Get ready for religious-based objections to employer vaccine mandates

The Court's refusal to reconsider TWA v. Hardison may prove significant.

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For the fall, many universities are requiring students and employees to be vaccinated to return to campus. Last week I wrote about some of the policy concerns with such mandates. Here, I will flag some legal concerns. There is some portion of the population who will not receive the vaccine for religious reasons. For example, some Christian Scientists may decline to receive the vaccine. The New York Times discusses many evangelical Christians who may oppose the vaccine. And I'm sure there are others.

Will Universities systematically exclude people with faith-based objections to the jab? At least students may be offered the opportunity to stay on Zoom. But employees who refuse to get vaccinated may not get that accommodation. Indeed, they may be terminated. Religious employees may seek a religious accommodation. But under current Title VII law, those accommodations are narrow.

In December, the EEOC released guidance stating that private employers can generally mandate that employees get the COVID-19 vaccine. There are two likely types of exemptions. First, there may be some disability-related justifications that would exempt a person from a vaccine-mandate. Second, there may be some religious-related justifications that would exempt a person from the vaccine-mandate. EEOC offers this FAQ:

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee's sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined "undue hardship" under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Here, EEOC is relying on TWA v. Hardison (1977). Justice White's majority opinion found that religious exemptions that create "more than a de minimis cost" are an "undue hardship," and need not be granted.

At the time, I predicted that TWA was on the chopping block. Alas, yesterday, the Court denied review in a case to reconsider TWA v. Hardison. Two (and probably three) Justices would have granted cert. That decision may prove significant. People of faith will now have little choice: follow employer vaccine mandates or risk losing employment.

NEXT: I am really going to miss Justice Breyer

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  1. Need to dispense with most religious exemptions.
    In reading the 1st amendment we can consider that such brief statements were broad ideals of the day. The details of implementation would eventually constitute thousands of laws, legal cases and interpretations.
    It seems unlikely that originalists wanted a giant loophole of any ‘sincerely held belief’, even when such stated belief may clearly be a whim or affectation, and possibly entirely contradictory to the actions and behaviors of the one claiming the belief.

    1. So, “freedom of religion” just means freedom to worship, then, and there is no 1st Amendment right to act in accordance with your religious beliefs outside the four walls of home or church/temple/mosque?

      Also, so what if there are a ton of court cases. Move to a one party ethnostate if you want solidarity. With diversity comes things like thousands of laws, legal cases, interpretations, etc.

      1. As usual, it’s a little more nuanced than that.

        Suppose you have two religious groups. One of them only wears purple; the other hijacks airplanes and flies them into the World Trade Center. I think most people here, including me, would say the first group should be left alone and the second group should not be left alone. The difference between the two groups, of course, is that one of them is causing harm to other people and the other isn’t. And 90% of the time, that’s going to resolve the issue: Are your religious beliefs hurting other people?

        Now, suppose an employer requires employees to wear black and white uniforms. Should the employer be required to make an accommodation for the purples? That, too, depends on the harm: How much will the business be hurt if it has to make an exception for people whose religion won’t allow them to wear black and white uniforms. And that will be case by case. One employer may have a legitimate business reason while another doesn’t.

        (By the way, there is a religion in India that forbids wearing clothes altogether; they go about their business bare assed. And it is illegal to discriminate against them. Meaning that if you are a Fortune 100 company with an opening for a receptionist, and one of them shows up butt naked for a job interview, you can’t legally hold it against them or refuse to hire them — or require them to wear clothes while they’re on duty.)

        In the case of the vaccine, my personal view is that if someone’s religion is preventing them from helping to achieve herd immunity, that’s a legitimate reason for an employer to not hire them.

        1. But of course, it’s not necessary for a religious person to have a vaccine for there to be herd immunity.

          Likewise, it’s not necessary for a religious person to be conscripted to fight in order for there to be an army.

          In certain select professions, it may be permitted to discriminate against these people, if the religious belief would interfere excessively with the mission statement. For example, a religious person who devoutly couldn’t fight would be legitimately discriminated against by the US Army for positions which required fighting. Or a profession that had a special emphasis on needing vaccinated workers (for example dealing with immunocompromised patients).

          But just in general? That would begin to look like religious discrimination.

          1. “But of course, it’s not necessary for a religious person to have a vaccine for there to be herd immunity.”

            Herd immunity requires a high enough percentage of the population to be immune as individuals. The % of immunity that results in herd immunity will vary among viruses, based on how infectious it is and how it spreads. Measles, for instance, is highly infectious and health officials start to worry when vaccination rates drop below 95%.

