Compromise: The Purpose of and Limitations on Religious Exemptions

vaccine

Vaccine mandates, arguably the most preventive and protective measure to address COVID-19 and to prevent death, require a more organized ethical analysis, streamlined to include the considerations appropriate for government, employers, or other stakeholders, yet broad enough to incorporate largescale considerations like the potential political cost. This post examines the role of religious exemptions viewed as a moral controversy not merely a scientific one. The focus is reasoning and thinking, not conclusions or recommendations.

Legal Backdrop

The First Amendment prevents government infringement of the free exercise of religion. While it is a changing area of law, religious exemptions to otherwise required actions sometimes apply when a person has a sincere religious belief, and a law places a substantial burden on acting on the belief. Even so, a compelling state interest, or separately, an emergency act, could override the religious objection to a restrictive or strict law. The Court has upheld neutral laws even if they impact religious communities adversely, but the Court’s willingness to continue to do so is unclear. In Employment Division, Department of Human Resources of Oregon v. Smith, a 1990 landmark decision, the Court approved denying unemployment benefits to workers who violated a prohibition on using peyote because the law was neutral.

During the COVID-19 pandemic, courts hashed out the role of religion caselaw in the emergency setting (Justice Gorsuch applied Free Exercise caselaw rather than Jacobson v. Massachusetts in the context of a law capping church service attendance), creating a disparate body of law, uncertainty around whether a law is neutral (In Roman Catholic Diocese of New York v. Cuomo Justice Kavanagh claimed the executive order restricting religious services was not neutral), and a lack of clarity about free exercise trumping other caselaw traditionally governing emergency measures.

The much older Jacobson v. Massachusetts case gives deference to public health officials in times of emergency and arguably still governs the ability to adopt and execute emergency orders without the need to rely on Smith. Many cases brought against COVID-19 vaccine mandates have failed to succeed in proclaiming employer or government mandates illegal although it is early with more cases to come.

A New York federal court did temporarily enjoin New York from enforcing its mandate. Wrongful termination cases for failure to vaccinate generally fail because so much employment is at-will. A Texas healthcare workers’ case arguing that to require the vaccination when the vaccine had only emergency use authorization would violate human subjects research standards also failed. The Biden Administration emergency plans include an executive order requiring vaccination of many federal employees and government contractors and a forthcoming OSHA-based initiative to adhere to safe working conditions. The OSHA emergency temporary standards are expected to include an option for weekly testing instead, but the Biden executive order for federal employees and government contractors will not. The Biden plan will have religious and medical exemptions.

Separating Rights, Science, and Religion

Rights

There are three distinct issues in the vaccination hesitancy or avoidance realm: rights, understanding science, and the role of religion. I use rights to broadly categorize freedoms from government intrusion. By their nature, individual liberties go beyond those things where the “result will be good.” We are experiencing a contraction of slander, libel, and truth-telling laws (like truth in advertising or consumer protection laws) and an expansion of free speech. It is increasingly difficult to regulate untruthful speech, challenges to gun control, and corporate speech, and there is generally a narrowing of the ability of government to protect people from those who believe exercising rights must trump pandemic protection measures. The protection of ideas, assembly, speech, and religion allows diverse views, and prevents the law from codifying or privileging a majority or elitist view. While anyone can ignore the data or prioritize rights and health differently (one may prefer death by sickness over any risk associated with the vaccine), rights do not stretch to include the right to endanger neighbors, colleagues, and greater society. The unvaccinated are 11 times more likely to die of COVID-19, but the ethical argument that vaccination protects others is stronger than the argument that government is protecting you from your own bad decisions. Government as a babysitter is less accepted than government as providing for the general welfare. Having just attended a funeral of a tragic COVID-19 death of an unvaccinated person (who was well educated in science and chemical engineering), I do wish people would protect themselves, and I would suggest that an employer mandate would have done two things in his case: outraged him and possibly saved him. But the future political or social cost of widespread outrage is unpredictable.

