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Religion and the Law

San Diego Schools Must Allow Religious Exemptions from COVID Vaccination So Long as They Allow Exemptions for Pregnant Students

That at least is the temporary injunction pending appeal, just issued Sunday.


From Doe v. San Diego Unified School Dist., decided on an emergency basis Sunday; the majority opinion is written by Judge Marsha Berzon and joined by Judge Mark Bennett:

Appellants' opposed emergency motion for an injunction pending appeal is granted in part. The injunction shall be in effect only while a "per se" deferral of vaccination is available to pregnant students under San Diego Unified School District's COVID-19 vaccination mandate. The injunction shall terminate upon removal of the "per se" deferral option for pregnant students.

The panel is issuing this order today in an abundance of caution because the plaintiffs have represented, without contradiction from the defendants, that tomorrow, November 29, 2021, is the last date on which students sixteen and over must obtain their first vaccination dose to avoid restriction to independent study beginning in January 2022. Written dispositions explaining the panel members' conclusions will follow shortly.

Judge Sandra Ikuta concurred in part and dissented in part:

I concur in granting Doe's emergency motion for an injunction pending appeal. But I would keep the injunction in effect until the San Diego Unified School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons, because any unvaccinated student attending in-person classes poses the same risk to the school district's interest in ensuring a safe school environment. See Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (holding that strict scrutiny applies when government regulations "treat any comparable secular activity more favorably than religious exercise," and that "[c]omparability is concerned with the risks various activities pose" to the government's interest) (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 6768 (2020)).

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  1. So according to Wikipedia,

    -Marsha Berzon was appointed by Bill Clinton,

    -Mark Bennett was appointed by Donald Trump, but in the Senate "[a]ll 27 votes against his confirmation came from Republican Senators due to his defense of Hawaii's restrictive firearms laws in court." The linked article also says Bennett was opposed due to his criticism of Citizens United.

    -Sandra Ikuta was appointed by George W. Bush.

    1. This is tendentious at the best of times, but is just trying to buy partisanship when looking at District Court judges.

      1. 1. No, who apointed the judge is generally a pretty good predictor of the result in cases with a political angle, particularly once you get into the Clinton, Bush jnr, Obama, Trump, Biden zone. Bennett looks an interesting outlier though - no Dem dissenters, but half the Republican caucus opposed. Not your average Trump appointee.

        2. These are Appeals Court judges

        1. 1. Do you have a source for that? My understanding is that partisan vetting is an Appeals Court and above thing.

          2. Fair enough. Shoulda Googled.

      2. I'm not sure how one "buys" partisanship.

        Two justices with, apparently, "liberal" jurisprudential views seem careless about exposing fetuses to the vaccine, offering such exposure as an incentive to be allowed to vaccinate religious objectors - is this because they two judges are satisfied from their research that there's no risk to fetuses?

        The non-"liberal" judge won't be satisfied if fetuses get the vaccine, they seem to be concerned that there's a secular but not a religious avenue for seeking exemptions, a broader issue than pregnancy.

        I would imagine that Trump appointed the Bennett guy because of Bennett's connections, not because of the soundness of his jurisprudence.

        1. CDC recommends that pregnant women should be vaccinated. It seems to make sense for courts to rely on agency rulings if those rulings aren't being disputed (if this case included arguments of vaccine danger to fetuses it would be different, I don't know if that argument was made).

    2. Given they're Circuit judges that have to follow the recent SCOTUS doctrines laid down they cite I'm not sure what this is supposed to prove.

      1. The Ninth Circuit was not so compliant earlier in the pandemic.

        1. The Ninth Circuit had little to go on in many cases.

          Heck, I'm not sure if any of them do even now. Better require religious exemptions seems to be the principle...

  2. If vaccines work as well as they claim whats with all the effort to protect the fully vaccinated from the unvaxxed? At this point I'm starting to think the antivax mommies ranting on facebook have more confidence in the vax than the clowns putting up all these mandates

    1. It's a question of herd immunity threshold and effective reproduction number of the currently active strains. Officials want people to get vaccinated so that they stop infecting so many other people. Vaccination gives roughly the equivalent of a 10- to 15-year reduction in age, when considering severe disease and death. It's not a panacea, and only trolls imply that anyone says it is.

      1. And only trolls pretend that already having had Covid, as the CDC believes over a third of Americans have, doesn't confer at least as good of immunity.

        But trolls are making our medical policies these days.