            The herd immunity threshold for COVID-19 is yet to be determined with precision, undoubtedly. If we assumed 70% to be a reasonable guess, then what if half of the population claims a religious exemption from COVID vaccine mandates? Then developing herd immunity against COVID would be impossible, and you wouldn’t even need 10% of the population to object to measles vaccines to destroy herd immunity.

            Thus, your assertion that herd immunity doesn’t depend on religious people being vaccinated is clearly a false one, unless you assume that all religious objectors would add up to no more than a couple % of the overall population.

            This is going to be an issue for any desired result that depends on the sum of individual contributions. The more people try and opt out of contributing, the less likely the desired result becomes. That is exactly why the standard is what it is, that the claim for an exemption cannot impose an “undue hardship” on the business. (And I would argue that the same reasoning would apply to exemptions from government mandates, which it seems to do when you consider even the language in the RFRA, as the government can impose burdens on the free exercise of religion if it is to serve a “compelling” government interest in the most narrowly tailored way. If the number of religious pacifists was such that the country was unable maintain an army large enough to defend the country, I would expect courts to narrow the ability of conscientious objectors to claim exemption from a draft, should one be used again.

            Krychek_2 has a good point. It is easy for society to tolerate religious people that want accommodations for their religious beliefs when they impose only small burdens on the rest of us that we can adjust to fairly easily. Now, it is not acceptable to decide whether to grant a religious exemption based on whether we respect the actual belief being asserted, because that then makes it about whether the religious view is popular enough.* But if the standard can be applied based on the level of harm or burden imposed on others if the exemption were granted, then that is correct, in my opinion.

            The basic idea here is that a religious exemption is not based on reasoning and evidence. It is simply asserted without rational justification. A person refusing to follow a law or rule from an employer just because they don’t feel like it is SOL. Claim that your religion calls on you to disobey, on the other hand, and we are supposed to bend over backwards to accommodate you? Protecting religious minorities from abuse by a majority is why we have a Free Exercise Clause in the Constitution. But when religion is used as a get-out-of-logic-free card to avoid something you just don’t feel like doing, then we don’t need to accommodate you.

            *This is why I get frustrated by “War on Christianity” arguments about freedom of religion when it comes to baking cakes and the like. Christian conservatives are clearly crying about religious freedom in these cases mostly because they agree with the beliefs that the baker is claiming to hold that prevent him from baking cakes for gay weddings or the county clerk that wouldn’t sign marriage certificates for same-sex couples. It isn’t the general principle that motivates them to speak out about it and support the baker and the clerk, but loyalty to a fellow Christian and concerns that they might be required by the woke mobs to “approve” of gay people as well.

            1. “Thus, your assertion that herd immunity doesn’t depend on religious people being vaccinated is clearly a false one, unless you assume that all religious objectors would add up to no more than a couple % of the overall population.”

              Except that’s exactly what religious objectors add up to. Just a few % of the population. If that.

              “Protecting religious minorities from abuse by a majority is why we have a Free Exercise Clause in the Constitution”

              And yet, you seem to be willing to trample their rights and beliefs as the majority.

              *This is why I get frustrated by “War on Christianity” arguments about freedom of religion when it comes to baking cakes and the like.”
              You talk about religious freedom and protection from majorities…or majority opinions. But your argument is the cake argument? That entire series of cases was an attempt by the power of the majority and state to crush some little guy’s religious freedom.

              1. “Except that’s exactly what religious objectors add up to. Just a few % of the population. If that.”

                My point is that this is only true until it isn’t. If religious objectors to laws or policies that benefit society as a whole amount to enough people to produce harm to those that still have to follow the rules, will you still support their right to object?

                “That entire series of cases was an attempt by the power of the majority and state to crush some little guy’s religious freedom.”

                Right, and protecting the minority of the population that is gay from discrimination had nothing to do with it. It must be so hard to be a “little guy” that follows a religion that 70% of the population follows. The anti-gay marriage bakers out there feel fine discriminating against gay people because gay people are a small minority of the population. Certainly a smaller group than the fundamentalist Christians that are bigoted against LGBT folks. And, most of their fellow Christians that aren’t fundamentalists won’t call them out for their bigotry. By no means are these people deserving of the “little guy” status that is typically used to frame a debate on who is the “real” victim in a controversy.

                Saying, “But it is my religion that tells me to hate black people and refuse to serve them!” doesn’t fly, so why should religion be allowed as an excuse to discriminate against LGBT people?

                “And yet, you seem to be willing to trample their rights and beliefs as the majority.”

                The whole issue is over religious exemptions from generally applicable laws, or generally applicable policies by private organizations. I will hold rights to believe what you want and act on those beliefs as virtually absolute when they do no harm to other people or yourself. I will give a lot of deference to individual rights when other people are merely inconvenienced in minor ways. But when individuals claim religious rights and want to be exempt from what most people have generally agreed benefits the whole of society, resulting in more than inconvenience that is relatively minor, then those individual religious rights are conflicting with rights held by others. It does not “trample” religious rights to balance them with the rights and needs of other people.

