Religion and the Law

Victory for WMU Student Athletes with Religious Objections to Vaccination

Western Michigan University mandated vaccinations for participation in team sports (but not for students generally); it said religious exemption requests would be available on a case-by-case basis; but then apparently categorically denied them.


From Gal in Kalamazoo Dahl v. Board of Trustees of Western Mich. Univ., decided today by the Sixth Circuit (Judges Guy, McKeague, and Readler), in a per curiam opinion:

Western Michigan University, a public university, requires student-athletes to be vaccinated against COVID-19, but it considers individual requests for medical and religious exemptions on a discretionary basis. Sixteen student-athletes applied for religious exemptions. The University ignored or denied their requests and barred them from participating in any team activities.

The student-athletes then sued, alleging, among other things, that University officials violated their free exercise rights. The district court preliminarily enjoined the officials from enforcing the vaccine mandate against plaintiffs. Now, the officials ask us to stay the injunction and proceedings in the district court pending appeal.

Although it is a close call, because the free exercise challenge will likely succeed on appeal, the factors considered in granting a stay favor the student-athletes. Accordingly, we decline to issue a stay….

The First Amendment, as incorporated through the Fourteenth Amendment, prevents a state from "prohibiting the free exercise" of religion…. "[I]ndirect coercion or penalties on the free exercise of religion, not just outright prohibitions," also trigger scrutiny under the Free Exercise Clause.

Accordingly, a policy that forces a person to choose between observing her religious beliefs and receiving a generally available government benefit for which she is otherwise qualified burdens her free exercise rights. The reason is simple: denying a person "an equal share of the rights, benefits, and privileges enjoyed by other citizens" because of her faith discourages religious activity…. A party may mount a free exercise challenge … even where it does not have a constitutional right to the benefit it alleges is being improperly denied or impaired. That has long been true; the Supreme Court recognized over 50 years ago that "[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege" as opposed to a right….

Application of these benchmarks leads us to conclude that the University's failure to grant religious exemptions to plaintiffs burdened their free exercise rights. The University put plaintiffs to the choice: get vaccinated or stop fully participating in intercollegiate sports. The University did not dispute that taking the vaccine would violate plaintiffs' "sincerely held Christian beliefs." Yet refusing the vaccine prevents plaintiffs from participating in college sports, as they are otherwise qualified (and likely were recruited) to do. By conditioning the privilege of playing sports on plaintiffs' willingness to abandon their sincere religious beliefs, the University burdened their free exercise rights….

Of course, not every burden on the free exercise of religion is unconstitutional. A neutral law of general applicability "need not be justified by a compelling governmental interest" even if the law incidentally burdens religious practices. But a law that is not neutral and generally applicable "must undergo the most rigorous of scrutiny."

As the Supreme Court recently reaffirmed, a policy that provides a "mechanism for individualized exemptions" is not generally applicable. Accordingly, where a state extends discretionary exemptions to a policy, it must grant exemptions for cases of "religious hardship" or present compelling reasons not to do so. For example, a city that requires foster agencies to certify same-sex couples as foster parents "unless an exception is granted by the Commissioner … in his/her sole discretion" must provide a compelling reason not to extend a religious exemption to a Catholic foster agency. Fulton v. City of Philadelphia (2020). Similarly, a state that denies unemployment benefits to persons who refuse a suitable job "without good cause" must identify a "compelling state interest" not to grant an exemption to a Seventh-day Adventist who would not work on the Sabbath. Sherbert v. Verner (1963)….

[L]ike the city in Fulton and the state in Sherbert, the University retains discretion to extend exemptions in whole or in part. For this reason, the policy is not generally applicable. As a result, the University must prove that its decision not to grant religious exemptions to plaintiffs survives strict scrutiny.

Defendants … assert that the University's policy is neutral and generally applicable under Fulton and Sherbert because the University refused to allow any unvaccinated player to participate in college sports. But defendants' emphasis on how they in fact executed the policy ignores the Supreme Court's instruction that we put front and center the terms of the policy itself, as the "creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given." That is so, the Supreme Court explained, because the existence of a system to grant individualized exceptions "'invite[s]' the government to decide which reasons for not complying with the policy are worthy of solicitude," which, we note, fairly describes the policy at issue here. The University's policy says it evaluates whether to grant religious exemptions "on an individual basis," thereby rendering the policy not generally applicable regardless of whether the University has granted any exemptions….

True, the University did maintain plaintiffs' athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University's policy of conditioning "full involvement in the athletic department" on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized…. They sought exemptions to continue [their] athletic endeavors, not simply to be "listed as a player on the team website," as the University offered….

