'Relentlessly ... pursue justice': Firm vows to sue Artis—Naples over musician vax mandate

A law firm known for its high-profile religious cases has presented Artis—Naples with an ultimatum: Rescind its imminent dismissal of three unvaccinated Naples Philharmonic musicians or be sued.

Liberty Counsel last week released a letter dated May 16 that was sent to both Artis—Naples and Quarles and Brady, the arts organization's law firm, demanding, among other things, that it:

• Immediately allow the employees to return at their previous level and pay, "subject to reasonable periodic testing requirements." Those tests under Florida statutes must be paid by the employer.

• Give them equal contract renewal opportunities available to them before as they were placed on leave, and not discriminate or retaliate on the basis of their non-vaccination status.

• Reimburse them for pay and benefits denied since October 2021, including a 30 percent compensation reduction when they were placed on leave for refusing vaccination.

Quarles and Brady did not return a request for an interview or statement on the Liberty Counsel ultimatum. Artis—Naples offered its own statement:

“To date, we have not received a claim, and the allegations as reported are without merit. Artis—Naples continues to prioritize the safety, health and wellness of our patrons, musicians, staff, and the community at large, and 99% of employees are in full compliance of our COVID-19 protocols," Artis—Naples said in the statement.

"A committee consisting of fellow musicians, management, and board representatives was formed early on to develop protective protocols and has unanimously agreed to uphold these safety measures. The few musicians who are unvaccinated were offered a number of generous options, and they have refused every one.”

Those options, according to Liberty Counsel's letter, were vaccination, a year of unpaid leave or termination as of June 30.

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Vaccination fight cites two laws

The 15-page letter gave Artis—Naples, parent organization of the Naples Philharmonic, one week to meet the demands without the law firm proceeding with official action.

Click here to read the text of the letter.

"Once we take on a cause, we relentlessly and aggressively pursue justice, and we overcome any setbacks, no matter how long and expensive the road to ultimate justice might be," the letter stated.

The Liberty Counsel letter also says the three musicians involved, whose names were redacted in the letter, objected to vaccination on religious grounds. It cites an objection that cells from aborted fetuses have been used in the development or production of the vaccine.

The firm is also planning action to prove Artis—Naples violated Florida Statute 381.00317, a pandemic-related regulation adopted last year at the behest of Gov. Ron DeSantis. It requires employers to honor employees' decisions to refuse vaccination on the basis of their religious beliefs or simply by agreement to undergo periodic testing.

Liberty Counsel's letter made clear that it will be asking for attorney's fees, and pointed out what the letter says are multimillion-dollar ramifications of other suits it has won. Among its cases are a decision that brought it $1.35 million in fees against the state of California and Gov. Gavin Newsom for discriminatory COVID-19 restrictions on religious worship over social distancing requirements.

The latest case brought by Liberty Counsel was decided, 9-0, by the U.S. Supreme Court. It ruled a Christian cross flag could be flown as one of the discretionary flags the City of Boston accepts to fly for a day beside its national and state flags.

The case moved up through lower courts over five years, but Liberty Counsel gained support at the Supreme Court level with the Biden administration and the American Civil Liberties Union. Both filed briefs supporting the plaintiffs, Hal Shurtleff and Camp Constitution.

If the Florida-based Liberty Counsel files suit against Artis—Naples, it would be the second anti-vaccination litigation it has taken against an organization that is not governmental. Liberty Counsel successfully defended employees against NorthShore Health Care in Chicago in a similar sued over religious objections to vaccination.

Its letter to Artis—Naples said it is expecting attorney fees in seven figures from Boston for its five years of work in that case.

Firm a child of Liberty U., with pockets

Liberty Counsel calls its pro bono work as much "causes for us as they are cases for our clients," its letter said. The 501 tax-exempt firm, which has had ties in the past to Liberty University in Lynchburg, Virginia, has financial support that allows it to pursue cases for an extended time.

"We are a donor-funded Christian legal ministry. Primarily we are funded by donations from people who believe in the work that we do and who value our mission and our goals," Mihet said.

Liberty Counsel has obtained no fewer than four separate preliminary injunctions barring adverse actions against service members on account of their religious refusals to comply with the military’s vaccination mandates.

The firm is also known for aggressive defending anti-LGBTQ+ laws. It represented Scott Lively, the American extremist author/minister who influenced a Ugandan law — since nullified in its courts — that would punish gay and lesbian activity with imprisonment of 14 years to life. Lively was sued for his Ugandan anti-gay activity in U.S. federal courts, which dismissed it as out of jurisdiction but agreed with the suit's premise.

Another widely publicized case, in which Liberty Counsel has not prevailed, defended a Kentucky clerk who refused to issue a gay marriage license because it was against her religious beliefs.

Liberty Counsel's first step would be filing a complaint to the Equal Employment Opportunity Commission (EEOC) for religious discrimination, said Horatio "Harry" Mihet of Liberty Counsel. Along with that, the firm would ask for a right-to-sue approval. That effectively would close the EEOC complaint to allow it to be pursued in civil court.

"We've gotten those in as little as a week," said Mihet, who is both Liberty Counsel's vice-president of legal affairs and chief legal counsel for this case.

Mihet also suggested there may be more people named in the suit by the time it is filed: "We are actively seeking to represent pro bono any employee who has been terminated or had their exemption request denied, whether religious, medical or otherwise."

Although Artis—Naples has not released a figure, the assumption has been that more than 20 employees there have been released or resigned over the COVID-19 vaccination mandate.

Mihet said his organization's warning letter points out that Artis—Naples' own legal firm issued a statement urging its clients to comply with the Florida statute after it passed.

"These employers should immediately review their current vaccine mandate policies to ensure compliance with the new Florida legislation," said the statement, part of a Quarles and Brady advisory on what Florida employers should know about Florida Statute 381.00317.

"I don't understand why they don't understand," Mihet said.

Contracts, statutes at war here

That statute is one of two issues that may be in play here. From the other side, Artis—Naples deals with contracts of Broadway musicals and individual performers that are its chief performance income, and which often incorporate union regulations. Previous regulations have been stringent about COVID-19 safety.

Further, those regulations are still being put to paper for the coming season.

"We are currently right in the middle of updating safety protocols for tours, so anything I would share with you today will be out of date by the time the season starts," wrote David Levy, communications director for Actors Equity, recently to the Naples Daily News in a response to a question about current regulation.

The Broadway League, he pointed out, must develop safety protocols with sometimes as many as three unions involved in touring productions.

Harriet Howard Heithaus covers arts and entertainment for the Naples Daily News/naplesnews.com. Reach her at 239-213-6091.

This article originally appeared on Naples Daily News: Artis—Naples vaccine mandate for musicians could lead to lawsuit