  2. For evangelicals, the reason to dodge vaccination may be ignorance, or anti-social belligerence, but seems unrelated to religion — although the religion could provide a handy pretext for dishonest claimants.

    (Those with a medical reason for exemption — chemotherapy, for example — should be exempted and should not be diminished by association with the disaffected and dumb.)

    1. What Kirkland fails to understand is that an employer’s ability to totally dismiss religion also establishes the right of another employer to mandate adherence to religion.

      For example, the Marriot family (which owns the hotel chain by the same name) are Mormons. Should everyone working in a Marriot be forced to attend the LDS church? How about requiring them to follow the Morman prohibitions against caffeine, tobacco, & alcohol — all of which can easily be detected in a daily urine test.

      And Wyman’s Blueberrys is Jasper Wyman of the Maine Christian Civics League, an ardent prohibitionist. Should he be able to mandate year-round temperance as a condition of seasonal employment raking blueberries for a few weeks in the summer?

      I don’t think that Kirkland realizes the extent to which he is playing with fire…

      1. The Congregation Of Exalted Reason strives to be reasonable, and informed, with respect to all matters involving special privilege for religion.

      2. The Rev is basically correct that sincerity is everything here. Some faiths truly do restrict medical treatment. But there are potentially many evangelicals who will have reason to lie and recast their political objection to vaccine as religious.

        And our court system does an awful job of policing sincerity.

        1. I am not evangelical, however, I have no intention of taking one of the vaccines produced with, or in conjunction with, aborted baby parts. (Unless it’s a black baby, then I can feel all white supremacist and howl in cannibalistic victory when I get my jab.)

          1st century Christians had no problems paying taxes to Caesar, but when they had to wave the incense around on the alter and pretend that Caesar was a god and not a mortal man like you and me, then there were problems. You sound like one of those Romans saying “just wave the incense, you don’t have to believe he’s a god, I don’t, but it’s good for the Empire to have a the provinces believe that Augustus was a god.”

          Can a court really look into someone’s heart anyway?

          1. How do you square your ostensible piety with your multifaceted bigotry?

            1. We just emulate you, as the class A bigot you are

              1. Calling a bigot a bigot sure riles our vestigial bigots these days . . . decades ago, the racists, misogynists, anti-Semites, gay-haters, and others wanted everyone to know that they were intolerant and that they called the shots.

                Now they’re just whimpering, lying conservatives, huddled together for warmth and nipping at the ankles of their betters.

                I guess getting kicked around in the culture war for a half-century saps a clinger’s energy.

                1. Kirkland takes shouting ‘fire’ in a crowded theater to new levels.

          2. It’s not from “aborted baby parts.” It’s from fetal cell lines, which is not the same thing. At least learn the basic biology.

            1. Because fetal cell lines are made out of pixie dust and unicorn flatulence.

              What’s next — justifying what Dr. Mengle did?

          3. I think that a sincerely held refusal to take medications derived from fetal tissue is entirely protected by the First Amendment.

            What frustrates me, as I said, is we don’t scrutinize sincerity, and lots of people claim religious exemptions insincerely.

            An exemption from a generally applicable rule is serious business. A claimant is asking that he or she doesn’t have to obey a rule the rest of us do. My feeling is we should aggressively litigate sincerity. If a person has been refusing treatments made with fetal tissue all their adult life, absolutely, give the person the exemption. But if the person just conveniently discovered this belief when the coronavirus vaccine came around, stick that needle in his or her arm.

            1. I’m not seeing any First Amendment issue because there isn’t a state actor.

              That being said, not hiring someone because they refused a particular vaccine likely violates Title VII if there are acceptable alternative vaccines. If there aren’t alternative vaccines, then there is likely no violation.

              1. No state actor in refusing to hire Jews, either — oh, wait, there is that little law from 1964 about religious discrimination.

                Why wouldn’t the same law apply to this?

                1. It appears you missed my reference to Title VII.

            2. “we don’t scrutinize sincerity”
              -We do, but typically the religious belief is given the benefit of the doubt.
              “Lots of people claim religious exemptions insincerely.”
              Statistics on this?

            3. “If a person has been refusing treatments made with fetal tissue all their adult life, absolutely, give the person the exemption.”

              And if the person never even imagined, let alone knew, that modern medicine was doing anything as morbid as making medicines from aborted baby parts???

              Pray tell, what other “treatments” have *I* been subjected to that involve aborted baby parts?!? I assure you that I would have objected had I known.