Because the University's policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as "strict scrutiny." That manner of scrutiny requires defendants, to prevail, to show that the University's failure to exempt plaintiffs serves "'interests of the highest order' and is narrowly tailored to achieve those interests."

The University's interest in fighting COVID-19 is compelling. But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that "create[s] a more serious health risk." That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities. For another, narrow tailoring is unlikely if the University's conduct is "more severe" than that of other institutions. To that point, several other universities grant exemptions from their COVID-19 mandates….

[We do not dispute] that COVID-19 vaccines are "the most effective and reasonable way to guard against" the virus…. But the question before us "is not whether the [University] has a compelling interest in enforcing its [vaccine] policies generally, but whether it has such an interest in denying an exception" to plaintiffs, and whether its conduct is narrowly tailored to achieve that interest. Defendants present neither evidence nor argument on that score…. To sum up, defendants likely violated plaintiffs' First Amendment rights.

We do not doubt defendants' good faith, nor do we fail to appreciate the burdens COVID-19 has placed on this nation's universities. To that point, our holding is narrow. Other attempts by the University to combat COVID-19, even those targeted at intercollegiate athletics, may pass constitutional muster. But having announced a system under which student-athletes can seek individualized exemptions, the University must explain why it chose not to grant any to plaintiffs. And it did not fairly do so here.

NEXT: Could the Supreme Court Revive the Trump Administration's ACE Rule?

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  1. Those athletes are at an age where catching the real covid develops much stronger longer immunity with much lower risk of long term damage. Being athletes and being young, the risk is exceedingly low with the benefit of strong long term immunity very high.

    The policy choice is the strong long term solution or the temporary marginally effective short term solution currently being demanded.

    1. It is impossible to argue science when dealing with religious fanatics; in this case it’s the Branch Covidians.

      1. Remember: Now, as at Waco, Ruby Ridge, and in many other cases, the government has overreacted out of spite for those with the effrontery to not meekly comply, resulting in mass fatalities.

        1. Michael,
          Wait, what? With Ruby Ridge, Waco et al, there was govt action (you believe overraction), and this undoubtedly resulted in deaths. You imply unjustified deaths, others might think perfectly justified deaths…but no arguing the “many deaths” fact.

          But in your example, the govt overreaction has resulted in SAVING massive amounts of lives. At a societal cost, I think you would argue. An overreach, you would undoubtedly argue. But I cannot even conceive of the amount of stupidity that would be required to make the assertion, “The govt-supported creation of vaccines and the govt (fed and states and local) push to get people vaccinated has resulted in MORE deaths than would have occurred without these govt actions.” So, I feel like I’m misreading what you wrote. Can you explain, so that I can better understand your earlier post?

          1. “But in your example, the govt overreaction has resulted in SAVING massive amounts of lives.”

            Some of the government actions have saved lives. Accelerated vaccine development; Mostly a matter of the government getting out of the way, but there were subsidies, too.

            Some have cost lives. Forcing nursing homes to take in Covid carriers, for instance, or mindless lockdowns that crashed the economy to no medical purpose; Poverty kills.

            Some have been neutral on the lives front while having other costs, such as mask vacillation.

            Others are just inexplicably mixed, like restrictive rules for people who enter the country legally, and refusing to test people who enter illegally, instead releasing them into the interior.

            1. Not only those examples, but also actions (or other effects of the actions you mentioned) like:

              Being so concerned about test accuracy that they prohibited the use of any tests except the ones the government contaminated.

              Telling people it was perfectly safe to go out and be in crowded public spaces.

              Being so concerned about people misusing masks that they told them that masks were useless (* a few said they had to be saved for healthcare workers).

              Telling people it was incredibly dangerous to protest against lockdowns, but incredibly justified to protest against enforcement of other laws.

              Locking down people so much that the isolation contributed to domestic violence, mental health problems, developmental problems in children, and forgone preventive and early-screening health care.

              1. Yes, there are obviously costs to even good plans. And costs to plans that were well-intentioned but unwise-in-retrospect. But we’re talking about 5,000,000 or more dead just in America if we had done nothing. So, the number of deaths (avoidable ones in nursing homes is a great example) from govt action is some small fraction of what would have/could have happened.

                I think this whole Covid pandemic is a shining example of what govt can accomplish. Trump and his administration did many many things wrong…some intentionally. But by helping to get private companies to develop vaccines (even if it helped mainly by getting out of the way…that’s no small accomplishment for any big govt!), the lives saved during Trump dwarfs the number of lives lost. And the same for the Biden administration.

                Let’s assign blame, where due. But let’s also give credit, when deserved.