        1. Vaxxes are based on January 2020 Covid and so recent natural immunity is most likely superior to vaxxed immunity.

          1. That depends on what you caught, SC.

        2. Citation for this claim?

          There also might be other factors at play, like how to standardize efficient demonstration of that vs. vaccination.

          1. Science Brief: SARS-CoV-2 Infection-induced and Vaccine-induced Immunity

            Bottom line is that natural immunity is more variable than vaccine response, but still pretty robust most of the time. Their chief complaint is a lack of relevant studies. I complain about that, too; It's like the people funding studies have been actively avoiding collecting data that would allow a valid head to head comparison of infection derived and vaccine derived immunity. They've actually done more work to see if vaccinating people who've had covid enhances immune response, (It does, no surprise.) than to see if that immune response actually needed any enhancing.

            1. Brett, this is *absolutely* an area of current scientific research. Your confidence goes beyond where the science points as of yet.

              And calling people who disagree with your take trolls is just dumb.

              1. S_0,
                "*absolutely* an area of current scientific research,' but apparently not funded by the CDC.
                As I have pointed out to you previously, the science has been convincing to public health agencies throughout the EU.

                Just to point out another area where the CDC is "slow." The UK recognized rapidly that one could successfully mix booster type with the type of previous vaccination. CDC i more than a few months behind in finally recognizing this fact. Why so slow? One has to consider explanations beyond "the science."

            2. From your own source:

              "A more recent analysis of data from a network of 187 hospitals in the United States found that, among more than 7,000 COVID-19–like illness hospitalizations whose prior infection or vaccination occurred 90–179 days beforehand, there was a 5.5 times higher odds of laboratory-confirmed COVID-19 among previously infected patients than among fully vaccinated patients"

              "Based on results that included over 26,000 RT-PCR positive tests, they found full vaccination to provide the greatest protection during the Alpha predominant period (79% vs. 65% reduction in risk),"

              And, of course, what Sarcasto said. You're modeling confirmation bias pretty well!

              1. Um, read again: "more than 7,000 COVID-19–like illness hospitalizations." Not actual verified COVID. (It wasn't at all clear at the time that study came out what in the world they thought they were meaningfully measuring with that sort of study design, but that's a discussion for another thread.)

                Every other source cited in that article concluded immunity from natural infection was as good or better than from vaccination for recent time periods.

                1. "Based on results that included over 26,000 RT-PCR positive tests, they found full vaccination to provide the greatest protection during the Alpha predominant period (79% vs. 65% reduction in risk),"

                  Talk about read again...

                  1. And back to you: "during the Alpha predominant period." I clearly accounted for that when I said "for recent time periods."

                    Think; think again; (maybe) post. Try it -- you'll be amazed!

                    1. May 2021 isn't recent enough for policymakers to rely upon? I mean, August? I've grown a Duck Dynasty beard since then...

                    2. May 2021 isn't recent enough for policymakers to rely upon?

                      Only if they surprise us all and ratchet the bar even lower on their capacity for critical thinking. Alpha has been gone for many months now. Crowded out. Sayonara. While the growth rate of your beard is no doubt impressive, statistics about vaccine efficacy against Alpha simply don't provide meaningful information going forward.

                    3. Results about an early formation of a novel and mutating virus provide no basis for policy? Interesting.

                    4. When the subject is about protection level of vaccines vs. natural infection against actual surviving strains of said virus in the real world today? Your question answers itself.

        3. A recent paper promoted by the CDC, based on data collected in Kentucky, implies that the protective effect of one dose of an mRNA vaccine is comparable to the protective effect of a past infection, and a dose of vaccine after a past infection does reduce risk of a second infection. Unfortunately the paper was designed to echo the party line that everybody should get as many shots as possible so the authors avoided doing any analysis that would inform policy making.

          1. Unfortunately, that Kentucky study was comparing people who'd been infected half a year or more earlier, to people who'd been recently vaccinated. Since immunity naturally declines over time for both sets of people, this was a pretty heavy thumb on the scale in favor of the vaccines.

        4. "But trolls are making our medical policies these day"
          Brett, that is an extreme and indefensible claim. You know better than that.
          I do agree that the CDC grossly errs in not recognizing infection acquired immunity.

      2. I'd love to see where you get the 10-15 year reduction ... it seems made up out of thin air. Though there is some evidence of reduction of severe disease, I am aware of no reliable evidence in reduction of death (and the original Phase III trials were not powered to identify such).

        1. AtR,
          We often disagree. But is am equally skeptical as you about this amazing 10 to 15 year number which would be statistically and systematically impossible to confirm based on present experience.