      3. You are conflating outright discrimination with an accommodation. Permitting employers to refuse an accommodation because it burdens their business does not imply they are permitted to outright discriminate by requiring employees to adhere to a faith.

      4. “For example, the Marriot family (which owns the hotel chain by the same name) are Mormons. ”
        Yes they are, and Marriott hotels sell alcoholic beverages.

      5. “What Kirkland fails to understand is that an employer’s ability to totally dismiss religion also establishes the right of another employer to mandate adherence to religion.”

        Absolutely not. This is just the same line of thinking that causes some religious zealots to claim that if the government is “secular”, then it is inherently anti-religion. (Which, of course, is not what really worries them anyway. They worry that if kids can’t be made to read the Bible in public schools, if coaches and teachers can’t lead students in prayer, if the school can’t paint the walls with Bible verses, etc., then students are being discouraged from being Christian. It isn’t hostility to religion in a general way that they fear, but that their religion isn’t being given the privileges that help maintain its cultural dominance.)

        Not accepting a religious claim to be exempt from a rule or law is not at all the same as claiming the authority to impose religious beliefs on people.

  3. I think there is a larger issue here — a fundamental right to employment, something that no one thought about back in 1787 when the majority of the population were either self-employed or could be if they wished. Back then, the overwhelming majority of the population were largely subsistence farmers — almost everyone was to some extent.

    This changed with industrialization and what struck me about the 1905 employment policies of the Maine Central Railroad was that employees were not permitted to have any other kind of employment of any other kind. Likewise, I know of an employer of that era who required his (Italian immigrant) employees to abandon their Catholic faith and convert to his Baptist faith — and to this day there is an “Italian Baptist” church where their grandchildren and great grandchildren worship.

    And then we have the cancel culture where people are losing jobs for things they say, or even events they attend, on their own time. And employers now seek to influence employee off-duty lifestyles so as to reduce employee health insurance costs.

    If tolerated — and I’m wondering what the union movement will do here — an employer vaccine mandate is a damn dangerous precedent. I think that the next thing you will see is a ban on home use of both tobacco and marajuana and there are simple tests that detect recent (off-duty) use of either.

    And think of where else the fascist employer could go — the problem is that your very body becomes the property of your employer, notwithstanding the basic principles of Locke.

    The left will respond to this with a renewal of the 1960’s concept of a right to a minimum annual income and the government’s duty to provide it — which is a very scary thing that we are already seeing parts of. I’m not sure what the conservative alternative is, but we’d better think one, and damn fast, or we will have people refusing to be vaccinated for the sole purpose of enjoying the governmental largess.

    And wouldn’t an employee fired for being refused to be vaccinated already be eligible for unemployment and all of the related bonuses?

    1. Let’s take it into more contentious territory:
      * May an employer demand all employees be vegetarians?
      * May an employer demand all employees be celibate?
      * May an employer fire an employee for having an abortion (or refusing to have one).

      Where are all the pro-choice “my body – my choice” protestors in the days of COVID mandates?

      This will backfire, just like the woke cancellations are already doing … it’s just not clear who will be around to pick up the pieces.

      1. “May an employer demand all employees be celibate?”

        Yes, the Catholic Church requires priests to be celibrate.

        1. The Catholic Church has a lot of employees other than priests, who in a legal way, are self employed.

          1. But for those specific jobs, it does require celibacy. And having a penis.

            1. It’s a religious belief. One that’s quite long standing.

              1. “It’s a religious belief. One that’s quite long standing.”

                And that, of course, is all the justification it needs to continue to be followed, right? Tradition! Fiddler on the Roof memes work well for this also.

                1. If your argument is someone just suddenly “has” a religious belief, and that’s why it shouldn’t count, having a long-standing tradition is an effective counter

                  1. “If your argument is someone just suddenly “has” a religious belief, and that’s why it shouldn’t count, having a long-standing tradition is an effective counter”

                    Since that wasn’t my argument, then no, tradition isn’t an effective counter to anything I’ve said.

        2. If we’re picking on Catholics, a better example is how various Catholic schools, which pointedly do not require many of their teachers and faculty to be Catholic, will still require these non-Catholic teachers to be celibate if unwed, and to not be gay regardless of celibacy, and will fire teachers for violating either.

          And conservatives/libertarians cheer them on for this.

          Which is to say, Catholic universities require many more people to be celibate then just priests.

          1. “if unwed”

            That’s quite the statement you’re leaving out.

            1. ““if unwed”

              That’s quite the statement you’re leaving out.”

              And that should matter, why?

              Armchair Lawyer is just pulling out religion’s favorite get-out-of-logic-and-evidence free card left and right in this thread.

              1. “And that should matter, why?”

                You’re aware of the stark differential outcomes for children raised by wed parents, as opposed to unwed or single parents, right?

