Free Exercise and Vaccine Mandates: The Least Restrictive Means

Vaccine mandates without religious exemptions (or as enforceable against those claiming free exercise) are in uncertain legal terrain. Nineteen states mandate vaccines for healthcare workers, but vary as to religious exemptions. The medical value of mandates with and without exemptions depends on the number of people who successfully claim exemptions or stall in becoming vaccinated while cases are pending, or choose to leave jobs to avoid mandates. When an exemption can be safely granted, there are pros and cons to doing so. Law and ethics converge in this realm.

There are implications of more broadly recognizing religious exemptions for future emergencies. Two arguments, discussed below, could counter the reasoning taking shape in the area of strict scrutiny and how to define least restrictive means. Those in medicine, public health, and bioethics who express a concern and predict high numbers of religious exemptions may decrease the odds that laws survive free exercise claims by feeding the implication that the true motive for adopting mandates is to get religious people to comply. Yet it is important to democracy that all public health measures that infringe rights be properly justified, and strict scrutiny could heighten public trust.

Furthermore, the recognition that healthcare workers in particular have already sacrificed so much and endured elevated risks prior to the vaccine’s development is understandable, and some empathy toward their stance is morally called for. Caselaw may apply outside the realm of healthcare worker mandates to occupations that do not pose a special risk to others, or occupations that are low-paying and important, like firefighting and trash collection. There is a moral component to the argument that we would rather be saved from a fire and have our trash collected regardless of vaccination status. Those arguments are beyond the science — the best protection for the people in any job is vaccination, but to justify firing people, making them stay home, and suffering the social costs of doing so requires more ethical analysis.

Nothing in this post or on this website is meant to be legal advice.

Background

As I noted in “Religious Exemptions: Application of Employment Division v. Smith to COVID-19 Vaccination Mandates” there seems to be a legal paradigm shift that is elevating the power of people who claim religion as a reason to fail to comply with laws. It is unclear whether Employment Division v. Smith, which does not require religious exemptions from laws that are neutral and generally applicable, will be explicitly overruled, chipped away at, or refined. But it is becoming likely that it will not preclude strict scrutiny in free exercise cases about vaccine mandates.

There are two operational legal mechanisms for public health measures impeding constitutional rights—one is more clearly applicable to emergencies (Jacobson v. Massachusetts, which gives deference to public health authorities); the other arguably applies more commonly to non-emergencies: (analysis of whether the law is neutral and applies generally (Smith), and the strict scrutiny of laws that are not neutral and generally applicable (Sherbert v. Verner)). The Supreme Court and lower courts have intertwined these two bodies of law during COVID-19.

Public Health Emergencies & the Law

First, laws that are enacted in the emergency may be evaluated under caselaw that avoids some of the constitutional analysis. While Lindsey Wiley and Stephan Vladeck argue that emergencies suspend the constitution, the prevailing theory is that it is constitutional to infringe on some otherwise enforceable rights during an emergency. Jacobson v. Massachusetts, 1905, is the landmark case allowing vaccine mandates in emergencies. Some Supreme Court justices would analyze free exercise cases using Jacobson. While many lower courts explore both lines of law, the Gorsuch and Kavanaugh concurrences in various cases probably indicate a move by the Court to first amendment caselaw over public health emergency caselaw, Kagan, Sotomayor, and Breyer notwithstanding.

During the pandemic, courts applied strict scrutiny or rational basis tests to the many COVID-19 rules and regulations passed by executive orders and legislatures. Many infringed other rights like the right to interstate travel, or the freedom to collect rent or to open businesses. Lower courts have cited Jacobson to avoid a deep dive into free exercise claims, alleviating the need for judges to assess religious practices and beliefs in the COVID-19 pandemic. Yet some courts (and the Gorsuch and Kavanaugh viewpoints) requires strict scrutiny of laws that arguably burden free exercise, intentionally or not. Lower courts have mixed caselaw on the role of COVID-19 executive orders, regulations, emergency measures, etc.

Free Exercise Caselaw

a. Smith and Neutral, Generally Applicable, (Maybe Exception-less) Laws

Second, in free exercise of religion cases, the view that laws which are neutral and generally applicable may avoid strict scrutiny (the Smith holding) is vulnerable and changing. Prior to Smith, in Bowen v. Roy (1986), (use of a social security number was a neutral requirement designed to prevent welfare fraud and did not violate the free exercise clause) recognized that a requirement that “indirectly and incidentally calls for a choice” does not require strict scrutiny, a precursor to Smith. In the vaccine sphere, mandates as a condition of participation, employment, or the receipt of benefits could arguably be seen as a choice as well. So far, there are not criminal penalties or fines, an outcome-determinative absence to the Bowen Court.