                1. That’s a bullshit number. Early forecasts that had numbers like that were way off in spread and CFR.

                  1. The early forecasts were tacitly based on the assumption that Covid was an escaped biowarfare agent. They didn’t say that, of course, (No need to cause a panic!) but it looks like that’s what they were thinking.

                    After it was clear that Covid wasn’t nearly as nasty as suspected, the moral panic had set in, and it was psychologically impossible for them to moderate their response, even if they hadn’t found it a useful excuse to implement desired police state measures.

                2. But we’re talking about 5,000,000 or more dead just in America if we had done nothing.

                  No, WE are not. This crazy number from the early modeling has been comprehensively debunked by experience, and only COVIDians don’t recognize this.

                  Btw, you really need to proofread your stuff, and correct it if necessary. In…

                  But in your example, the govt overreaction has resulted in SAVING massive amounts of lives.

                  …the phrase before the comma shouldn’t be there.

                  OT: Speaking of rogue commas, the second one from this sentence in the decision is also an escapee:

                  Although it is a close call, because the free exercise challenge will likely succeed on appeal, the factors considered in granting a stay favor the student-athletes.

                3. Yes, the Covid pandemic is a shining example of how government can crater economies, stir up discontent, incentivize violent action, and arbitrarily discriminate against citizens without meaningful recourse.

                  How is that avalanche of evictions coming, anyway? We should have seen some indications of it in the month-plus since the Supreme Court lifted the stay against the CDC’s moratorium, right?

              2. “Telling people it was incredibly dangerous to protest against lockdowns, but incredibly justified to protest against enforcement of other laws.”

                I suggested this one during the secret jewish cabal meeting of bankers and newsmen. Give credit where it’s due!

    2. Those athletes are at an age where catching the real covid develops much stronger longer immunity with much lower risk of long term damage. Being athletes and being young, the risk is exceedingly low with the benefit of strong long term immunity very high.

      I see the Noble Prize Winner in Medicine is speaking again.

      1. Woah, look at all of that fancy evidence refuting his claim which is definitely not backed by any science. It’s ok, David’s got “Science” on his side! Branch Covidians to the rescue.

    3. So dumb.

      Actually getting Covid is more dangerous than getting vaccinated, both short and long term. In the open thread, M L posted one study that might contradict this for male teens, but that’s the only study I’ve seen that shows any differential against vaccinated and wouldn’t apply to college-age students.

      There’s a reasonable discussion to be had about whether vaccination should be required for people who have already had Covid, but not really any debate over whether it’s a good idea to intentionally let people get infected “because natural immunity is better”.

      1. But not more dangerous to college athletes. The military, with almost as good demographics (just slightly older and slightly less fit) has lost fewer than 20 service members out of roughly a million and a half. That is, in rough figures, about one in a hundred thousand. They have seen much higher numbers of significant side effects of the vaccines.

        Keep that in mind. COVID-19 lethality has an almost exponential correlation with age, and a significant correlation with known comorbidities- most notably here, obesity. Drunken parties are probably more likely to kill college athletes than COVID-19. But the heart issues that appear to be a not infrequent side effect of the vaccines seem to affect athletes worse than most demographics, very possibly because they push their hearts more.

        My point here is that you cannot rationally look at the risk of the virus to the entire population, as well as the side effects, then apply that cost/benefit reasoning to a demographic that is mostly effectively immune to the virus, but maybe overly sensitive to the vaccines. (As a note – I am 70 and vaccinated (early) because I am at the opposite end of these risk profiles).

        1. I actually understand and agree that the risk from Covid is much lower for college-aged athletes. But that still doesn’t mean that the vaccine is higher-risk, and in fact it turns out to be lower risk if you actually do the math.

          Your military example actually proves my point: yes, not that many have died from Covid, but zero people in the military have died from the vaccine (and no one in the military has died of Covid after getting vaccinated). This is despite the fact that more troops have been vaccinated than have gotten Covid.

          1. Exactly.

            And it’s irrelevant anyway, because the point of getting vaccinated is not to protect the individual, it’s to slow the spread of the virus. Let’s not allow a deadly virus to circulate around among teens and 20-somethings who can then pass it on to others. That creates a reservoir of infection.

            (Also, as Bruce so helpfully pointed out, 20 service members have already been killed by covid unnecessarily!)

            So… please stop inventing retarded reasons to avoid the vaccine and just vaccinate, yeah?

        2. Although your broader point about the need to compare like with like is sound, you begin your argument by violating that very rule. You compare the total number of military deaths attributable to covid not with deaths from the vaccine but to “serious side effects” from the vaccine.

  2. So if the U said that all student athletes must be vaccinated, with no religious exceptions, that would be OK?

    1. As I read it, no, given that they’re not requiring the general student body to be vaccinated: “But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.” That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated.”

