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Saturday, April 13, 2024

Religious Exemptions for Vaccine Mandates Shouldn't Exist

Covid vaccine mandates are proliferating—and so, inevitably, are attempts to evade them by claiming a religious exemption. In Washington state, a church-affiliated group hosts “vaccine exemption workshops” for state employees, health workers, and school staff. On Facebook, people swap tips for couching vaccine hesitancy in religious terms. In Texas, employees are suing United Airlines over its policy of placing religious objectors on unpaid leave, one of many legal challenges to mandates around the country.

The success or failure of those lawsuits will go a long way toward determining how many people end up claiming exemptions. What’s clear for now is that there are still millions of Americans who say they will refuse to be vaccinated and very little stopping most of them from claiming a religious exemption if they want to.

All of which makes now a good time to reconsider the whole idea of religious exemptions from vaccine mandates. Under examination, they turn out to be a policy in search of a rationale—ostensibly designed to protect religious faith, but instead overwhelmingly used in bad faith.

The First Amendment restricts the government from prohibiting the “free exercise” of religion. For most of American history, this did not include religious exemptions from secular laws that apply to everyone. As the Supreme Court observed in 1879, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Congress can’t tell you what to believe, the Court ruled, but it can tell you what to do.

That wasn’t quite the end of the matter. In the 1960s and early 1970s, a high-water mark for protecting minority rights at the Supreme Court, the justices carved out space for religious dissenters. They ruled that if a superficially neutral law conflicted with a religious command, the government would have to pass the “strict scrutiny” test by showing that it had a “compelling interest” in enforcing the law.

In 1990, the Court tightened things back up. In a case involving members of the Native American Church who took peyote, an illegal drug, as part of religious ceremonies, the Court held that religion doesn’t give someone the right to challenge a “generally applicable” law. Ruling otherwise, wrote the conservative Catholic Justice Antonin Scalia, “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

One example of such a civic obligation that Scalia cited for his slippery-slope argument: compulsory vaccination laws.

Scalia was right about vaccines and civic obligation, but it’s odd that he had to worry about vaccine requirements in the first place. In fact, religious opposition to vaccines is vanishingly rare. In 2013, John D. Grabenstein, a vaccinologist and practicing Catholic, surveyed a wide range of world religions and couldn’t find any that had anti-vaccine teachings.

Except one. The Church of Christ, Scientist teaches that the material world, including disease, is an illusion, and so the way to overcome disease is through prayer, not medicine or vaccination. Members routinely reject medical care, even for their children. Although tiny—most estimates peg membership in the tens or low hundreds of thousands range—the group was politically influential in the mid-20th century, with several Christian Scientists serving in the Nixon administration. In the 1960s and ’70s, as vaccine mandates for diseases like measles and polio proliferated, the church’s lobbying efforts contributed to a wave of state laws creating religious opt-outs. Today, 48 states and the District of Columbia allow some form of exemption. By the time the modern anti-vaxx moment picked up steam in the 2000s, these exemptions were sitting around like a loaded gun.

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“From a doctrinal perspective, it’s just the Christian Scientists,” Grabenstein says. “What we're really seeing [now] is people wanting a personal philosophical exemption. They’re calling it religious when it’s really their own philosophy.”

Other experts who have studied the matter come to the same conclusion: Almost everyone who claims a religious exemption is using it as a cover for secular concerns, like fear of side effects or a general distrust of government. “I would be very surprised if more than a handful of these people are really thinking about religion at all,” says Dorit Rubenstein Reiss, a professor at UC Hastings College of Law who has studied vaccine exemptions extensively.

Reiss notes that in Connecticut, for example, the rate of religious opt-outs from school vaccine requirements grew from 1.7 to 2.7 percent between 2012 and 2019, even though there was no corresponding change in the state’s religious composition. In California, the rate nearly quadrupled between 1994 and 2009. Rising opt-out rates have correlated, as you’d expect, with rising infections. In 2019, two decades after measles was declared “eliminated,” the CDC reported 22 outbreaks and 1,249 cases—the highest number since 1992.