The movement away from finding laws neutral and generally applicable as per Smith is accomplished through two lines of reasoning. One line of reasoning evidences an unwillingness to find a law neutral: broadening the concept of a peer group for the sake of neutrality. (Justice Kavanaugh, concurring in Roman Catholic Diocese of Brooklyn v. Cuomo; the Court per curiam in Tandon v. Newsom). Both cases see a real stretch to likening church to businesses. By comparing churches to grocery stores, Justice Kavanaugh found that a New York law designating orange and red zones impeded free exercise. Yet were the law viewed more realistically, it called for closing many businesses altogether and gave places of worship a better deal, even in red zones. And, at the time, some church services caused significant COVID-19 transmission.

In Tandon, California was enjoined from enforcing a law limiting gatherings at homes to three households regardless of whether the gathering was religious or secular. The Court declared that a California law that treats “any comparable secular activity more favorably” calls for strict scrutiny. That is not in the spirit of Smith and may eventually be the end of it.

The second style of reasoning that chips away at Smith is the Gorsuch reasoning, expressed in Friday’s dissent in John Does 1-3 v. Mills, a healthcare worker mandate case, that if a law has any exception, it must be subject to strict scrutiny when facing a free exercise challenge – if a medical exception were allowed or legislated, to Gorsuch, to deny a religious exemption would call for strict scrutiny of the law. (See Fulton v. Philadelphia where discretionary individual exceptions prohibit denial of religious exemption.)

b. Old Free Exercise Cases

Strict scrutiny requires a compelling state interest and that the law uses the least restrictive means to achieve it. Sherbert v. Verner (1963) allowed unemployment benefits for a Seventh Day Adventist who refused to work on Saturdays applying strict scrutiny. (See Wisconsin v. Yoder (1972) as well.) Even with strict scrutiny, there are examples of failed free exercise claims against legislation. For example, in U.S. v. Lee (1982) the Court rejected a religious exemption to social security participation. In Bob Jones University v. U.S. (1983), the Court permitted the IRS to revoke tax exempt status as the relevant provisions to which the plaintiff objected were designed to prevent racial discrimination, a compelling state interest.

The Court addresses compelling state interests and legitimate and rational ones, applying varying levels of scrutiny. The new and relevant COVID-19 cases are analyzed in these two articles. Religious Exemptions | Voices in Bioethics (columbia.edu) Weeding Out Disingenuous Emergency Orders | Voices in Bioethics (columbia.edu)

The legal paradigm shift is toward applying strict scrutiny more often to laws that may violate a religious belief, limiting the exception for laws that are neutral and generally applicable under Employment Division v. Smith. It is not (yet) a movement to barring all laws that restrict religious exercises or burden religious beliefs.

COVID-19 Vaccine Mandates

Clearly the vaccine requirements were not designed to hurt the religious, and they really would help them and others collectively. But there are arguments that the mandates became necessary only to address refusals, some (even many) of which are likely religious. These hurt the argument that the laws are neutral. Even absent a finding that a law is generally applicable, a vaccine mandate’s tight causal connection to a solution to the pandemic would have been seen as likely to render it constitutional under regular, old-fashioned, strict scrutiny.

Least Restrictive Means: A Changing View

But with the current Court, that seems less likely because the emphasis has moved from the compelling state interest (many parties agree that the state interest is compelling as a given) to reorienting the least restrictive means analysis to a need to justify why a religious exemption would be worse (more dangerous) than a secular or medical one. (See Fraternal Order of Police v. Newark, 170 F. 3d 359 (3d Cir. 1999) and the Gorsuch dissent in Does 1-3 v. Mills, which very well could become the majority view.) Below are some arguments addressing that reasoning.

a. Bigger Impact if Many People Achieve Exemptions

One line of arguing in favor of requiring people to vaccinate despite their free exercise claims would assert the collective impact of a potentially bigger bucket of refusals compared to secular or medical refusals would be more detrimental to the state interest. Even so, I find that the bioethics discourse emphasizing the fear of fraudulent religious claims is a bad path as it could be used to indicate that mandates were designed to target those expected to claim religious exemptions. By revealing a possible intent, any chance of applying Smith would end, and it would be more challenging to survive a strict scrutiny analysis. It is also important to note, the people in question in Mills are healthcare workers, not the general public.

(I would caution that something like, “many people are already vaccinated, so the mandate is obviously geared to target the religious” might be a successful line of argument.)

The Gorsuch logic could hold true for all individual excuses–in the general public, any individual refusing for any reason poses no different risk to others. But the additional risk as the numbers grow should matter. If the logic were taken too far, the risk would snowball as more people choose not to be vaccinated, for why not?, if they each only create the same risk to others as someone with a medical exemption. Here, the collection of people prevents herd immunity, so each additional exemption may be more medically costly that the last, as a roadblock to herd immunity (or less costly if herd immunity is achieved). It is difficult to argue each one case does not contribute in a collective way, especially where herd immunity is not reached. (Herd immunity, absence of a public health emergency, and a less or non-transmissible diseases would change the calculus.) In some areas of policy, asking what harm only one person’s exemption would cause may put us on the road to lawlessness.

b. A Different Duty

Another argument against the Gorsuch line of reasoning has to do with ethics and what society asks of people. A medical exemption can occur for many reasons. For example, a doctor may grant an exemption because the vaccine will do nothing for the person based on anticipated poor immune response (indicating such a person would not be providing anything helpful to society by becoming vaccinated) or because of some other danger (an increased likelihood of a severe or deadly allergic reaction). (A law would be more likely to stand if it provided criteria to avoid individualizing exemptions. See Rader v. Johnston). By driving the focus to arguing that people categorically pose the same risk to society or themselves whether the exemption is religious or medical, Gorsuch ignores an important ethical distinction. The risk they would be taking is the huge distinction, not the risk they would be causing. Even in the narrow context of a healthcare worker mandate, the risk to the hospitalized and other workers may be the same, but the risk to oneself is not.