      1. Brett, couldn’t a plausible argument be made that student athletics creates an increased risk of Covid transmission — athletes spend more time in close contact with each other than students sitting (socially distanced) in a class room; because of the vigorous activities of athletes, they are more likely to spread the virus (just as hymn singing in churches was thought to create an increased risk of spreading the virus and was prohibited) — so the U could distinguish between different student activities in establishing anti-Covid procedures? And if so, wouldn’t the lesson of this case be that the U is better off not allowing ANY religious exceptions for student athletes?

        1. You could argue that, but given the apparent double-bunking of students in student housing I’m dubious that the claim would survive a factual analysis.

          And, again, I also doubt that a process to consider religious exemptions is so easily evaded.

          For the general student body here is the accommodation:

          Mandatory COVID-19 testing
          All students, faculty and staff who have not had their vaccination verified with Sindecuse Health Center will be tested on campus at the Fetzer Center regularly.

          Mandatory no-cost testing will begin at the start of the fall semester and continue every week. Individuals will continue to be subject to regular testing until fully vaccinated and verified.

        2. On the flip side. It is an awfully low risk demographic already, and most of those in the ages of those playing college sports who have died, had well known comorbitities – notably obesity. And obese is something that is very rare in college athletes.

          Also note that there is little, if any, evidence of spread of the virus while playing sports, and esp outdoor sports. Part of that is the ubiquitous UV, that works as a very effective viricide and disinfectant. Another is that outdoors, it is far harder to build up enough of a viral load, with all of the surrounding air.

      2. Then you read it wrong, Brett. The decision only got to strict scrutiny because the policy allowed for exceptions, making it not generally applicable per Fulton.

        Maybe they would have found another way to get there, but the decision as written doesn’t offer one.

    2. They would still have to credibly articulate why all student athletes must be vaccinated when non-athlete student are not so required. They’d be in stronger grounds to say that all students must be vaccinated – but that just moves the challenge because the state government (of which the university is legally a part) is not similarly requiring non-university students to be vaccinated.

      1. They would still have to credibly articulate why all student athletes must be vaccinated when non-athlete student are not so required.

        I don’t see why they should have to make any such argument. A requirement without any discretion that all athletes be vaccinated if they want to play would not deny these people inventing their fake religious objections — again, the government has to accept their claims about their religious beliefs, but the rest of us are free to call them liars — equal treatment on account of said alleged religious beliefs. They would be denied the ability to play college sports, as would secular people who refused to get vaccinated.

        1. David the Mind Reader is on the job!

          How about accepting that they are in a category of very tiny risk, and there’s no science, no matter how hard you believe in the “Science”. Don’t worry, I won’t call you a liar. I’m sure you believe it with all of your heart. But, like them, it doesn’t make your god real.

          1. Mind Readers vs. Fake Superstition Excuses.

            I guess that’s all one can reasonably expect at a White, male, obsolete, conservative blog these days.

          2. Kirkland is here to presumably say something stupid, probably using the term “clinger” or some other such nonsense.

            I won’t bother to unmute you to check and respond directly to you though.

            1. Your fate is set, VinniUSMC — whether you permit your right-wing infostream to be leavened by the occasional bit of non-clinger content would change neither the timing nor the inevitability of your replacement.

        2. That’s a decent argument, but I think it conflicts with Tandon v. Newsom. California equally limited secular and religious gatherings in homes to three households. But, the Court nonetheless held the regulation was not generally applicable because California permitted more than three households to gather in retail stores, and gatherings in retail stores were comparable to gatherings in households. You, I and Justice Kagan may think that’s crazy, but the Court concluded California had to justify why at-home gatherings were not comparable to retail store gatherings. Thus, it is likely the university has to justify why athletics are different than the rest of student conduct.

          1. I don’t think that’s apposite. Tandon directly restricted religious observance. This does not. This restricts participation on an athletic team.

            1. I mean, obviously Tandon himself didn’t restrict religious observance; rather, that was the issue in the case brought by Tandon.

            2. The regulation in Tandon proscribed conduct that religion prescribed. The regulation in this case prescribes conduct that religion proscribes. The Smith court didn’t distinguish between the two scenarios in its conclusion on how to treat a generally applicable law:

              the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

              And while it is possible, I wouldn’t expect the Court to distinguish between the two scenarios in how to determine whether a law is generally applicable either.

              1. The regulation in this case does not prescribe conduct. It proscribes playing college sports, unless someone is vaccinated.

                1. OK. The regulation conditions playing college sports on conduct that religion proscribes. I doubt this distinction changes the constitutional analysis.