      3. Michael,
        There is likely no herd immunity possible for SARS-CoV-2 due to the rapib evolution especially in patients with long COVID. The present reproduction number in the US that characterizes the spread of any strain is 0.75.
        "Vaccination gives roughly the equivalent of a 10- to 15-year reduction in age, when considering severe disease and death. "
        where did you get that number?

  3. That's insane. Pregnant people and people with religious objections are in no way comparable.

    1. It’s a question of how much an emergency is it.

      If it’s such a dire apocalyptic emergency that everyone could die, there should be no exceptions.

      If there are exceptions for some, it’s not really quite an emergency, so the exception for the others should be granted.

      1. "It’s a question of how much an emergency is it. "

        Is it that only? There might be a more valid medical reason for someone with a medical condition than someone with a religious conviction.

        1. Valid reason for you to want it, but not valid reason to grant it if herd immunity is the issue.

          1. If it's the only issue, yeah. But life's not like that. First and foremost government exists to protect us physically. It's the most compelling of interests. A certain numbers of vaccinations would protect everyone. In cases of medical exemption there is a situation where there could be opposing physical harm to individuals. While religious beliefs are very important, they are not as compelling.

      2. In this case there may be no good reason to excuse someone from vaccination due to their being pregnant. But the principle cited, of giving religious reasons for relief no less deference than any secular reason, is absurd.

        Contrast a medical relief request which really is based in reason and evidence, with a relief request based on religious dogma – i.e. with beliefs whose epistemological peers are breatharianism, entrail-reading, and spirit channeling. A nation whose government gives the latter anything like the same deference as the former thereby admits to those in less benighted times and places (i.e. to most everyone, assuming a long-term, non-apocalyptic perspective) that it still has at least one foot in the Dark Ages.

      3. "If there are exceptions for some, it’s not really quite an emergency"
        That is an overstatement and based on ignorance.
        A vaccine that causes severe and immediate harm to persons with some conditions should always have an exception. The person needs be restricted in other ways.
        Example: Certain anti-seizure drugs taken by epileptics are strongly incompatible with several of the vaccines. The contraindications demand an exception.

    2. Progs don't like either group and would probably get rid of both completely if they had a chance.

      Thats one way they are comparable.

      1. Conservatives show their love for pregnant women by cutting funds for programs for them and discrimination protections I guess.

    3. I would say the same thing - *except* that the CDC says it's fine to get the vaccine if you're pregnant. If it's just a feel-good measure and not something based in science, that changes the equation.

      1. Drugs were traditionally classified into a few groups:

        * Demonstrated safe during pregnancy (few drugs earned this classification, because proving safety in a small group is rarely cost-effective)

        * No reason to believe the drug is not safe during pregnancy (very common)

        * Reason to suspect the drug is not safe during pregnancy, based on mode of action or animal testing but not proved in humans (also common)

        * Known to be unsafe during pregnancy (uncommon in approved drugs; included Accutane, Thalidomide, and some chemotherapy drugs)

        Few drugs had enough evidence to put them in the first category.

        Doctors might caution women about drugs in the second category. Most of those drugs would be proved safe if anybody cared to do the trials. A few would not. We know the COVID-19 vaccines have not let to an epidemic of flipper babies. We don't know about more subtle effects.

        1. It took the world 3 years to identify Thalidomide as the cause of "flipper babies", in large part because of:
          (i) a time-bound adverse effect - the drug had to be ingested during a narrow window in the pregnancy and was otherwise harmless,
          (ii) stonewalling from the pharmaceutical industry (much like we see these days regarding vaccine adverse effects).

          Up until this pandemic, the best obstetricians were always exceedingly conservative about *any* drug use during pregnancy. This was simply an admission of humility and the limitations of modern medicine.

          Once fear got thrown into the mix, all bets were off. This is a well-known phenomenon that is often used by social engineers to manipulate people into imprudent behavior, and it is not surprising that it is effective today.

          1. Thalidomide was never approved in the US because it could not be shown to be safe.

            1. Thalidomide was not approved in the US because one pesky woman refused to take part in the "old boys club":

              Many other drugs had no problem getting approval and staying on the market for years before it was determined that they were not safe: Accutane, DES, Metrazol, Seldane, Vioxx, ...

              1. Kelsey knew nothing about the problems with "flipper babies": she was convinced it was destroying kidneys - something there was never any evidence for. She did hold up approval long enough for the English to finish their investigation, though, revealing the fetal development problems.