A person seeking a religious exemption is being asked to take the average risk (very low) for the good of society and themselves, while the person seeking a medical exemption would be asked to take either a futile vaccine or an elevated risk of severe or fatal reactions. Futile wastes the vaccine doses. Expected allergies or complications are an important distinction. Ending medical exemptions asks much more of the individual in physical, objective terms. A good Samaritan is protected because of arguably doing more beyond a morally required duty. Asking those in need of medical exemptions to take additional risks, or to be good Samaritans, while asking the religious to fulfill an ordinary obligation is a noteworthy distinction. (There is significant literature and debate on a duty to rescue and what the best moral duty would be.)

Put differently, the general community of healthcare workers is being asked to do one thing, while the healthcare workers who have medical conditions contraindicating vaccination would be being asked to do another thing, take a different risk. Vaccination is not really the same action to both groups. To everyone else, both religious and all others not seeking medical exemptions, the ask is the same.

The counterargument speaks to various points in the analysis. “You are just being asked to do what everyone is being asked to do” speaks to the spirit of accepting neutral laws, yet is relevant even if Smith does not apply. It is the fundamental question of all free exercises–religion may support deviation from a general rule. The idea that the exception is to a general rule makes sense here.

The difference in the risk to society of not participating is not the entirety of a least restrictive means analysis. From the starting point of drafting a mandate, the medical exception is the least restrictive means because without it, there would be an unreasonable risk to individuals with medical predispositions. With it, that risk is lowered. A forward looking approach to the least restrictive means would provide better caselaw than looking at the harm. That is, drafters likely thought, without a medical exemption some predictable bad outcomes would occur. The mandate then included a way to avoid those problems. Seen from one angle, that is the least restrictive.

The gravity of the medical possibilities justifies a medical exemption. It does not justify a religious one. The religious one should need to stand on its own.

c. Both Arguments Together

That ties in the first counterargument, that simply, collectively, having more people unvaccinated, even if each poses a similar risk, will lead to more difficulty reeling in the virus, ending or preventing the harm of the pandemic, keeping others who seek healthcare safe in that process, or decreasing hospitalizations. They are essentially the government interests in mandates. Some reasoning indicates that the absence of a religious exemption itself means the least restrictive means were not used. For most laws, a religious person’s noncompliance for a religious reason would have a result similar to a secular person’s noncompliance for a secular reason. That should not be the only logic applied.

The Big Picture

If even in a pandemic, public health cannot prevail over religious objections, then it is unclear which public health measures that burden religion will be permissible in the future. But it is worth remembering that the mandates can stand (for example, in New York when the Northern District granted a TRO later overturned by the 2nd Circuit, the court did not enjoin the entire mandate) and will be generally enforceable with respect to people not claiming religious exemptions and those whose religious exemptions fail. Religious exemptions are not automatic and can require statements, paperwork, or attestations, and many people might not follow through with them.

The value of religious exemptions in free society is immense, but so is the idea that we must comply with a set of laws enacted by elected officials. A balanced approach is necessary. The chipping away at a valuable case that levels the playing field between the religious and nonreligious is underway. Exemptions might pose a danger in some communities. Herd immunity (an elusive percentage with a changing virus) may be possible with religious exemptions intact in many areas, so a fear of (possibly fraudulent) exemptions should not be overstated.

The conscientious atheist voice tends to get lost in the religious arguments. The free exercise clause and the establishment clause exist to promote freedom, not to allow one sect to endanger people, and not to privilege a certain group. They have a role in preventing theocracy, and preserving minority viewpoints, important aspects of freedom in the US Constitution. To err on the side of religious freedom when there is no danger (and no cost so society as there would be in religious and conscientious objections to paying taxes) makes sense in the big picture endeavor of lasting freedom. Strict scrutiny may give the public more assurance that the mandate is necessary and that the constitutional issues were addressed in the deeper way.

All things considered, shouldn’t the attention move to places that forbid vaccine mandates like Montana, Utah, Texas, Michigan, Indiana, Arkansas, Tennessee, and Georgia, where state worker vaccine mandate bans are in place? Or the 21 states that forbid vaccine passports? Legislative overreach should face challenges by those who see keeping people safe and protecting society’s most vulnerable as a tenet of their religion.

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