    3. Even Justice Kagan conceded in South Bay v. Newsom that “A government cannot put limits on religious conduct if it fails to prohibit nonreligious conduct that endangers the government’s interests in a similar or greater degree.” So, the university would have to justify why it exempts everyone but athletes.

      Interestingly though, Eugene argued in his Fulton brief, the university would not need such a justification. He reasoned that courts are not better equipped than the elected branches at determining whether the government’s interests are endangered by an exemption given to some, but not all, non-religious conduct.

      1. Which elected branch is at issue here?

        1. The university’s policies are subject to control by legislation and executive regulations carrying out that legislation.

    4. The decision SAYS ” the University retains discretion to extend exemptions in whole or in part”, but I’m dubious that religious exemptions are as optional as that phrase implies.

  3. Can Jewish students require that Michigan public universities not play any sports on Friday nights or Saturdays, simce games without them would deny them full participation?

    1. No, but I would think they would have a good case to argue that their non participation on those days did not jeopardize their status on the team, provided they were not away when they first joined, just as these students were not aware of any vaccine mandate when they accepted their scholarships.

      1. aware, not away.

  4. OK. On second look, it looks this may be yet another “government did something really stupid” moment.

    It appears the school issued a written policy allowing for exceptions, and then proceeded to deny all exceptions without explanation.

    If the policy hadn’t provided for exceptions, they might have won. But by providing for exceptions they had to be prepared to give specific reasons why they weren’t granted.

    Fulton established that exceptions can’t be matters of pure arbitary diacretion. So by acting as if they had the right to give an exception or not for any reason or no reason, it appears the school ran afoul of Fulton.

    1. I was pretty pissed as a religious person that they punted with Fulton instead of overriding Smith, but if it means that people can’t make bullshit “religious exemption” arguments for vaccination unless if the government is being stupid … I guess it works out. In this case. Still annoyed, but not as much.

  5. Once one has a religious exemption, the next part is for the determination of what accommodation will be offered. Delta Airlines was offering exempt employees the opportunity to have unpaid leave as their accommodation; surely not the paid holiday that the born-again religious had imagined for themselves.
    Likewise the school should offer the students the ability to take leave until the exigency has passed, then they may return and resume their studies where they left off.

    Religious convictions have sometimes come at dear expense. Such is the nature of genuinely held sincere belief. Businesses and schools need make only de minimus accommodations.

    1. Actually, I expect they had imagined simply continuing to do their job, just as the student athletes here were simply interested in continuing to participate in sports, not merely be listed on the team.

    2. Has any Delta case gotten to court? Looks like constructive termination to me.

      1. Its still perfectly legal to fire your employees for not being vaccinated, so I am not sure it makes a difference even if it is “constructive termination”

  6. To ensure the health and safety of its event staff and guests, effective September 10, 2021, all those attending events sponsored by the Ronald Reagan Presidential Foundation & Institute at the Reagan Library in Simi Valley, California and at the Reagan Institute in Washington, DC must provide proof of full vaccination status against COVID-19, or provide proof of a negative COVID-19 PCR test taken within three days prior to the event they’re attending at the Reagan Library or Reagan Institute. ‘Fully vaccinated’ means vaccinated at least 14 days after the guest’s second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.

    1. Of course. Those guys are at the top of the hierarchy of the grift.

      The comparison that comes to mind is American rightwing shock-jocks, the guys spewing out cookie-cutter hatred on syndicated local radio stations across the country. The middle of the pyramid guys who believe the antivax disinfo, guzzle horse medicine and die of covid, as people higher up the chain got vaccinated the second they could. One thing this has all shown us is at what precisely which point in that pyramid where people must openly acknowledge the grift. The suckers aren’t just the listeners, but people at a surprisingly high grade of the hierarchy.

      1. If Maria hadn’t written it, I would have to question the veracity. Martinned, always bringing the most trustworthy of sources.

        1. Trump got his vaccine in January…

          1. Yes, we should all be glad that the Trump Vaccines are available.

    2. Who would expect them to not roll over?

  7. “The University did not dispute that taking the vaccine would violate plaintiffs’ ‘sincerely held Christian beliefs.'”

    Sounds like this was the university’s biggest mistake.

    1. Then you should read your Bible again. Jesus clearly says in the sermon on the mount, right after the adultery bit, that it’s a sin to get vaccinated against contagious diseases.

      1. Plus the very significant probability that aborted fetal tissue was used to develop the vaccines.

    2. Under Thomas v Review Board, it would be very difficult for the university to prove otherwise.

  8. That’s certainly a unique definition of “victory”…

    1. What a bizarre comment. They won, WMU lost. How is that not a victory?

      Oh, wait, you think SARS-2 is the Black Death returned, don’t you?

