By David G. Bjornstrom

Vaccine Mandates Must Allow Religious Exemptions

November 4, 2021
Column: Catching Air
Many of us as Christians have moral and religious objections to the Covid vaccine based on the fact that aborted baby tissue was used in its development and testing. There may be other religious objections as well based on beliefs about God’s design for the human body and bodily autonomy. When employers, public schools or other institutions try to mandate the vaccine, we should be entitled to religious exemptions, just as there are medical exemptions available to those who cannot take the vaccine for medical reasons.
The First Amendment and Civil Rights laws require government and employers to accommodate and not discriminate against sincerely held religious beliefs. This means they cannot treat religious objections to the vaccine any less seriously than medical objections.
Since virtually all vaccine mandates allow medical exemptions, including exemptions for persons with a history of myocarditis or allergic reactions, those mandates are legally required to allow religious exemptions as well.
This was partially tested just recently in a US Supreme Court Case, John Does v. Janet T. Mills, Governor of Maine, in which the Court was asked to put a temporary hold (“injunction”) on a Maine law requiring health care workers to be vaccinated.
The law did not allow any religious exemption even though it had a broad medical exemption, including exemption for people with mere “trepidation” over vaccination. The Supreme Court was not at this stage making any decision about the validity of the law… only whether the law should be put on hold during the time it would take for other lawsuits determining the law’s validity to work their way through the legal system.
Six of the nine justices denied the injunction, which allowed the Maine law to stand temporarily, but two of those six, Justices Kavanaugh and Barrett, the newest Justices on the Court, did so without expressing any opinion about the validity of the law. Those two simply chose to postpone their decision until a future case when the issues will be more fully briefed. The other three Justices, namely Gorsuch, Thomas and Alito, wrote a detailed opinion expressing their belief that the Maine law was unconstitutional.
While a majority of the Court did not agree to the temporary injunction, the underlying case is still very much in play as it works through the Court process with three Justices on record as believing Maine’s law unconstitutional and two others, Kavanaugh and Barrett, undeclared.
The written opinion by Justices Gorsuch, Thomas and Alito outlines the legal issues and is persuasive.
The Gorsuch, Thomas and Alito opinion starts from the established legal principles that apply to any law burdening religious beliefs. The Maine law in this case clearly burdens the religious beliefs of individuals who believe the Covid vaccines have an impermissible connection to aborted fetal cell lines.
Such laws are not allowed if they fail two tests:

1. The offending law is not “generally applicable and neutral toward religion.”

Laws cannot generally burden the exercise of sincerely held religious beliefs while providing exemptions for other groups, nor can they treat any comparable secular activity more favorably than religious exercise. Maine’s law was not “generally applicable” since it has a system of individualized exemptions giving preference to those who have nonreligious justifications.
Maine’s law was not “neutral toward religion” since the health care workers with religious objections were not allowed to keep their jobs while those who had medical exemptions could continue working by taking alternative measures to safeguard their patients and co-workers, such as the use of protective gear and regular testing. This was plain and simple religious discrimination since there was no reason to believe that a worker who is unvaccinated for medical reasons is any less likely to spread or contract the virus than someone who is unvaccinated for religious reasons.
2. The State cannot prove it has a “compelling interest” to support the law and that it “employs the least restrictive means available.”
Justices Gorsuch, Thomas, and Alito conceded for purposes of this case that stemming the spread of Covid might qualify as “a compelling interest,” but they emphasized that it “cannot qualify as such forever,” especially with the already wide distribution of vaccines among so many who do not object to them and ongoing medical advances developing new and better treatments for the disease. As expressed in their opinion, “If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
Even if the state’s interest was “compelling,” the Justices did not believe that the Maine law employed the “least restrictive means” available to stem the spread of Covid since the state had already determined that health care workers with medical exemptions could safely work with some safeguards in place. Vaccination rates in Maine are already high so there was no reason to believe it is essential to vaccinate religious objectors. And many other States make do with religious exemptions from their comparable vaccine mandates.
Justices Gorsuch, Thomas, and Alito emphasized in their opinion that the Court has long held that the loss of First Amendment freedoms, including religious liberty, even for minimal periods of time, constitutes an irreparable injury under our legal system.
In summary, while the Court has not yet spoken definitively, there are strong reasons to believe that any vaccine mandates imposed by employers, public schools or other public institutions will need to allow for religious exemptions.
In fact, maybe it goes a lot farther than that.
Isn’t there an overriding Constitutional right to refuse involuntary medical treatment, including vaccines, whether or not there are medical or religious objections? Stay tuned…

David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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