Science

The “understanding science” issue (to be discussed in a separate post) calls for public health messaging about the science, which requires public trust in the organizations researching, tabulating, and delivering data. The religious rights issue is distinct from the issue of misunderstanding science.

Religion: Rights and Where They End

This section assumes the most ethically justified argument: that freedom of religion cannot endanger others, but that it can to some degree, and maybe to a great degree, harm the adult religious person exercising the freedom.

The religion issue must be approached culturally with social sciences in mind without judgment about or rationalization of religion itself. The role of freedom of religion in liberal society is different from the role of religion itself. I would prefer that public health messages and bioethicists not investigate religious doctrine and use it against believers. For example, clarifying the degree to which the Johnson & Johnson vaccine relied on an old stem cell line developed from aborted fetuses and noting that even “the Catholic Church has said this relationship is so distant as to not be a problem[.]” invades a religious space unnecessarily. Generally, those refusing the vaccine should not do so based on a faulty interpretation of their own church’s teachings, yet both the nature of religion and the issue of why the US has freedom of religion should inform the narrative. Bioethicists and public health officials should try to understand the freedom rather than the religion.

We don’t have religious refusals because they make religious sense. Religion does not follow the rules of logic. Freedom of religion does not require or expect the religious to follow scripture, religious sermons, or teachings, although when evaluating the sincerity of a deeply held religious belief, the level of adherence may be relevant.

Religious freedom is a type of freedom that democracies have found necessary to their success. It does not need to be broad necessarily. It is part of a bucket of individual civil liberties, none of which are absolute. Authoritarian states impose one religion or prohibit religion altogether as a means of controlling the populace. Imposing a system of beliefs on everyone is inconsistent with liberal democracy and would undermine freedom. Yet, religious freedom is not nearly absolute. If herd immunity can be reached with a religious exemption, a limited carve-out could serve to stem the outrage that many strong supporters of rights take up on behalf of the religious. (Separately, some fraudulently claim religious exemptions when philosophical ones are not available.) Furthermore, we do not know whether vaccination as a condition of participation in social events, public transportation, and restaurants will be effective in reaching herd immunity, further decreasing the need for mandates that do not allow exemptions.

But when religious objectors are the source of community spread, the right to remain unvaccinated is rightly challenged, and a public health approach that prevents spread is morally required. Yet, there are alternatives to mandates. Those claiming religious exemptions may face daily testing, mask requirements, social distancing requirements, and even unpaid leaves. The mandates that allow exemptions have such built-in controls.

When the exercise of an individual liberty poses a danger during an emergency, the authority to use emergency powers at all levels (presidential, federal, state, and local) increases. However, whether it is wise to use them and which way to use them matter. There are societal, political, and practical costs to invoking police and public health powers. Even when the constitution supports the infringement on usually exercisable freedoms, evaluating whether strict orders without any religious exemption are wise, ethically compelled, or ethically permissible, requires a look at latent effects.

The Latent Costs of a Mandate Without a Religious Exemption

Healthcare Worker Shortage

If healthcare workers would rather quit than become vaccinated, an employer mandate would exacerbate an already existing shortage. Yet a mandate with a religious exemption could allow for community-wide herd immunity (the healthcare facility workers might be a microcosm of the broader area) without sparking the added angst from those claiming free exercise of religion. Any mandate will face lawsuits and criticism – the perception of rights absolutism goes beyond religion. The Biden Administration and OSHA federal rules and the New York State Department of Health’s Public Health and Health Planning Council (PHHPC) August 26 emergency regulations give workers a few weeks to become vaccinated. New York State is currently enjoined from enforcing its mandate. It might be that a strict religious exemption would have avoided the lawsuit and still yielded significant additional vaccination.

