It's Time to End Religious Exemptions During Public Health Emergencies

Just as many other universities have been doing, in August, the University of Virginia announced that it was disenrolling 238 students for the autumn semester. They could reenroll provided they showed proof of vaccination against COVID-19 or obtained medical or religious exemptions by a date certain. And therein lies a problem.

The Delta variant of the virus is extremely transmissible - more so than the common cold - and it can occasionally break through and infect a vaccinated person. Thus, even one unvaccinated student in a classroom greatly heightens the risk to an educational institution. Obviously, no blame for not being vaccinated attaches to those who for valid medical reasons cannot be vaccinated. But what about those who claim an exemption for religious reasons?

It is difficult for a layman to find an excuse for such an exception. A majority of Americans professing a faith adhere to Christianity, and is it not an injunction of Jesus in the Gospel according to Matthew to "love thy neighbor as thyself?" In a situation in which communicating a lethal virus to a frail or immune-compromised person might be a death sentence, due regard for one's neighbor ought to the overriding consideration for any believing Christian.

The Catholic Church agrees, and Pope Francis is emphatic:

I believe that morally everyone must take the vaccine. It is the moral choice because it is about your life but also the lives of others.

The other major Christian denominations take the same line. Even Christian Science is unambiguous:

For more than a century, our denomination has counseled respect for public health authorities and conscientious obedience to the laws of the land, including those requiring vaccination.

The other global religions espouse similar views, including Islam. The notorious exception is Islam as perversely interpreted by the Taliban, who incidentally make rather role curious models for American Christians to be emulating.

Still, we see such spectacles as megachurch pastors issuing exemption letters en masse, and a Catholic cleric, Cardinal Raymond Burke, defying his own faith's hierarchy and strongly denouncing vaccine and social distancing. He even criticized fellow Catholics for not believing Jesus would protect them from the virus; it is somewhat inconvenient for his argument that he has been hospitalized with COVID-19.

Clearly, renegade clerics handing out exemptions or publicly advocating against vaccination are not speaking on behalf of the religious doctrine into which they were ordained, so there is no reason to assume their sincerity. Rather, they are taking a partisan political stand on a medical matter while exploiting the near-universal American deference to claims for special treatment based on faith. This conclusion is bolstered by the evidence that adherence to a political party is a better indicator of a person's position on vaccine than religion or any other belief.

The fact that organized religions support vaccination renders the notion that government or business must automatically recognize faith-based exemptions rather shaky to begin with. But there is a more fundamental, constitutional objection to religious exemptions: why is religion privileged above other constitutional rights in a public health emergency that has taken over 640,000 lives? Why should a religious claim allow someone to opt out of an obligation binding on everyone else?

The Constitution recognizes many freedoms, such as freedom of speech, expression, and association, as well as the freedom of religious belief, but also of non-belief. It is the chief business of law and jurisprudence in a free, pluralistic society to balance those competing claims, never letting one presumptive right run roughshod over the others. They must do this while observing the preeminent duty of government: to protect the lives of its citizens.

It should be obvious to even a first-year law student that a government worker cannot claim a conscience-based exemption from a federal government vaccine mandate with the declared reason of his membership in a political party, or belief in UFOs, or because he thinks Bill Gates uses vaccines to implant microchips in people.

Accordingly, the vaccine refusal of someone who, like Cardinal Burke, thinks that Jesus will protect him, begins to sound equally as undeserving of special privilege as our hypothetical examples.

The reason for the differing treatment of constitutional claims is painfully clear, Justice Stephen Breyer's recent high-minded pronouncements about the independence of the courts to the contrary. In recent years, federal courts have increasingly become partisan instruments, and Republican-appointed judges have steadily expanded the controlling authority of religious doctrines over people who may want nothing to do with those doctrines.

The Hobby Lobby case is a notorious example. In that decision, the Supreme Court ruled that an employer may, on religious grounds, deny certain types of health insurance to certain employees, in this case, insurance coverage for contraceptives or abortion services. The court not only decided it was permissible for employers to impose their religious views on employees, but also that a religious claim was sufficiently privileged that it overrode the fact that the decision would have a blatantly disparate and discriminatory impact upon women.

The country already has endured almost a half century of bitter controversy over Roe v. Wade, in which one side of the argument bases its demands on religious claims which, they assert, are so extraordinary that a women's presumptive right of free choice must be prohibited by law to preserve unborn life. Now, ironically, as the culture war extends to vaccines, masks, and social distancing, extraordinary religious claims are brandished to support the dogma that free choice is so paramount that it supersedes the very right to life of innocent third parties.