The sticky problem of ‘religious exemption’ from vaccine mandates

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Vaccine mandates, many quickly enacted in the wake of the full approval by the FDA of the Pfizer COVID vaccine, have started running into predictable and fierce opposition. Public employee unions in Washington state, Chicago, and elsewhere have voiced objection and even filed lawsuits to keep their members’ jobs secure even if they refuse to be vaccinated. California lawmakers withdrew a plan for a state-wide mandate on both and private sector employees, while in Ohio lawmakers prepared a bill that would forbid schools, businesses, and other institutions from requiring employees to get the shot.

I’m modestly optimistic that this reaction will mostly fail. Business groups are strongly in favor of allowing businesses to impose vaccine requirements, and mandates have already proliferated in higher education. The court system has looked favorably on vaccine mandates by schools and hospitals where there is ample precedent from prior vaccines, and will likely stand up for the rights of other businesses and institutions as well against overreaching state governments. And the military has longstanding and clear authority to require those in uniform to receive a vaccine, to threaten them with court martial if the order is refused, and even, if necessary, to force them to do so. Unions and protestors may drag out the process for a while, and deep-red jurisdictions may refuse to impose them, but vaccine requirements are likely to continue to spread nonetheless.

But there’s a loophole to vaccine mandates that looks likely to get more and more attention: religious exemption.

I’m not thinking primarily about religious groups that have deep and abiding opposition to certain health-care practices. In fact, these groups have frequently not been dogmatic about vaccines; for example, the Jehovah’s Witnesses, who do not allow blood transfusions, voiced their support for vaccination in 1952, and the Christian Scientists, who traditionally rely on prayer for healing, have long counseled compliance with the law and public health officials, including on vaccinations, when exemptions threaten public wellbeing.

Nor am I primarily thinking about those Protestant Christian groups, from the Dutch Reformed Church to the Amish, who subscribe to doctrines of dependency on the divine and/or fatalism before God’s will. Even if their churches do not explicitly reject vaccination, those members who do reject it do so for deep doctrinal reasons, and have generally been accommodated by the authorities whenever possible.

Rather, I’m thinking about the broad mass of White Evangelical Christians who, as David French reports, increasingly view the COVID vaccine as somehow un-Christian, and who are seeking religious exemptions from vaccine requirements accordingly. If this California pastor is a harbinger, they may well get clerical support for their bids.

I doubt that support will help much. Employers are likely to look askance at spurious demands for religious exemption, particularly given the open-ended nature of the precedent set if they accede (what will these employees object to next?), and the courts, eager to save their religious liberty bullets for more sympathetic causes, are likely to back them up. The armed services have procedures for assessing conscientious objection, and will likely make short work of those who, for example, are vaccinated against measles, mumps, and rubella but declare a religious objection to the COVID vaccines.

But that doesn’t mean I don’t worry about it. Even if their objections are swatted down legally, the precedents set thereby could be ominous, both for the further alienation of that segment of the population and for religious freedom itself.

French is concerned primarily with what he sees as the un-Christian behavior of the Evangelical Christian vaccine-rejectors, and cites scriptural and pastoral authority, from Martin Luther to Russell Moore, to the effect that Christians have a responsibility to preserve their own health and that of their communities. Those are laudable sentiments — but they should carry no more weight with the secular authorities than Thomas More’s denunciations of Luther or Jewish or Islamic rejection of Christianity generally. Those authorities are only supposed to evaluate whether an individual’s objections are sincerely religious, not whether they are scripturally or theologically correct.

And it seems likely to me that many of those who present themselves will be sincere in their objections, and sincere in believing them to be religious. They may be sincere in believing outright falsehoods — that the vaccines are really a plot to control the population, for example, or that they are made from aborted fetuses. They may be following a religious figure, however dubious, who told them the vaccines are pernicious or ungodly. They may believe that their bodily integrity is inviolable because they are made in the image of God, and therefore no one has the right to mandate they do anything with it that they do not wish to, no matter what the effect on the public interest. They may sincerely not know why they believe what they believe. But I suspect most of them won’t be outright faking their views as, say, a supposed conscientious objector who simply wants to avoid the draft might be.

This could pose a real problem for the courts, inasmuch as if they want to reject these claims, they effectively have to opine on what a “real” religious view is and isn’t. And that’s a troubling thing for our system to do.

Winnifred Sullivan, in her seminal book, The Impossibility of Religious Freedom, painstakingly explains the problem. In America, freedom of religion doesn’t just mean freedom to choose between defined sects with duly constituted traditional authority. Ever since Roger Williams, if not before, it means freedom to choose none, to found one’s own, or to declare oneself a member of an established sect with one’s own idiosyncratic interpretation thereof. In consequence, if you say that neutral rules can still be voided if they burden anyone’s free exercise of religion, then in theory they may be voided because one deranged person claims to have had a revelation that forbids him from following a given rule. 

Nor do the problems of governance require such an extreme example. Sullivan leans heavily on Warner vs. Boca Raton, a case that pitted Jewish, Catholic, and Protestant families against a municipal cemetery. In that case, the plaintiffs wanted to decorate their graves however they liked, even though municipal regulations limited their options, and claimed sincerely that their reasons were religious even though none of their faiths required particular grave decoration. The plaintiffs understandably saw themselves as the best arbiters of their own religious beliefs, but if the secular authorities didn’t want to allow any regulation to be wantonly voided, they had to sort out “legitimate” religious claims from “illegitimate” ones. In the process, they were inevitably entangled in the operation and even the tenets of specific religious groups — precisely what the First Amendment’s Establishment Clause was intended to prevent.

America has navigated that theoretical problem for better or worse over the course of its history, believing in the idea of true religious freedom despite its inherent contradictions, much as the bumblebee continues to fly even though it appears aerodynamically impossible. If religious objections to vaccines really do burgeon, though, and are rejected as spurious, that idea might encounter considerably more turbulence, or even come crashing to the ground.

After all, an increasing proportion of the American population does not belong to a particular religious denomination. They may or may not consider themselves Christians but even if they don’t, they may well still harbor some religious beliefs or practices, and even if they do, they are decreasingly likely to affiliate with a particular church. Meanwhile, nondenominational churches are now the third-largest Christian grouping in America, but these churches frequently have no hierarchy and may have no body of doctrine against which to judge their congregants’ creedal statements or behavior.  

I worry whether the concept of religious freedom can remain credible if such a large group of people felt they were being told, in so many words, that what they believed wasn’t “real” religion. And I wonder where more traditionally-organized religious groups, like the Catholic Church, will come down in a contest that seems to make a mockery of religious freedom on the one hand, or to set precedents that could severely curtail it on the other.

Employer mandates might be the tool that finally helps us win the war on COVID. I hope they don’t give us a war over religion as an unintended consequence.


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