Reiss laid out the problem bluntly in a 2014 article : “First, people lie to get a religious exemption. Second, U.S. jurisprudence makes preventing such abuse very hard.”

State legislature may have had Christian Scientists in mind when they wrote exemptions into law. The trouble is that carveouts can’t legally be limited to any particular denomination, or even to members of organized religion. In 2001, for example, a federal judge ruled that Arkansas’ vaccine exemption violated the Constitution because it only applied to members of a “recognized church or religious denomination.” Arkansas responded by changing the law to allow parents to claim a “personal belief” exemption, a path that 14 other states currently follow. Research has found that these states grant more non-medical exemptions than states that limit them to religious claims.

While the language of religious objections typically refers to someone’s “sincerely held belief,” judges are understandably wary of trying to read someone’s heart and mind. That creates room for mischief when it interacts with a cultural shift that constitutional law scholar Robert Post calls the “protestantization of religion”—the growing feeling that religious doctrine is not handed down by hierarchical organizations, or even governed by internal consistency, but is a question of individual private belief. Everyone is potentially a religion of one, an echo of the Supreme Court’s 1879 warning about permitting “every citizen to become a law unto himself.”

If America’s religious objectors aren’t taking their cues from official teachings, where are they getting them? To some degree, the answer seems to be Donald Trump, the Republican Party, and right-wing media. The result is a “religious” opposition to vaccine mandates that is at times indistinguishable from a political stance.

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A recent Washington Post article captures the phenomenon in detail. A pastor in Tennessee urges his audience of “patriots” to run for office to fight Covid restrictions. Protestors at a Florida school board meeting wear shirts that read “Jesus is my savior, Trump is my president” and accuse board members of being “demonic entities.” A nurse leading a protest against vaccine mandates for medical workers in Pennsylvania asks the crowd “to cheer if they loved America, freedom, ‘God-given rights,’ and Jesus.”

These are extreme cases. But they illustrate the volatility of religious exemptions at a time when opposition to public health measures is itself beginning to resemble an article of faith. In those conditions, the problem is not just that people will say their objections are religious when in fact they aren’t. It’s that they’ll say their objections are religious and mean it.

When it comes to employer-imposed mandates, the 1964 Civil Rights Act requires companies to offer “reasonable accommodations” based on employees’ religious beliefs, as long as they aren’t a burden on the business. As for the government, despite the federal and state religious freedom laws, there’s a fair bit of case law suggesting that religious exemptions aren’t required. Following measles outbreaks, the legislatures of California, New York, and Maine all recently eliminated religious exemptions from school vaccine mandates, and those repeals have held up in court.

But that doesn’t mean the current Supreme Court majority will be OK with Covid vaccine mandates that don’t include a religious opt-out. The pendulum of religious liberty law can swing dramatically. The 1990 Scalia decision was so unpopular that a near-unanimous Congress quickly passed the Religious Freedom Restoration Act, which reinstated the “strict scrutiny” standard for federal laws. Twenty-one states have their own version of the statute. Several of the Court’s conservative justices have argued for overturning the 1990 ruling entirely.

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So far, cases challenging mandates around the country are coming out in different ways. A federal judge in Louisiana ruled that a private university that uses public facilities can’t require vaccinations. In New York, a federal judge has temporarily blocked the state from enforcing its mandate against health care employees who raise a religious objection. Other challenges have failed: Most notably, a group of students sued Indiana University over its mandate, but Justice Amy Coney Barrett, a conservative Catholic appointed by Donald Trump, rejected their appeal. In that case, the university offered a generous accommodation, allowing students to be tested regularly. We still don’t know what would have happened if the school had instead told unvaccinated students they weren’t welcome on campus.