                1. “You’re aware of the stark differential outcomes for children raised by wed parents, as opposed to unwed or single parents, right?”

                  You’re aware that birth control exists, right?

            2. If by “leaving out” you meant “literally in my text”, then sure.

              The question was “can you be fired for not being celibate”. The answer is “yes” and I gave a real-world example, which did not occur in a church. If this upsets you, take it up with the lawyers that have expanded ministerial exceptions to include janitors.

    2. I think that the next thing you will see is a ban on home use of both tobacco and marajuana and there are simple tests that detect recent (off-duty) use of either.
      I live in California, where marijuana is legal for recreational use. I can still get fired for using it.

      For that matter, there’s nothing illegal with me having a beer during my lunch break. But if my employer doesn’t like it? They can fire me for it, without having to prove that the single beer was impairing my work.

      And employers have always been able to fire folks for what they do on their own time. Pretending this is new is to be ignorant of history.

      The bottom line is that in America there is not a “fundamental right to employment”, and especially not a right to employment from someone who does not wish to employ you.

      We have a very narrow list of criteria that are prohibited as the basis for employment decisions. If the motivation for firing you is not on that list? Then it’s A-OK, unless that specific employee has a contract that provides more limits then the law does (for example, union contracts).

      So as I said below, it’s very odd to see all the stalwart defenders of at-will employment suddenly discovering that maybe employees shouldn’t have to stress so much about meeting their employer’s approval.

      1. ” I can still get fired for using it.”
        And you can loose your federal clearance. even worse if you lie you can be prosecuted for perjury.

      2. “So as I said below, it’s very odd to see all the stalwart defenders of at-will employment suddenly discovering that maybe employees shouldn’t have to stress so much about meeting their employer’s approval.”

        Is it? A big part of it is the cultural change going on.

        For a long time, what you did at work was what mattered. And what you did at home was your own business, so long as it didn’t interfere with work.

        But when employers try to control your actions outside of work, well…that changes people’s opinions.

        1. “For a long time, what you did at work was what mattered. And what you did at home was your own business, so long as it didn’t interfere with work.”

          I’m really not buying this idea that employers in the past didn’t care what you did outside of work. Social conservatives have always concerned themselves with what the people around them do in private. I also don’t buy that you really think that employers should leave people’s private lives as private, especially after the way you defended Catholic school policies that non-Catholic teachers be celibate if not married.

        2. For a long time, what you did at work was what mattered. And what you did at home was your own business, so long as it didn’t interfere with work.

          Ha.

          Give me a year for this “long time”, ’cause I sure as hell know it’s not between 1789 and 2021.

    3. “And employers now seek to influence employee off-duty lifestyles so as to reduce employee health insurance costs.”
      Yes, that is a feature of at-will employment

  4. To what extent will the “de minimis cost” question be dependent on how many people actually opt out? Herd immunity does not require 100% coverage.

    1. Relatedly, do employers need to accept evidence someone had covid (presumably, just as protected as vaccinated people). Now, the only cost would be having to accept one form vs. two forms.

  5. What evangelical Christian groups oppose this other than Christian Scientists and Jehovah Witnesses (?) (and I’m not sure I would classify them as evangelical).

    1. The congregation of You Elitist Is Not Boss Of Me (ostensibleadult division), for starters.

    2. This is anecdotal to be sure & probably representative of few, but I read an interview with an evangelical woman who refused to be vaccinated because the vaccine was made with tissue from abortions.

      Of course that’s factually untrue, but it goes to show there’s always a “reason” handy if somebody wants it. And that reason can be “religious” if someone is looking for that as well.

      1. ” vaccine was made with tissue from abortions”
        You distort the claim. The “made with” does not mean containing.

        The “made with” means that the research leading to the vaccine and its produced was conducted using cells lines derived from tissues from abortions.
        That statement is true for some of the vaccines.

        1. And that still leaves the religious that have this objection without having to make a rational argument about why that should matter. Or to be consistent and refuse to benefit from technological or scientific developments that have an even more concerning ethical history.

          1. If you needed a new kidney, and the doctors offered you one. But you knew it had been taken from an political prisoner who had been executed for his organs…

            Would you still take it? Why or why not?

            1. “If you needed a new kidney, and the doctors offered you one. But you knew it had been taken from an political prisoner who had been executed for his organs…”

              That’s definitely an ethical dilemma. Should you refuse to benefit from an unethical or immoral action that is already complete, when your refusal would do nothing to undo the original harm, compensate or provide a sense of justice the victims, etc? If refusal would discourage such harm from occurring again, then I would say that you should definitely refuse. If these aren’t at issue, it is then mostly a matter of personal feelings of guilt being associated with an immoral act that you aren’t responsible for, and I wouldn’t want to say with certainty what I would or wouldn’t do in a hypothetical that can’t be specific enough to present all of the factors that would affect my decision. (What are the odds I could get a needed kidney from a willing donor if I refuse this one? What happens to the kidney if I refuse, does it just get disposed of, effectively wasted? What if it wasn’t me that needed the kidney, but my child?)

