Sherry Detwiler, a data-privacy executive at Mid-Columbia Medical Center, sued under Title VII and Oregon law after her 2021 termination. The district court dismissed on the pleadings. A panel majority affirmed, holding she failed to plead a bona fide religious belief that conflicted with her employer's testing requirement.

Judge John B. Owens and Chief District Judge Richard Seeborg of the Northern District of California, sitting by designation, voted to deny panel rehearing. Judge Lawrence VanDyke voted to grant. The petition for rehearing en banc "failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration," the court said.

Judge Forrest, joined by Judges R. Nelson, Bress, Bumatay, VanDyke, and Tung, wrote the first dissent. The panel's standard "necessarily requires judging religious belief, and it is a significant misstep that risks reducing the freedom of belief to the freedom of accepted belief, which is not freedom at all," she wrote.

Forrest argued that judicial inquiry in religion cases is limited to sincerity. "Judges know law, not liturgy," she wrote. She criticized the panel majority's holding that "[i]nvocation of prayer, without more," cannot establish a religious basis for an exemption, calling that position "clear evidence of [the court's] inability to evaluate religious belief."

Judge Tung, joined by Judges R. Nelson, Collins, Lee, Bress, Bumatay, and VanDyke, wrote a separate dissent. The panel, Tung wrote, "recharacterized the employee's clearly religious objection to a company policy as 'purely secular' merely because the objection turned in part on a secular consideration." He called that "legal error."

"It is hard to imagine, frankly, what religious practice would not turn on secular considerations to some degree," Tung wrote. "A judge construes law not theology."

Detwiler alleged she is a practicing Christian who "believes her body is a 'temple of the Holy Spirit.'" In her exemption request, she wrote that "the Holy Spirit has moved on my heart and conscience that I must not participate in COVID testing that causes harm." She proposed weekly saliva testing or fully remote work as alternatives. The hospital refused and terminated her.

Tung's dissent cited decisions from the Sixth, Seventh, and Eighth Circuits that reached different conclusions on similar facts. "En banc should have been granted to bring our court in line with how every other circuit in precedential opinions has addressed this issue," he wrote.

Tung noted that the employer, a Seventh-Day Adventist-affiliated hospital, had itself disagreed with the panel's "truly religious" test in its response to the en banc petition. He quoted the hospital's brief: "Judicial inquiry into religious judgments would be harmful to religion and could deeply entangle federal courts in deciding religious questions."

The underlying panel opinion, Detwiler v. Mid-Columbia Med. Ctr., 156 F.4th 886 (9th Cir. 2025), remains binding circuit precedent.