(– notes on the state of exemptions–cases relevant to vaccine mandate challenges)

While vaccine mandate cases should turn on whether they will work to prevent harm or resolve the pandemic, it is more likely that they will turn on the distinction (or lack thereof) between the harms caused by a secular or religious failure to vaccinate, something Justice Gorsuch has already noted.

There are two operational legal mechanisms for public health—one is more clearly applicable to emergencies (Jacobson-style 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, generally applicable, and that may infringe the fundamental right to free exercise of religion (Sherbert)). The Supreme Court and lower courts have intertwined these two bodies of law during COVID-19.

Jacobson-Style Analysis

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 usually enforceable rights during an emergency. (See my article on legal treatment of an assortment of COVID-19 emergency orders.) Jacobson v. Massachusetts, 1905, is the landmark case allowing vaccine mandates in emergencies. As comprised, the current Supreme Court majority does not favor an analysis using Jacobson in religion and arguably in cases where other constitutional rights are infringed. While many cases 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.

Free Exercise Caselaw

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. The reasoning behind the change itself is two-fold. One line suggests an unwillingness to find a law neutral by 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. For example, many people would argue a church is like a theater in that people spend time there sitting in close quarters. And, at the time, some church services caused significant COVID-19 transmission. Of course, the analysis could then be different because the right to attend a church service is considerably more fundamental, but under Smith, a law that was not intended to hurt religion would likely stand. 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 other style of reasoning that chips away at Smith is the Gorsuch reasoning, expressed in Friday’s dissent in John Does 1-3 v. Mills, 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.

Historical Caselaw

One important takeaway is that prior to Smith, in free exercise cases, those defending laws often found success even if the law were strictly scrutinized. During the pandemic, various courts applied strict scrutiny or a rational basis test anyway. Sometimes, there are compelling government interests in laws and the least restrictive means to accomplish the goal still changes people’s ability to exercise their religion. Lower courts have mixed caselaw on the role of COVID-19 executive orders, regulations, emergency measures, etc. Many infringed other rights like the right to interstate travel, the freedom to collect rent, or to open businesses. Some called for legitimate government purposes while other courts required compelling state interests. Smith allowed lower courts to avoid a deep dive into free exercise claims, alleviating the need for judges to assess beliefs, sincerity, and burdens in the COVID-19 pandemic when evaluating neutral or generally applicable laws. Some lower courts did not apply Smith and looked to strict scrutiny.

A return to applying Sherbert v. Verner, or a Sherbert-like test, or  (requiring a compelling state interest and that the law uses the least restrictive means to achieve it; allowed unemployment benefits for Seventh Day Adventist who refused to work on Saturdays) is possible, and maybe likely. (See Wisconsin v. Yoder (1972) as well.) There are examples of failed free exercise claims against such 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.

In Bowen v. Roy (1986), the Court held use of a social security number was a neutral requirement designed to prevent welfare fraud and did not violate the free exercise clause. That is sort of a precursor to Smith. Also, the Bowen Court recognized that a requirement that “indirectly and incidentally calls for a choice” does not require strict scrutiny. 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, an outcome-determinative absence to the Bowen Court.

Recent Cases

In Fulton v. Philadelphia, the Court held the city ordinance that limited contract renewal with entities that discriminated against same sex couple (in foster care) was not neutral and generally applicable. The Court clarifies that the contracts’ permitting exceptions under “the sole discretion of the commissioner” negated general applicability. Two important points are the emphasis on outcomes of allowing any exceptions—like in the vaccine cases, the Court is looking to whether a religious exception would have no different result than a secular one. (This is consistent with Fraternal Order of Police v. Newark and the Gorsuch dissent in Does 1-3 v. Mills). Applying strict scrutiny, the Court noted a compelling state interest, but felt that giving the exemption would not undermine the state interest. The Court did not look back to Bob Jones University v. US despite an arguably quite similar compelling interest in preventing discrimination against a protected group (perhaps because the law there may not have had exceptions). The Court cited and applied Sherbert (which allowed unemployment benefits to a Seventh Day Adventist who would not work on Saturdays). One observation is that the Court may lean toward noting that a compelling state interest is not undermined by the exception. (In the Fulton v. Philadelphia case it seems somewhat like permitting discrimination.) As more individuals and entities bring first amendment lawsuits, state interests in preventing discrimination could be increasingly impacted.

New York HC Workers Complaint

Status–2nd Circuit reversed the order by the Northern District preventing enforcing the mandate against those claiming religious exemptions. So, now mandate is enforceable (people can be fired for noncompliance).

The complaint conflates the fetal cell line claim and the claims of risk of the vaccine implying the opposition on religious grounds would be lessened as proof of safety increases. To me, this undermines the plaintiffs’ case significantly.

Hobby Lobby and the Concept of Corporate Free Exercise

Yet the Burwell v. Hobby Lobby case (in which Hobby Lobby wanted to avoid paying fines for its failure to have health insurance cover contraception in violation of the ACA) applied strict scrutiny and held that other less restrictive means to achieve the state goals in the ACA were evidenced by religious exceptions for personal employers and for non-profits. Hobby Lobby had several implications. First, a for profit corporation was deemed a person for religious rights purposes and the Court allowed a decision that would harm unrepresented third parties. Second, as Ruth Bader Ginsburg noted in her dissent, Smith would have precluded the free exercise analysis from requiring strict scrutiny as the law applied generally.

But Hobby Lobby addressed a codified least restrictive means provision in the Religious Freedom Restoration Act, an act meant to limit Smith by requiring a compelling interest when free exercise is “substantially burdened” not meant to annihilate Smith and declared invalid as related to state law. In City of Boerne v. Flores (1997), the Court struck down most of the RFRA, holding that the separation of powers prevented Congress from requiring strict scrutiny across the board for state and local laws. But later in Gonzalez, the Court held some of the RFRA was valid as it applied to the federal government. Thus it was later used in Hobby Lobby in a way that significantly changed the role of religion in interacting with federal law.

“After the Court’s decision in Boerne, Congress responded with a narrower religious liberty law, the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court rejected an establishment clause challenge to institutionalized persons aspect of RLUIPA in Cutter v. Wilkinson (2005).” See https://mtsu.edu/first-amendment/article/1092/religious-freedom-restoration-act-of-1993

While Biden’s federal vaccine law faces lawsuits, they are not free exercise cases as the law contained a provision for religious exemptions. Employers will have to deal with exemption requests, which they can evaluate in compliance with the various laws prohibiting discrimination like Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission guidance, etc. The federal executive order will not be the subject of a free exercise or RFRA or the subsequently adopted the RLUIPA.

Employers will sort through exemption requests as they do in states with religious exemptions to vaccine mandates.

My docs:

Religious Exemptions | Voices in Bioethics (columbia.edu)

Weeding Out Disingenuous Emergency Orders | Voices in Bioethics (columbia.edu)