              This is also a much more clearly unethical and immoral situation, as the kidney was taken from a person that was murdered for their organs. Belief that abortion is immoral is hardly universal in the way that this political prisoner’s murder would be universally condemned. I’ve spent plenty of time here and elsewhere debating the “abortion is murder” proposition. Even granting that a person sincerely believes that abortion is murder, the analogy is still flawed. It is a connection that is much more tenuous between tissue remaining from an aborted embryo or fetus being used to create stem cell lines that eventually get used in researching a vaccine as compared to taking an organ directly from someone murdered for the purpose of harvesting their organs.

          2. Under Thomas v. Review Board, a rational argument is not required on where to draw the line

            Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is “struggling” with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.

            1. “Under Thomas v. Review Board, a rational argument is not required on where to draw the line…”

              Yeah, and that is fine, as a matter of legal and constitutional analysis when deciding whether to uphold religious rights that don’t affect other people. But I am much less willing to defer to people’s religious beliefs and not examine their rationality when those religious beliefs are conflicting with the health and safety of other people. And I am completely unwilling to withhold criticism of someone’s religious beliefs as being irrational. If someone holds kooky beliefs that are not religious, and it is appropriate in the situation for me to comment on those beliefs rather than hold my tongue in a “if you don’t have anything nice to say, don’t say anything” kind of way, then I certainly would not hold back from calling those beliefs kooky and attacking the lack of rationality in them. If someone holds kooky beliefs that are religious, then the fact that it is their religion that leads them to believe those things is no shield at all from criticism, as far as I am concerned.

              1. Of course you can criticize an irrational belief, but a rationale for where to draw the line plays no part in any legal analysis.

              2. Okay, but why bother?

                Someone claims a sincere religious belief? Generally speaking, you move on from that to “is this a belief we can accommodate?”

                In many cases, the answer is “yes”. The DMV can take your photo with your religious headwear on. Prisons can provide Kosher meals. Most employers can structure planned breaks around Muslim employees praying. A gay-hating Christian can stand-back and let another government employee handle the paperwork for a gay couple getting married.

                In the vast majority of cases, you can make reasonable accomodations… so long as the objector wants to be reasonable. Someone that claimed they have religious objections to being photographed in any context could not demand that all red-light cameras be taken down becuase they might photograph them. Someone that objects to gay people marrying can’t demand that their entire county not allow gay people to marry. Someone that claims to have religious beliefs to only eat 5-star meals is SOL in prison.

                And you can come to those decisions without questioning the sincerity of the belief, just whether or not the necessary accommodation is “reasonable”.

                And if it comes to that, that is what “vaccine passports” will hinge on. Is there a way for the university to reasonably accommodate a student or teacher who has objections to being vaccinated? A large part of the answer to that will probably hinge on how many people are claiming objections, and what the current best estimates for herd immunity require: If 30% of the US is claiming objections, but we need 95% immune for herd immunity, then exceptions will stop being “reasonable” and will instead be detrimental to the objective.

                And again, you can do all this analysis without bothering with “is this a sincere belief?”

  6. Why must a sincerely held belief be religious?
    What constitutes a religious test?

    I seem to recall that a person could be a conscientious objector to war and be exempt from the draft and did not need not be part of a organized or recognized religious sect.

    1. “I seem to recall that a person could be a conscientious objector to war and be exempt from the draft and did not need not be part of a organized or recognized religious sect.”

      Memory is that it only was an ethical belief — not even a religious one. I believe that went to SCOTUS *twice* — anyone have the cite?

      1. Seeger v. U.S., 380 U.S. 163 (1965)

      2. What differentiates a sincerely held religious belief from a sincerely held ethical belief?

        1. If it is a religious belief, then courts usually won’t probe your thinking in any skeptical way. If it is an ethical belief not based on supernatural myths and ancient texts, then they might challenge you to explain your logic.

  7. I’m not anti-vax at all. However, as of now, the vaccines are not approved by the FDA, they are still in Phase III clinical trials, and have been authorized for emergency use. Technically, they are experimental until the trials are complete, which I believe will be some time in 2022.

    How in the world can a company insist employees take a vaccine that is technically experimental? Furthermore, if one had COVID-19, do they get a pass for the vaccine? Having the disease would, in any normal scientific context be considered to be better or the same protection as the vaccine. However, if one believe that PCR tests were set at a high cycle threshold, resulting in an abundance of false-positive tests, can we trust non-symptomatic positives?