      1. Yo, this was UWM’s request for a stay of the preliminary injunction and the district court’s proceedings pending appeal – that’s all.

        Nothing has really been decided.

        UWM will probably lose the case based on the factors listed in this stay denial but again, that hasn’t happened yet.

        1. That it’s not a final victory does not mean it isn’t a victory.

          Trafalgar was definitely a victory even if it wasn’t Waterloo.

  9. If I had been working for the university, and I wanted an easy and straightforward way to handle religious exemptions on a true case-by-case basis, it would be:
    a. “Do you have any of these other immunizations?
    b. If you have; in what year(s) did you receive those jabs?”

    If the student has never been vaccinated for anything, an automatic exemption.
    If the student was vaccinated as a child, but nothing within the past, say, 5 years, an automatic exemption.
    If the student says, “I’ve consistently had all my vaxx’s, but I became religious in year 20___ [something within the past 5 years],” an automatic denial.

    And, since the person is asking for special privileges that (slightly) raise the risk of danger to others, the school should also ask, in the close cases:
    “What religion do you belong to?”
    “Is non-vaccination part of this religion’s dogma? Or, merely part of your own good-faith interpretation?”
    “How often have you attended services in the past, for this particular religion? How often do you currently attend religious services?”

    [The above is only slightly tongue-in-cheek]

    I do not get the religious exemption at all…if anything should satisfy strict scrutiny, one would think it would be for a vaccination against an identified disease that has killed millions worldwide, and hundred and hundreds of thousands here. We have rules of general applicability, like “You can’t drive under the influence.” And I simply don’t see why it’s a problem to tell EVERYONE, “Sorry, we just don’t care that your religion mandates a constant buzz…you can be stoned slightly, all you want, as long as you’re not behind the wheel. But as long as your buzz raises the risk to other drivers and pedestrians–even if that increase is tiny…say, 1 tenth of 1%, it’s simply an unacceptable additional risk. Drive or follow your religious beliefs…pick one. And you get to choose which.”

    1. Not being vaccinated does not put anyone at risk of transmission – non-vaccination is hardly contagious.
      Being symptomatically infected puts others at risk of transmission whether you are vaccinated or not.

      Until you stop equating the two, you will continue to be wrong in your approach.

      1. My understanding was the infected people who had been vaccinated were MUCH MUCH MUCH less likely to infect others, as compared to infected unvaccinated people.

        If you are correct that those two groups are equally likely to infect others, than I totally see your point. (My own understanding–which is to the contrary–was formed several months ago, and I’ve done zero research since then on what new studies and new data are telling us; so I’m perfectly willing to change my position on this, if that’s where the science leads us.) If you have newer links, I’d definitely appreciate them posted here…and so would many other VC readers, I suspect.

        1. “as compared to infected unvaccinated people.”

          As compared to infected, immunologically naïve people. People who’ve had covid already, instead of being vaccinated, are a completely different case from people who never had it before.

          Probably the most irritating bit of official irrationality is this relentless determination to pretend there’s no such thing as natural immunity, that only vaccines can make you immune to something.

          1. And the distinction matters a LOT when, by the CDC’s own estimates, over a third of the population has already had the disease in question.

        2. A) the Israeli study shows that after 5-6 months the delta in the risk of transmission between a vaxed individual and an unvaxed individual is relatively narrow.
          B) One item that seems to have been ignored thoughout the covid discussions on risk of transmission is that more than 80% of covid transmissions are from fewer than 20% of the infected.

        3. SM,
          The compelling evidence supporting such a claim or its contrary, would be a measurement of the distribution function of viral titres in three very large populations: 1) vaccinated, infected but previously covid-naive, 2) vaccinated, infected but previously covid-recovered, 3) unvaccinated, infected but previously covid-recovered, 4) unvaccinated, infected but previously covid-naive. Distribution #4 has been measure for the wild, Wuhan strain.

        4. There are no studies on transmission proper … the ones out there infer transmission based on infection rate, but there are so many confounding variables that this is an extremely tenuous connection.

      2. Um… being infected puts others at risk regardless of symptomatic status.

        Then there are the studies that show that vaccinated people when infected are less contagious than unvaccinated people (when also infected).

        And the whole point of pandemic management is reducing transmission. When two people meet, if both are unvaccinated, the probability of transmission is higher than if one is and one isn’t, and the probability is even lower if both are.

        Odds. Probability. You know, *math*. Not always predictive in every situation, but the smart way to bet.

        1. Odds. Probability. You know, *math*. Not always predictive in every situation, but the smart way to bet.

          The probability of contracting salmonella from eating a medium-rare steak is greater than a well-done steak.

