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Opinion: Religious exemptions to the vaccine should be rare — but they should exist

Securing public health in a pandemic is surely a compelling interest that justifies vaccine requirements. But that shouldn’t neglect First Amendment principles

Jessica Hill, Associated Press

Federal law strikes an important balance between the rights of employers to take actions to keep their employees and customers safe from exposure to viruses, and the rights of employees to seek an exemption under workplace rules that would require them to violate their religious beliefs. That balance should not be disturbed.

In an op-ed published in The New York Times earlier this week, former Pastor Curtis Chang argues that religious exemptions to employer vaccination requirements should never be permitted under Title VII — the federal law that requires employers to provide a reasonable accommodation to their employees’ sincerely held religious beliefs or practices. Such accommodations should not exist, argues Chang, because “there is no actual religious basis for exemptions from vaccine mandates in any established stream of Christianity.”

As a member of The Church of Jesus Christ of Latter-day Saints, I am inclined to agree with Chang’s argument that Christianity, properly understood, does not require abstention from vaccines. My church’s doctrine, as I understand it, provides no basis for a religious objection to vaccines. My church has an official policy in support of vaccination in general and has specifically urged members to receive the COVID-19 vaccine in particular. A member of our church claiming a religious objection to any vaccine would be out of harmony with this clear and consistent counsel. So I am sympathetic to Chang’s argument that Christian teachings don’t support religious objections to vaccines.

But as a lawyer, the question is not whether a person’s religious beliefs are correct according to the authorities of their denomination. Heretics have as much a claim to religious freedom as the orthodox. A person may sincerely hold a religious belief — and claim the protection of Title VII for that belief — even if that belief is heretical. The Supreme Court has repeatedly held that the First Amendment forbids courts from deciding who is right and who is wrong on a disputed question of religious doctrine.

The question under Title VII is whether the objection to vaccination is a sincerely held religious belief. To be clear, that is not — and should not be — an easy hurdle to clear. Title VII does not protect a mere preference not to take a vaccine, for example. Nor does it protect a belief that a vaccine is simply unsafe or ineffective, or part of a conspiracy to exert political control. Nor does it — or should it — protect a person who disingenuously cloaks such secular objections in religious language.

Also, establishing a sincere religious objection to vaccines is only the first step under Title VII. Once you clear that hurdle, the next question is whether accommodating that religious belief is possible without imposing an undue burden on the employer’s right to maintain a safe workplace.

Depending on the industry, such accommodations may be workable. In some workplaces, an employer may be able to accommodate a religious objection to vaccines without threatening the safety of their employees or customers by requiring unvaccinated employees to be regularly tested, physically distanced from other employees and customers, and to wear a mask. Working from home may be an option. If the employer is already providing such accommodations for those who cannot be vaccinated because of a health condition that genuinely prevents vaccination (an accommodation that may itself be required under the Americans with Disabilities Act), it may be difficult to justify not providing them for those with a genuine religious objection to vaccination as well.

When an employer can take such measures without burdening its business, Title VII requires the accommodation. But if such measures would create more than a minimal burden on the employer, the employer can legally fire the employee for not following the employer’s rules for a safe workplace, regardless of their religious objection.

Chang’s op-ed only addresses Title VII, and the legal issues are a little different when the vaccine mandate comes from a government agency rather than a private employer, but the law still balances individual rights against public health. A vaccine mandate that applied generally to everyone and made no provision for any exemptions at all wouldn’t violate the First Amendment, because of a 1990 Supreme Court decision that established that laws that apply generally to all people and do not single out religious practices are valid under the First Amendment even if they burden religious practices.

But the Supreme Court’s recent religious freedom decisions seem to suggest that if a state or federal government vaccine requirement contains accommodations or exceptions for nonreligious reasons, but not for religious accommodations, the lack of religious accommodations may trigger “strict scrutiny.” That means that the government would have to prove that the vaccine requirement is necessary to accomplish a compelling government interest, and that there is no way of accomplishing that interest that is less burdensome on religious beliefs.

Securing public health in a pandemic is surely a compelling interest that justifies vaccine requirements, as the Supreme Court has recognized for more than a hundred years. But if there is a way to effectively accomplish that goal while accommodating genuine, sincere religious objections, governments and employers should try do so — such as, for example, extending already existing health accommodations to sincere religious objectors.

One last thing: Chang is right that the rising number of people attempting to claim a religious exemption to vaccine requirements is concerning. Effective protection from deadly viruses requires “immunizing a very high percentage of the population.” If the number of people receiving religious exemptions grows high enough to threaten the likelihood of achieving herd immunity through vaccination, it may be that an absolute mandate without any accommodations becomes necessary to secure public health.

That risk is a good reason to closely scrutinize such claims so that they remain rare exceptions and don’t threaten public health — or the continued viability of religious accommodations for genuine religious objections to vaccination.

Jared K. Cook is an attorney in Rochester, New York. He focuses his practice in the areas of employment litigation, commercial litigation, religious freedom, appeals and professional ethics.