Two dynamics help explain why these cases are playing out so chaotically. First, most of the case law on vaccine requirements deals with schoolchildren, where mandates are especially easy to defend. An adult who opts out of vaccines for their child is risking the health of someone too young to make their own decisions. Not so for mandates that apply to grownups.

The second variable is that these lawsuits are arriving at a moment when religious freedom law in the US is in flux. The big cases in the ’60s and ’70s tended to involve a member of a small, marginalized religious minority seeking an exemption based on some aspect of their faith that lawmakers hadn’t even thought about when passing the law. A paradigmatic case: Should an Orthodox Jew or Seventh Day Adventist be allowed to receive unemployment benefits if the only jobs available require working on Saturday?

Today’s high-profile religious freedom cases—argued before a sympathetic conservative majority—look different. The plaintiffs tend to be members of major religious groups, like Catholics or mainstream Evangelical Protestants, seeking to regain territory lost in the culture wars. In one line of cases, the Court has ruled in favor of employers who object to having to pay for their employees’ contraception coverage under the Affordable Care Act. Then there was the Masterpiece Cakeshop case, in which the Court ruled in favor of a baker who refused to make a wedding cake for a gay couple. This past term, the Court ruled in favor of a Catholic foster agency that had its contract with the city revoked because it refused to place kids with same-sex couples.

There are signs that the Court’s conservative majority sees American Christians as a persecuted minority, and that this colors its interpretation of pandemic-related policies. In a November 2020 speech to the conservative legal organization the Federalist Society, Justice Samuel Alito argued that state public health orders had “blatantly discriminated against houses of worship” and warned that “religious liberty is in danger of becoming a second-class right.” Since Barrett was confirmed to replace Ruth Bader Ginsburg, the court’s majority has seemed to embrace that attitude, striking down limitations on in-person worship.

Shutting down church services is one thing. Because refusing vaccines isn’t actually a key part of religious practice, perhaps conservative judges won’t see vaccine mandates as a form of discrimination. On the other hand, you could have said the same thing about baking cakes.

Religious exemptions from vaccine mandates are sustainable only if very few people use them. Vaccination is a collective challenge, a civic obligation of the most immediate kind. For highly contagious diseases, it’s only effective when nearly everyone participates. One person’s choice to refuse vaccines can get another person killed.

Even the Christian Scientists now come close to conceding the point. A post on the church’s website seems to acknowledge that exemptions have gotten out of hand: “In the past, many public officials have been broadly supportive of exemptions when these have not been considered a danger to the wider community. In more recent years, public health concerns relating to vaccinations have risen as exemptions from them have been claimed by larger numbers. Christian Scientists recognize the seriousness of these concerns.”

When you’ve lost the Christian Scientists, it’s time to rethink exemptions.

Given the current posture of the Supreme Court toward free exercise claims, however, it might be hard to do away with religious vaccine exemptions wholesale—in which case another strategy will be needed.

Dorit Rubenstein Reiss has proposed letting believers and nonbelievers alike claim a general exemption for personal belief—but making it very hard to get. This might look like forcing people to sit through extensive education programs, write a letter explaining their objections, and get it notarized by a notary public. The goal would be to make it such a pain in the ass that only the most die-hard resisters would go to the trouble, while taking religion out of the equation. There is evidence that this approach can work. A 2013 research paper sorted states according to whether their exemption procedures were easy, medium, or difficult. The authors found that the rate of vaccine opt-outs in the easy states was more than double that of the difficult states.

“There’s 1 to 2 percent who will not be vaccinated no matter what,” Reiss says, referring to vaccines in general. “I think we need an out for that 1 or 2 percent, and I think if we limit to that 1 or 2 percent, we could actually absorb that.”

Getting to that point for Covid vaccination remains a distant fantasy. Religious exemptions are only one of many challenges. People have all sorts of reasons for not wanting vaccines. But it’s best for everyone if we leave God out of it.

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