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 MONTGOMERYREEVES, Circuit Judges

(Opinion filed: July 29, 2024)

________________

Justin Butterfield

David J. Hacker
2

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 
3

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’ motionsfor 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 
4

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 ‘atwill,’ 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 
5

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.” 
6

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 inperson 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.
7

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 
8

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-bycase. When the City approved an exemption, it would forward 

that determination to the relevant employee’s department. 
9

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.
10

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 
11

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 
12

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 crossmotion. 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.
13

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 28 U.S.C. § 1331. We have 

appellate jurisdiction under 28 U.S.C. § 1291.

“We review de novo the District Court’s resolution of 

cross-motions for summary judgment.” Stradford v. Sec’y Pa. 

Dep’t of Corr., 53 F.4th 67, 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, 318 F.3d 575, 580 (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., 477 U.S. 242, 248 

(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.
14

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

Smith, 994 F.3d 157, 164 (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, 310 

U.S. 296, 303 (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., 597 U.S. 507, 524 (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.” Id. (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, 494 U.S. 872, 879 (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., 835 

F.3d 388, 402 (3d Cir. 2016) (citation omitted).
15

must closely scrutinize policies that single out “religious 

conduct for distinctive treatment.” Church of Lukumi Babalu 

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); see also 

id. at 532 (“[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.” 494 U.S. at 

879 (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, 309 F.3d 144, 165 (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. Id. 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. Id. 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 
16

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, 593 U.S. 522, 533 (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.” Id. 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, 508 U.S. at 531. 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, 582 U.S. 449, 458 (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 antireligious 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, 510 F.3d 253, 276 (3d 
17

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., 76 F.4th 130, 

149 (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, 915 F.3d 256, 265 (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 generalapplicability 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 
18

(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, 593 U.S. at 533. 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, 508 U.S. at 533. 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.” Id. at 540. 

Even “subtle departures” from religious neutrality are 

forbidden. Id. at 534 (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, 19 F.4th 152, 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, 53 F.4th 29, 37 (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 
19

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

Dist., 540 F.3d 231, 242 (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., 19 F.4th 1173, 1177 (9th 

Cir. 2021) (quoting Lukumi, 508 U.S. at 533).

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, 17 F.4th 266, 272, 282 (2d Cir. 2021)

(“We the Patriots I”) (holding that a vaccine mandate without 

a religious exemption was neutral), cert. denied, 142 S. Ct. 

2569 (2022); Does 1-6 v. Mills, 16 F.4th 20, 24 (1st Cir. 2021) 

(same), cert. denied, 142 S. Ct. 1112 (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 
20

nature.” Fulton, 593 U.S. at 533. Maine’s legislature, for 

instance, eliminated a vaccine mandate’s religious exemption 

in response to “declining vaccination rates” among healthcare 

workers. Does 1-6, 16 F.4th at 24. 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, 593 U.S. at 533. 

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 
21

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, 584 U.S. 

617, 638 (2018), and cautioned that the Free Exercise Clause 

forbids even “subtle departures from neutrality,” Lukumi, 508 

U.S. at 534. 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 
22

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., 53 F.4th 

at 38, 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.” Id. at 37. In the context of the 

entire record, Krasner’s comments could “suggest that [he] 
23

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., 53 F.4th at 38 (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.
24

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, 508 U.S. at 540 (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, 53 F.4th 693, 701 (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-thefact statements are often probative of past motive, and courts 

have considered them in their neutrality analyses. See, e.g.,

M.A., 53 F.4th at 37 (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. 
25

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.
26

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, 593 U.S. at 535 (holding that strict scrutiny applied 

because the policy allowed an official to grant exemptions at 

“his/her sole discretion”); Blackhawk v. Pennsylvania, 381 

F.3d 202, 209 (3d Cir. 2004) (Alito, J.) (holding that an 

exemption for “hardship” or “extraordinary circumstances” 

required strict scrutiny); see also Sherbert v. Verner, 374 U.S. 

398, 401 (1963) (evaluating a “good cause” exemption). 