    So much of the COVID “science” strays from what has been normally accepted in the past that it is difficult to have reasonable policies. Furthermore the knee-jerk mask policies and general hysteria over severity has been overblown, resulting in many Americans misunderstanding the risk vs. benefits of COVID measures. Mandatory vitamin D tablets and exercise would be medically more warranted.

    1. This may explain why so many comments at the Volokh Conspiracy reflect ignorance concerning legal matters — this blog somehow attracts mostly doctors and scientists, not lawyers!

        1. No.

    2. You asked right off the bat the very same question I have asked = How in the world can a company insist employees take a vaccine that is technically experimental?

      To me, the FDA makes some of the problem go away with a formal approval. But the question still lingers. How can any employer require any vaccination as a condition of employment? They (vaccines) all have a failure rate.

      What’s the actual standard?

  8. The threshold being crossed here is privacy of medical records — and medicine itself.

    No portion of the Roe decision affects private employers. Other than the fact that they have no right to know about it, exactly what prevents private employers from firing any employee who has an abortion?

    Am I the only one who would prefer to have an unvacinated coworker than to go down this road?

    1. Sorry but I would come down on the employer side for these questions. If you don’t like your employer’s policies find a different employer, start your own business or starve.

  9. Two things come to mind.

    First, schools (both K-12 and higher level) have been able to require (with exceptions) vaccinations for a long, long time now. The only difference is that this time the vaccinations have been politicized by a major political party, and that the schools might actually enforce what they’ve had on paper.

    Second, I find it hilarious that so many conservatives and libertarians are suddenly discovering the idea of employee rights. Y’all have been nodding your heads saying “that sounds right” to every story of a gay person fired for decades, but suddenly it’s your superstitious ass that might (not even is, just “might”) be on the chopping block, suddenly you have problems with at-will employment?

    1. They’re also warming up to the “right to privacy.” But don’t worry, that will not in any way adversely affect their argument that Roe should be overturned since it’s based in part on a fictional “right to privacy.” Likewise, since they’re only really arguing for *conservative* employee (and employer) rights, the apparent turn towards employee rights will have no effect on their belief that employees have no rights.

      1. Who cares what conservatives are warming to, or what they want? Their numbers, and influence, are diminishing in modern America. They have lost the battle of ideas in America. Soon, not even gerrymandering, voter suppression, and our system’s structural amplification of backwater votes will be enough to remain relevant in our political system (outside of Mississippi, Kentucky, Wyoming, and a few other can’t-keep-up jurisdictions, over which the Republicans will continue to lord until the power company enforces the last shut-off notice).

        Except Kerr. I am interested in what he might wish to say, even if he wishes to continue to claim he is a Republican.

    2. Maybe you don’t recall the halcyon days of the Clinton Admin, when the RFRA was passed with overwhelming bi-partisan votes. What are you, like 21 or something?

      1. To the degree that the RFRA (and similar state-level laws) is relevant, I already acknowledged that: “(with exceptions)”.

        Which is to say, states have already grappled with whether schools and what-not can require vaccines, and the answer has been “yes”. Just how generous exceptions are varies state-by-state (some allow anyone who says they have an objection, some allow only medically necessary exceptions). But my point was that this is not a new debate, and is only re-entering the limelight because Republicans politicized a pandemic.

        1. OTOH, conditioning one benefit on vaccination seems different in kind than de facto denying someone food.

          Or are you also proposing some form of permanent welfare benefit for conscientious objectors?

          1. I’d have to propose something in the first place in order to be “also proposing” anything.

            Which is to say… you’ve made some weird assumptions here.

      2. “Maybe you don’t recall the halcyon days of the Clinton Admin, when the RFRA was passed with overwhelming bi-partisan votes. What are you, like 21 or something?”

        The late Justice Scalia’s opinion in Smith brought together the left and right in being upset about religious freedom for entirely different reasons. The left didn’t like that it was Native Americans that were denied their religious freedom (that is, they viewed the petitioners as being discriminated against because they held religious beliefs unpopular with the Christian majority of the country). The Christian right worried about the same precedent being applied to them, even though they were in the majority.

        The RFRA was bad law, as a solution to both sides, in my opinion. Not only did they overreach and try and make it apply to state law, but by making it a blanket that covered all laws, then it left it to courts to find the exemptions and balancing tests. A much better plan would have been for Congress to do its job and include reasonable accommodations within each law. But of course, that is hard work to go into that level of detail, and Congresspeople avoid work. It takes away from their real job, fundraising for their re-election campaigns.