          The probability of a car traveling at 25 MPH resulting in pedestrian fatalities is greater than at 2.5 MPH.

          The probability of being struck by lightning is greater when walking outside than when cowering in one’s house.

          Just imagine the rate the mandates will stack up now that we’ve reached the enlightened age where the goal is not to live but simply not die!

          1. Good points

            long term immunity is much stronger from an actual covid infection than from the vaccines. In the case of the young, we should be taking advantage of young acquiring long term immunity. the quicker the young acquire immunity, the faster society emerges with herd immunity

            What is being advocated by the pro – “only partially effective ” vaxers is that the human species evolve to where the human race can only survive in a sterile environment. They may not grasp what they are advocating since they are focusing on the very short term..

        2. First off, no, asymptomatic transmission of COVID is basically not a thing. The rate is so small as no not be statistically significant. You’ll find some people that lump it in with pre-symptomatic people to push it up to a measurable amount, but not when taken by itself. There have been a number of studies on this.

          Second, people that are vaccinated are likely to have lighter symptoms. An specific infected person with a given level of symptoms is equally contagious, whether they are vaccinated or not. Your confusion probably comes from lumping all “infected” people into a single bin, rather than treating it as a continuous spectrum.

          Second, as a former professional statistician, I can assure you that if two unvaccinated people meet, if neither is infected, the possibility of transmission is zero – the exact same probably as if two vaccinated but uninfected people meet.

          The only way for the probability of transmission to exist is for one of the people to be infected in the first place. And this raises the likelihood to above zero, again, regardless of vaccination status.

          Many people are trying to use vaccination status as a direct proxy for infected status, but it is dishonest and irrational.

    2. I didn’t bother reading that wall of text past the point where you wrongly assumed that a religious objection to THIS “vaccination” could not be valid unless you objected to all vaccinations. That’s just dumb.

    3. We have rules of general applicability, like “You can’t drive under the influence.”

      Smith says that this is okay. (A RFRA may statutorily modify this, but it isn’t constitutionally required.) But Fulton says that a rule that says, “You can’t drive under the influence, unless in our discretion we give you an exemption” is not a rule of general applicability.

    4. SM811: An interesting compromise position.

      First point: There is a material difference between dying ‘with’ covid-19, and dying ‘from’ covid-19. We will never know with certainty the numbers associated with each (with vs from).

      Second point: Your third condition seems arbitrary, “I would deny religious exemption if you recently converted”. Do you really want the government – ANY government – determining the worthiness or sincerity of religious belief?

      Strict scrutiny means just that, I thought. There has to be a compelling state interest strong enough to override our enumerated 1A rights, AND the remedy the government applies must be least restrictive means. That is not happening here = least restrictive means or compelling interest.

      I kind of liked your first two conditional tests, though.

  10. So what’s the practical outcome here?

    Are all the plaintiffs now allowed to participate in athletics without being vaccinated, or does WMU need to provide reasons why the religious exemption is being denied in each case?

    Pending resolution of the actual case, of course. My understanding is that this ruling simply denies a stay of the preliminary injunction. By the time this one winds it’s way through the courts the students’ eligibility for participation in intercollegiate sports will likely have long passed.

    1. The district court’s order did, however, allow the University to require plaintiffs to wear face coverings and take COVID-19 tests to participate in athletic events.

      If WMU started now to provide reasons why the religious exemption is being denied in each case that would not void the order in any automatic way.

  11. It is amazing how suddenly so many people have religious objections to vaccines. It was pretty rare before covid. It is almost like they are lying just because they don’t want to get vaccinated.

    1. People have “objections” for whatever reason, but if they can wrap their objections in religious garb they get a sympathetic hearing when otherwise they wouldn’t. Probably explains most of it, but the sixteen plaintiffs might well be “Christian Scientists” who reject all modern medicine, so who knows?

      But you’re right that the knee-jerk anti vaccine response is new – a few years ago it was mostly just the woo-woo dirty hippie tree-huggers who were anti vax. Shows what an effective propaganda campaign will do.

      1. There are some legitimate religious objectors, I would say that a good clue would be if they had objections to vaccines before covid.

        1. I suppose there could be some people who were not previously aware of the use of abortion derived fetal cell lines in vaccine development.

          1. That is mostly a new objection. Those cell lines were used for decades to develop and test many many drugs. And now they are suddenly finding it objectionable?

              1. That is my point. That paper pretty much says that taking those vaccines is allowable, but not to be confused with condoning how the cells were acquired. If someone prior to covid found this so objectionable as to not get those vaccines nor any other drug made with those cells then they would have a legitimate case now. Otherwise not.

