A woman holds a rosary and a picture of the Virgin Mary during a 2019 hearing in Albany, N.Y., challenging the constitutionality of the state’s repeal of the religious exemption to vaccination

A woman holds a rosary and a picture of the Virgin Mary during a 2019 hearing in Albany, N.Y., challenging the constitutionality of the state’s repeal of the religious exemption to vaccination Hans Pennink/AP file photo

What’s the Law on Vaccine Exemptions? A Religious Liberty Expert Explains

Plenty of groups are offering religious exemptions to COVID-19 vaccine mandates, but their legal basis isn’t as rock-solid as that might suggest.

For Americans wary of COVID-19 vaccine mandates, like the sweeping requirements President Joe Biden announced Sept. 9, 2021, it seems there are plenty of leaders offering ways to get exemptions – especially religious ones.

No major organized religious group has officially discouraged the vaccine, and many, like the Catholic Church, have explicitly encouraged them. Yet pastors from New York to California have offered letters to help their parishioners - or sometimes anyone who asks – avoid the shots.

These developments point to deep confusion over how to win a religious exemption. So what are they, and is the government even required to offer the exemptions in the first place?

Many schools, businesses and governments requiring vaccination have offered religious exemptions. Some are loath to challenge people’s claims that getting the shot goes against their beliefs for fear of being sued, but organizations have come up with a variety of ways to assess claimants’ sincerity.

But the legal basis of Americans’ supposed right to a religious exemption to vaccination is less clear than such policies’ popularity would suggest.

As a lawyer and scholar who focuses on religious liberties, I have supported religious exemptions for a baker who refused to create a cake for a same-sex wedding, a family-owned business that refused to provide emergency contraception to its employees, a Muslim prisoner who was obligated to grow a beard and many others.

Even so, I believe that under the general law of religious liberty – including the Constitution and state and federal religious freedom laws – the government has an easy case to refuse religious exemptions from vaccines against infectious disease.

Proving ‘interest’

There are a variety of ways to present a religious liberty claim, each with a different set of rules.

The most stringent standard is that the government should not require people to violate their conscience without a compelling reason.

The Supreme Court has never been clear about the full range of what counts as “compelling,” but some cases are clear. The government has a compelling interest in preventing significant threats to other people’s health, and especially so in a pandemic. The unvaccinated endanger people who are immunosuppressed or cannot be vaccinated because of their age or any other medical reason. The unvaccinated also endanger people who are vaccinated because no vaccination is 100% effective, as is evident from the number of breakthrough COVID-19 infections in the U.S.

Until last month, no state or federal court had ever granted a religious exemption when the government had to demonstrate compelling interest in requiring a vaccine. Now, a federal judge has granted a temporary restraining order to prevent Western Michigan University, a public school, from requiring its student-athletes to be vaccinated. This is a preliminary opinion and seems unlikely to stand up through further proceedings and appeal, since every judge to encounter such an issue in the past has ruled the other way.

The Supreme Court’s current interpretation of the Constitution does not always require a compelling interest.

Under the current law of the Constitution, people have no right to a religious exemption from a rule unless there is also a secular exception or gap in coverage that would undermine the government’s interests just as much. If there isn’t such a secular exception, the government doesn’t have to show any reason at all to refuse religious exemptions.

Usually the only secular exception to vaccine requirements is for “medical contraindications,” meaning that a vaccine would harm the recipient - for example, if someone is allergic to an ingredient in the vaccine.

But these medical exceptions don’t undermine the government’s interest in saving lives, preventing serious illness or preserving hospital capacity. By avoiding medical complications, those exceptions actually serve the government’s interests.

Offering exemptions

In some states, however, the situation is more complicated. Most states explicitly authorize religious exemptions to vaccination, and sometimes philosophical exemptions as well – regardless of the government’s compelling interests.

Those state laws could not protect anyone from a federal vaccine mandate, and many of them only apply to certain groups – usually schoolchildren. But they could protect people from mandates from their state or local government.

Many private employers requiring vaccines offer religious exemptions, too. Title VII of the Civil Rights Act requires businesses to accommodate workers’ religious practice as long as they do not cause “undue hardship” to the employer. But the Supreme Court has interpreted “undue hardship” to mean anything more than a minimal expense, meaning employers don’t need a reason anywhere near as strong as a compelling interest. So employers do not have to allow religious exemptions to their employees.

Still, many employers and governments alike have been reluctant to challenge religious exemption claims. When it comes to vaccines against childhood diseases, where the danger did not seem great or immediate, many groups have just taken people’s word for it if they say their religious views prevent vaccination.

Backing up beliefs

There is evidence that many claims of religious objections to vaccination are false, particularly given the large anti-vaccine movement in the U.S.

Law professor Dorit Rubinstein Reiss has compiled anecdotal and survey evidence that most claims for refusing school vaccination requirements on religious grounds are false. The objectors really do object to vaccination, but their reasons are not religious. Meanwhile, opposing COVID-19 vaccinations has become a matter of political identity for many on the political right.

These factors could mean a flood of false religious claims. And whenever that situation arises under the federal law of religious exemptions, the Supreme Court has refused them.

The court rarely talks about this explicitly, but there is a compelling interest in not having a general policy’s effectiveness undermined by thousands or millions of claimed religious objections. That’s part of the reason why the court has refused constitutional protection for religious objections to paying taxes, or serving in the military, or, back in the desegregation era, integrating restaurants.

It is very hard for judges to determine religious sincerity, and mostly they don’t try. But when there are likely to be many exemption claims – both true and false – courts reject them because the difficult task of judging the sincerity of one or a few claimants becomes impossible when there are thousands or millions.

Challenges ahead?

Still, some claims are probably sincere. One question to ask people claiming religious objections to the COVID-19 vaccines - whether on cross-examination in a courtroom or arguing at a meeting of your local school board – is whether they or their children are vaccinated against other diseases. Even if the answer is “no,” however, that may point to longstanding anti-vaccination views rather than sincere religious objections.

Some Catholics object to COVID-19 vaccinations because decades-old fetal cell lines were used in the vaccine research. If that is their sincere religious belief, it doesn’t matter that Pope Francis disagrees.

[Over 100,000 readers rely on The Conversation’s newsletter to understand the world. Sign up today.]

Still, even when religious objections are sincere, the government has a compelling interest in overriding them and insisting that everyone be vaccinated. And that overrides any claim under state or federal constitutions or religious liberty legislation. It is irrelevant to state statutes that explicitly grant vaccine exemptions with no exceptions for compelling government interests. But federal vaccination requirements override those state laws.

With mandates – and vocal objections – looking poised to grow, the United States could see vaccination requirements more and more put to the test in court this fall. But how far can challenges go? Unless governments mandating vaccines do not defend their rules, or the Supreme Court changes the law, the answer is likely, “Not far.”

The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.