Unlike the defined exemptions here, those exemptions 

contained no criteria meaningfully cabining an official’s 

discretion. See Fulton, 593 U.S. at 536 (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 
27

religious hardship.” Fulton, 593 U.S. at 535 (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, 775 

F.3d 538, 543 (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, 76 F.4th at 150 (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, 593 U.S. at 533; see also Does 1-11 v. Bd. 

of Regents of Univ. of Colo., 100 F.4th 1251, 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 generalapplicability 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., 

15 F.4th 728 (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 
28

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., 489 U.S. 829, 833 

(1989) (acknowledging the “difficulty of distinguishing 

between religious and secular convictions and . . . determining 

whether a professed belief is sincerely held”); Wisconsin v. 

Yoder, 406 U.S. 205, 215 (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.
29

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, 16 F.4th at 30 

(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 
30

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.
31

government’s asserted interests in a similar way.” Fulton, 593 

U.S. at 534. 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. 104 F.4th 744 

(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—
32

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. Id. at 748. 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.”

Id. at 751. 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. Id. at 754 (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 id. at 751 (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.
33

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., 510 F.3d at 266. 

“[T]reat[ing] any comparable secular activity more favorably 

than religious exercise” is enough to violate the generalapplicability prong of Smith and trigger strict scrutiny. Tandon 

v. Newsom, 593 U.S. 61, 62 (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.” Id. 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.
34

We reject Spivack’s cramped characterization of the 

DAO’s interests. For one thing, our focus on “the asserted

government interest,” Tandon, 593 U.S. at 62 (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, 16 F.4th at 31 

(crediting the state’s multiple, “mutually reinforcing” 

interests); We the Patriots II, 76 F.4th at 152 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 
35

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., 510 F.3d at 266. 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, 16 F.4th at 34; We the 

Patriots I, 17 F.4th at 285; We the Patriots II, 76 F.4th at 153; 

San Diego Unified Sch. Dist., 19 F.4th at 1178. After all, the

DAO “would hardly be protecting its [employees] if it required 
36

them to accept medically contraindicated treatments.” Does 1-

6, 16 F.4th at 34.13

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, 381 

F.3d at 209 (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, 68 F.4th 706, 715 (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 . . . .”).
37

applicable. 170 F.3d 359 (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,

309 F.3d 144 (3d Cir. 2002). Citing the ordinance, the town 

prohibited religious markers on telephone poles while 

maintaining a de facto exemption for holiday decorations, lostdog posters, and other neighborhood notices. Id. at 151. 

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, 16 F.4th at 33 (distinguishing Fraternal 

Order of Police on this basis); We the Patriots II, 76 F.4th at 

154 (same).
38

Though it claimed that religious markers would cause visual 

clutter, the town did not forbid the equally obtrusive secular 

signs. Id. 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, 

381 F.3d 202 (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. Id. at 205. 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. Id. at 211.

We applied this same reasoning but reached the 

opposite result in Lighthouse Institute for Evangelism, Inc. v. 

City of Long Branch, 510 F.3d 253 (3d Cir. 2007). There, a 

city declined to grant a religious exemption to a zoning 

ordinance, but exempted restaurants, retail stores, and other 

businesses. Id. at 276. 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. Id.

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 
39

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, 197 U.S. 11, 12, 25 (1905), and which is still 

good law, see Child.’s Health Def., Inc. v. Rutgers, the State 

Univ. of N.J., 93 F.4th 66, 80 (3d Cir. 2024) (concluding “that 

Jacobson controls” and that “[t]he [Supreme] Court’s more 

recent pronouncements confirm [its] vitality”); Phillips, 775 

F.3d at 543 (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, 875 F.3d 310, 316 (6th Cir. 2017) (citing Jacobson for 

its holding that “compulsory vaccination laws with only 

medical exemptions do not violate any federal constitutional 

right”).
40

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, 76 F.4th at 156 (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, 593 

U.S. at 541 (cleaned up). “Put another way, so long as the 
41

government can achieve its interests in a manner that does not 

burden religion, it must do so.” Id.

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, 592 U.S. 14, 18 (2020). 

So are the related interests of “protecting public health against 

a deadly virus,” Does 1-6, 16 F.4th at 32, 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, 593 

U.S. at 541 (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].” Id. 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, 68 F.4th at 718 (holding that a 

document discussing alternatives to a vaccination requirement 
42

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, 76 F.4th at 152 (cleaned up); see also Lowe, 68 F.4th at 716 

(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.