                1. That paper pretty much says that taking those vaccines is allowable, but not to be confused with condoning how the cells were acquired. If someone prior to covid found this so objectionable as to not get those vaccines nor any other drug made with those cells then they would have a legitimate case now. Otherwise not.

                  That’s a pretty significant underreading of the (admittedly long) paper. Among other things, the reasoning you captured above (1) specifically hinged on the severity/fatality of the disease being vaccinated against (Rubella/German Measles), and (2) specifically cast the decision as a no-win situation “which must be eliminated as soon as possible” (15+ years ago).

                  So no, due to both of the above factors, someone most certainly could have decided to get the rubella vaccine and pass on this one.

                  1. It would be hard to argue with a straight face that a pandemic that has already killed 1 in 500 Americans is not a public health threat.

                    1. It is hard to argue with a straight face that trying to require universal vaccination for SARS-2 (and and apparently endless stream of boosters) will end the health threat, such as it is. Stop trying to evade distinctions.

                    2. You mean the pandemic that, at its peak, managed to be the distant third cause of death in the US?

                  2. “COVID-19 was the third leading cause of death across all of 2020, but in December 2020 and early 2021, the illness surged and briefly became the number one leading cause of death in the U.S., far surpassing even cancer and heart disease deaths in those months.”


                    1. And how many of those deaths were of college athletes? My guess, based on a similar, but slightly less favorable demographic (military service members) is probably in the single digits (the military has had fewer than 20 COVID-19 deaths).

                    2. Presently the mean daily CFR for COVID-19 in the US has fallen to slightly over 1% that is 5x greater than in the UK, Norway, and Sweden.

                2. What part of “not previously aware” is eluding you?

  12. Increasingly, and especially among younger Americans, religion is known mostly for (1) old-timey intolerance, (2) demands for special treatment with respect to bigotry, (3) lethal recklessness, (4) disdain of science and modernity, and (5) demands for special privilege with respect to flouting a virus that has rocked the world.

    I welcome the predictable, continuing diminution of the role of superstition as modern America continues to improve.

    (If you check one music video this month, this should be it. An insightful examination of a great song.)

    1. It’s the overreacting COVID Loons that have done the bulk of the damage.

      1. I am pleased to observe that the leading conservative legal blog has distilled into an extended, futile whine by our society’s left-behind misfits.

        Federalist-Heritage-Republican-Olin-Scaife-Bradley approved to the very end, of course.

  13. So the school made TWO mistakes: they made exemption decisions completely arbitrarily, and they allowed non-athletes to go maskless. Yes, I can see how those holes would be big enough to drive a tractor trailer through. Of course they lost.

  14. Lawyers on the bench with supernatural beliefs deferring to religious beliefs with are supernatural.

    1. Feel free to remove religion from the First Amendment if you can.

      1. Why remove religion from the First Amendment? People should be entitled to believe and worship as they wish.

        The relatively recent push to flatter limitless claims for special, sketchy, superstition-based attempts to avoid generally applicable laws — in particular to carve out snowflakey privilege to engage in old-timey bigotry — is a different issue.

        And competent people neither advance nor accept supernatural arguments or positions in reasoned debate among adults, particularly with respect to public affairs.

  15. Increasingly, our beloved President, leader of the Democratic Party, zealous defender of all that is illiberal and ill-conceived, resembles nothing so much as one of those bobble head toys, stuck to the dashboard of the country’s used car. The engine is screaming, the tires are bald, we’re stuck in 2nd gear driving down the interstate, and ol Joe is just nodding his head, mumbling into his lapels.

    And there’s not a durn thing anyone can do about it. For THREE MORE YEARS.

    Thanks, fellow travelers. Please, for the love of Mike, vote these losers out of office as soon as possible. I only say what you said about the Orange Man Bad. You know it’s true.

    1. Kids, kids. Both sides are awful.

      1. Yes, but there is a big difference in which direction the media and other “elites” point their lies. “Russian collusion.” “It’s a lifelong stutter, not cognitive decline.” “That laptop has all the hallmarks of a Russian information operation.” Americans need to remember that when they are collating inputs to inform their voting decisions.

  16. A neutral law of general applicability “need not be justified by a compelling governmental interest”

    This should be read as you don’t get to whiz through stop lights because you are late for church, rather than government gets the honor of denying you peyote.

    1. “you don’t get to whiz through stop lights because you are late for church”

      Excellent authority contravenes that point rather precisely.

      (Doug — the “Ragin’ Cajun” — missed his cue about 3:15 in that time but it was nothing a professional outfit couldn’t handle, especially with the Twenty-Dollar Church Of The Sacred Bleeding Heart of Jesus located somewhere in Los Angeles, California on its side. “Thank you, Jesus. Thank you, Lord.”)

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