “a
government policy that grants an exemption for medical
reasons but denies the same exemption for religious reasons is
not generally applicable” (internal quotation marks omitted)).
That interpretation vastly overstates the case’s holding. We
held that the medical exemption at issue triggered strict
scrutiny only because it “undoubtedly undermine[d]” the
government’s asserted interest in the same way a religious
exemption would. Fraternal Ord. of Police, 170 F.3d at 366;
see also Does 1-6, 

 (distinguishing Fraternal
Order of Police on this basis); We the Patriots II, 

 (same).




                              37
Though it claimed that religious markers would cause visual
clutter, the town did not forbid the equally obtrusive secular
signs. 

 at 167–68. Because the ordinance carved out secular
behavior while prohibiting comparable religious behavior, we
held that it was not generally applicable.

        We repeated this rule in Blackhawk v. Pennsylvania,

 (3d Cir. 2004) (Alito, J.). In that case,
Pennsylvania declined to grant religious exemptions to a law
that imposed an annual fee on anyone keeping wild animals in
captivity. 

. But the state exempted zoos and circuses
from the fee regime, which undermined its interests in raising
revenue and discouraging citizens from capturing wild animals
just as much as a religious exemption would. 

.

        We applied this same reasoning but reached the
opposite result in Lighthouse Institute for Evangelism, Inc. v.
City of Long Branch, 

 (3d Cir. 2007). There, a
city declined to grant a religious exemption to a zoning
ordinance, but exempted restaurants, retail stores, and other
businesses. 

. The church that was denied an
exemption argued that the ordinance was not generally
applicable. But we rejected that argument: unlike a religious
exemption, the exemption for restaurants and similar
businesses furthered the ordinance’s purpose of revitalizing the
city’s downtown area. 

       The lesson of these cases is clear.            When the
government says that it cannot exempt religious exercise from
a policy because doing so would undermine an important
interest, but then exempts other groups or actions that
undermine that same interest in the same way, its arbitrary
distinction between religious and secular behavior raises an
inference that it has targeted religious practice for distinctive




                               38
treatment. But when a religious exemption would affect the
government’s interests in a different way or to a greater extent
than another type of exemption, we draw no such inference.

       That is the case here. Both the August 2021 and January
2022 policies applied to all employees over whom Krasner had
policymaking authority, with a narrow, objectively defined
exemption for employees whose health the vaccine would
endanger. The DAO carved out that minor exemption to
further—not undercut—its interest in employee health and
safety. The medical exemption therefore does not undermine
either policy’s general applicability.15

                               C

      On remand, a jury must resolve which policy Krasner
used when he denied Spivack’s religious exemption request

15
   This conclusion aligns with Jacobson v. Massachusetts,
which held that a vaccine mandate with only a limited medical
exemption was constitutional under a standard akin to rational
basis review, 

 (1905), and which is still
good law, see Child.’s Health Def., Inc. v. Rutgers, the State
Univ. of N.J., 

 (3d Cir. 2024) (concluding “that
Jacobson controls” and that “[t]he [Supreme] Court’s more
recent pronouncements confirm [its] vitality”); Phillips, 

 (citing “persuasive dictum” from Jacobson to hold
that “mandatory vaccination as a condition for admission to
school does not violate the Free Exercise Clause”); Nikolao v.
Lyon, 

 (6th Cir. 2017) (citing Jacobson for
its holding that “compulsory vaccination laws with only
medical exemptions do not violate any federal constitutional
right”).




                              39
and, by extension, whether the applicable policy provided for
discretionary, individualized exemptions. The jury must also
decide whether the policy was neutral given Krasner’s
deposition testimony. The answers to these questions govern
the applicable standard of scrutiny.

       If the DAO’s vaccine mandate is both neutral and
generally applicable, it is subject to rational basis review.
Under this deferential standard, a government action is
constitutional if it is “rationally related to a legitimate
government objective.” Tenafly Eruv Ass’n, 309 F.3d at 165
n.24.

       Both the August 2021 and January 2022 policies would
easily meet this standard. All the interests put forward by the
DAO—protecting employee and public health, preventing the
spread of COVID-19, maintaining staffing levels to ensure the
proper functioning of the DAO and the criminal justice
system—are legitimate. And both policies are rationally
related to those objectives because they ensure that a greater
proportion of the office is vaccinated and therefore less likely
to contract and spread the virus, experience severe illness, or
miss work. See We the Patriots II, 

 (holding
that a vaccine mandate without a religious exemption is
rationally related to the government’s interest in public health
“because it seeks to maximize the number of
[people] . . . vaccinated”).

       By contrast, if the mandate is not both neutral and
generally applicable, strict scrutiny applies. Under this
demanding standard, “[a] government policy can
survive . . . only if it advances interests of the highest order and
is narrowly tailored to achieve those interests.” Fulton, 

 (cleaned up). “Put another way, so long as the




                                40
government can achieve its interests in a manner that does not
burden religion, it must do so.” 

       The interests advanced by the August 2021 and January
2022 policies are compelling. “Stemming the spread of
COVID-19 is unquestionably a compelling interest.” Roman
Cath. Diocese of Brooklyn v. Cuomo, 

 (2020).
So are the related interests of “protecting public health against
a deadly virus,” Does 1-6, 

, and ensuring
adequate staffing of an essential government office.

       But the Supreme Court has instructed us not to frame
government objectives “at a high level of generality”—instead,
we “must scrutinize the asserted harm of granting specific
exemptions to particular religious claimants.” Fulton, 

 (cleaned up). “The question, then, is not whether
the [DAO] has a compelling interest in enforcing its
[vaccination] policies generally, but whether it has such an
interest in denying an exception to [Spivack].” 

 Relatedly,
the DAO must show that its policy was narrowly tailored,
which “requires the government to demonstrate that a policy is
the least restrictive means of achieving its objective.” Kane,
19 F.4th at 169 (cleaned up).

        A jury must determine whether Krasner has cleared this
high bar. The record reveals that Krasner considered
alternatives to a vaccine mandate as a general matter—that is,
for all DAO employees—and determined that they would be
insufficient. But it does not resolve whether the DAO could
have accommodated Spivack or other similarly situated
religious objectors. See Lowe, 

 (holding that a
document discussing alternatives to a vaccination requirement




                               41
in general terms did not satisfy strict scrutiny).16 Unanswered
factual questions pervade this inquiry. How many similar
exemption requests would the DAO need to grant? Would
other, less restrictive mitigation measures for employees with
religious exemptions (like giving them their own offices,
enforcing a masking requirement, or imposing a testing regime
only for exempt employees) have achieved the office’s
objectives? If strict scrutiny applies, a jury must consider these
questions and decide whether denying Spivack and others like
her religious exemptions was narrowly tailored to serve a
compelling interest.

                         *      *      *

       For the reasons set forth above, we will vacate the
District Court’s order and remand the case for trial.




16
    Like the Second Circuit, we reject the notion “that the
Supreme Court’s precedents require[] us to confine our
analysis to . . . each unvaccinated individual.” We the Patriots
II, 

 (cleaned up); see also Lowe, 

(agreeing with the Second Circuit on this point). Government
officials make policy in the aggregate. If the DAO granted
Spivack an exemption, it would presumably grant the same
exemption to similarly situated religious claimants. We may
therefore consider the cumulative effect of such a policy in the
strict scrutiny analysis.




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