  10. The question is how sincerely is the religious belief held? If a person gets vaccinated for a number of diseases by not for Covid19 I don’t think they have a case. Another question is how deeply is the belief really held. Most Catholics use artificial birth control. The Catholic Church hierarchy know this but avoids the topic to prevent the loss of large segments of their congregations. Birth control is don’t ask, don’t tell for Catholics.

    1. The question is how sincerely is the religious belief held?

      Not really. In most cases, it’s best to take the claim of belief at face value and proceed with analysis assuming it’s sincere, no matter how spontaneously-generated or arbitrary, or hypocritical.

      Simply put, the government is ill-equipped and ill-advised to adjudicate which religious beliefs are “sincere”.

      1. “Simply put, the government is ill-equipped and ill-advised to adjudicate which religious beliefs are “sincere”.”

        Basically, because you don’t want the government to choose which religious beliefs to be skeptical about and which to just wave on through, they should give a pass to them all. This might be fine as a matter of law and government action, but then we absolutely should still put social pressure on the religious to justify their refusal to share in making the whole population safer. If there is one thing that religious people tend to do that bothers me, it is to simply say that their religion tells them to believe something as if that is justification enough on its own, and by the way, not accepting this as my answer is anti-Christian bigotry! Freedom of Religion is not a freedom from being criticized for believing that religion.

      2. But the government does decide which beliefs are “sincere” all the time. Look at the way laws restrict women right to birth control and abortion. There is is nothing that say that a women’s religious beliefs are considered in these laws. Rather it is the religious beliefs of the men passing the laws that are considered. Similarly with laws regarding same sex marriage. There were churches and religious people who supported same sex marriage before it was legal. These churches and people religious beliefs were set aside in favor of those opposing same sex marriage.

        The fact is that the definition of “sincere” is very subjective and a review of our laws would show this to be true.

        1. You’re confusing motivations in drafting of laws (which can be religious) with motivations in enforcing laws (which must be done without consideration of religion to the greatest degree possible).

          If you’re just arguing that this is hypocritical, then you’re obviously correct. But it remains the status quo.

    2. “The question is how sincerely is the religious belief held? If a person gets vaccinated for a number of diseases by not for Covid19 I don’t think they have a case.”

      Depends on the vaccine type. There are differences between them and how they are created and produced.

      1. Your point about how the vaccines are created is correct. It should also be noted that in some cases there is a diversity of opinions on the acceptability even within a religious group. While some local Catholic dioceses have opposed use of certain Covid19 vaccines, the Catholic Churches leadership has accepted these vaccines as necessary. Is your belief “sincere” if you accept your Bishop’s view over your Pope’s? Or our you just shopping for the authority that supports your belief?

  11. Remember when Obama objected to states having the ability to check the immigration status of people with the mockery of the “papers please” routine, indicating it was akin to German fascism.

    Yea, that’s explicitly what the covid passport regime proposal is, a way to say “papers please.”

    1. I think vaccine passports are dumb.

      But you’re also very wrong.

      Stopping people at random is not the same as a requirement to use a service, as is being proposed for the vaccine passports.
      Voter ID laws are dumb for many reasons but not many call them a ‘papers please’

  12. This isn’t hard unless you work to make it so.

    If they can legally force you to be vaccinated, they can legally force you to undergo any medical procedure. That’s not an exaggeration. There’s a bright line here: who has the final right of refusal over what you do to your own body?

    Compelled medical treatment, like compelled speech, is the very antithesis of personal liberty.

    1. Vaccines are distinguished from just “any medical procedure” because they protect other people (those who can’t get vaccinated for medical reasons and the population as a whole thanks to herd immunity and eradication).

    2. Forcing?

      This is as ridiculous as the anti-mask folk. “You have no right to force me to wear a mask!” they shout, from private property, on which they are trespassing.

      Which is to say… Wal-Mart is not able, or inclined, to “force” you to get a vaccine. But they are within their rights to refuse you entry if you do not have one, just as they are within their rights to refuse you entry if you do not have a shirt on.

      Do not confuse being refused service for not having a vaccine with being “forced” to get one.

  13. In a development that is off the main topic, but still a religious freedom issue, Alabama agreed to change its voter registration forms. The updated form still includes “so help me God” in the oath swearing that information on the form is accurate, but it also has a box that allows registrants to opt out of the religious portion of the oath “because of a sincerely held belief.” Applicants still must “swear or affirm” to requirements including being a U.S. citizen; being eligible to vote; and not being affiliated with groups that advocate the overthrow of the government.

    Alabama had been the only state to include those four words in the oaths on their voter registration forms. The Founders didn’t think much of atheists, but given that Quakers won’t take oath’s before God, the Constitution and most states have long allowed people to give an oath or affirmation. Welcome to pluralism, Alabama.

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