In the context of a healthcare worker shortage, new evidence emerged that understaffed nursing homes prescribe antipsychotic drugs for the residents at higher rates. If a stricter mandate causes more people to quit, even more over-prescribing or other practices that conflict with person-centered care and emphasize convenience and reflect scarcity could prevail. If a well-managed exemption helped the public perception of the mandate, healthcare facilities may find that enough workers become vaccinated that if those remaining unvaccinated would mask, test, use other precautions, and socially distance when possible, a safe community can be established. If the rates are too low and a large percentage claim the religious exemption to the detriment of the community, it would have to be revoked.

Allowing healthcare workers to work unvaccinated poses a health risk to which David Hoffman offers a creative hypothetical approach. But I wonder whether healthcare workers would be less likely to quit if there were a religious exemption or if religious people could opt for twice weekly, or even daily, testing and subsequent quarantining than if there were no exemption. A limited-time experiment allowing an exemption and assessing herd immunity could be worthwhile.

Fueling Future Political Power

Mandating the vaccine with exemptions, especially since it is beyond the emergency use authorization, is arguably ethically justified based on the risk of death and severe disease, the need to prevent spread, and the moral impetus to protect the community. Mandating it without exemptions may do more to fuel a rights-based extremism narrative than mandating it with a reasonable, narrow exemption.

Political polarization has threatened centrism in the US. Consensus building around vaccination is the best approach to depoliticize it. It may take quiet from the scientific community – it should not explain people’s own religion to them or shame people who seek more data and are (or were) appropriately hesitant. A policy that will achieve an end to the pandemic fastest with the least political backlash is preferable.

The Republican governors who have not mandated vaccination will be overruled by the OSHA rules and the Biden executive order to some degree, so people in deeply Republican states will have safer communities as vaccines are mandated. Politically, the governors can publicly oppose measures that will save lives in their own states, pleasing the freedom extremists, while benefiting from the results of those federal measures. Continuing an effort to bring those Republican governors to the table to make reasonable measures that initially include a religious exemption may be wise. But it may be too late. My first (and hopefully last) COVID-19 funeral confirms that even scientists may prefer rights extremism, and to them, that is the cost of freedom.

Conclusion-Religion, Science, and Rights

Analyzing the reasoning behind liberal democracies’ commitment to freedom of religion and their limitations on such freedom can avoid the intricacies of the reasonableness of any particular religious doctrine. Bioethicists and public health officials should incorporate public trust and understandable skepticism, delivering a respectful fact-based narrative that admits to the unknowns and transparently provides research including that on the side effects of the vaccine. The overall rights narrative must look to societal forces that trigger extreme views of rights, acknowledging that a failure to vaccinate endangers others. Seeking to understand opposing viewpoints could lead to common ground and improve vaccination rates among those initially hesitant. While there are many valid arguments to support a universal vaccine mandate with no exemptions at all, (a pro-life stance for sure!), an organized analysis of the true cost of eliminating religious exemptions would be a welcome body of research.

Many Considerations & Thought Questions

Cost of religious exemptions in additional lives lost. Additional lives saved without a religious exemption.

Cost of strict mandates without exemptions in sparking additional political extremism. (is a loud minority worth worrying about?)

Would people become vaccinated or quit jobs, quit society? Are there accurate predictors?

How should we look at spread within insular religious communities? Are people endangering each other or should they be seen as a community of objectors endangering themselves? (They would endanger healthcare workers.)

What is the fundamental explanation for freedom of religion? (As a thought experiment, how would we as a society do without it?)

What if religious organizations and schools lost their tax deductions?

Is there a responsibility to save people from themselves? (Government as a babysitter or reserved to be an arbiter of competing freedoms–does yours end where mine begins?)

Is democracy by its nature dangerous—why have so many societies not encountered so much extreme vaccine resistance?

What makes the US freedom of religion broader, the system more fragile and susceptible to rights extremism? How does the January 6 invasion of the US Capitol inform a discussion of rights and religious freedom in the US, and should that inform vaccine policy?

Would education change the nature of religion in the US?

Do religious people truly operate autonomously?

**As an avid atheist, and a vaccinated person, I do not aim to favor religion and I strongly assert that all states with religious exemptions should have philosophical ones as well.

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