                An excellent example of sometimes being right for the wrong reason.

        2. We know the COVID-19 vaccines have not let to an epidemic of flipper babies.

          [counts on fingers]

          Given that vaccines weren't generally available for younger age groups until March-April, we're just on the cusp of seeing a significant volume of births where the mother was vaccinated early on in the pregnancy. So there's literally not enough data to make that call yet.

          And recall the entire Thalidomide "epidemic" involved only about 10k babies worldwide. That signal was detectable because only a relatively small slice of the population was taking the drug. Here with such a significant amount of the relevant population vaccinated, a +10k (or likely even +100k) loss globally would be exceptionally hard to tease out from the baseline ~3-4% of births with serious defects.

          And then someone actually has to run the study. And be brave enough to publish the results if they're not favorable to our new pharma overlords.

          1. "be brave enough to publish the results if they're not favorable to our new pharma overlords."

            This is going to be delicious going forward!

            1. This is going to be delicious going forward!

              Why is that? My comment history is public -- if you think you can find one whiff to the contrary, bring it here. Good luck.

              The only "delicious" thing is how the traditional lefty slur "Big Pharma" has utterly fallen off the edge of the map over the past year, save a bit of occasional meek bleating about profit margins as they obediently shuffle into line and expose their deltoids for the "this time for sure, Rocky!" dose.

              1. Who knew quite how prescient this would be? This afternoon the bevy of pharma-beholden political monkeys with white lab coats made their next move:

                The federal agency previously said that while every adult was eligible for a booster, only those age 50 and older and those 18 and above in long-term care should really make a point of getting it. But given heightened concerns over Omicron, the CDC now says that everyone over 18 “should” get the boosters.

                This, for a 5-day-old flash in the pan that causes, so far as anyone has seen thus far, mild illness, and there's presently no clue if the current vaccines would reduce that (to mild-mild illness?) anyway. Pathetic.

    4. Pregnant people and people with religious objections are in no way comparable.

      Indeed. Pregnant women may (or may not) face some risk of an adverse reaction to the vaccine. People with religious objections face the certainty of eternal hellfire (or whatever consequences attend the flouting of their religious precepts.) And perhaps some risk of an adverse reaction to the vaccine.

      1. My religion says that paying income taxes will roast me in the eternal hellfire for sure.

        Some corporations get tax exemptions, so my religion should be treated just as good. Where do I file my emergency motion for an injunction? It's a big emergency because the taxes that will send me to hell are due soon.

        1. Religions are treated very favorably under tax law. Are you unhappy Evil Corporation got its property taxes reduced 50% for 20 years? Your church can pay no property taxes at all on property used for religious purposes. Unhappy about income tax deductions? Your church doesn't have to pay income tax except on commercial activities. (You do have to pay employment tax, but so does EvilCo.

          Traditional groups like the Amish have some special status under federal tax law. The way the rule was written (and I haven't checked it in a long time) required a continuously held belief since the mid-20th century or so, to prevent a flood of insincere founders of new religions claiming exemptions or revoking their social security numbers as tax rates rose. And something happened with Scientology around the 1980s or 1990s. I remember a lot of people tried to get their hands on a secret settlement between the IRS and the Scientologists and were rebuffed by the federal government. I have not followed the cases; maybe all is in the open now.

        2. Well, there's a two-part test. But if you can pass both parts, you can stop paying taxes.

          1. Is the tax code uniformly applied? That is, does the IRS allow exceptions to paying taxes for secular reasons? I'm not aware of any but if you can make the case that they allow (for example) pregnant people to not pay taxes, then they likely would also have to recognize the need for religious objections.

          2 and much harder. Can you convince a judge that your newly-found religious objections to the income tax are sincerely held? Contrary to many of the claims in these discussions, courts have lots of experience sorting out sincerely-held beliefs from mere pretexts. The military has been doing it for conscientious objector status for ... I don't actually know how long. Many decades at least. It's hard work and very fact-intensive but it's not really that complicated.

          1. The military may have been dealing with conscientious objectors for a long time, but that doesn't mean they were necessarily doing it *right*.

      2. It was about fee-fees all along...

      3. " People with religious objections face the certainty of eternal hellfire "


        Childish superstition can be powerful . . . powerful enough to separate the gullible from the reality-based world . . . but that does not mean competent adults should flatter it.

    5. Are you saying that being preggo is not a secular activity?

      1. She was crying out "Oh God! Oh God!" when she *became* pregnant...

    6. "That's insane. Pregnant people and people with religious objections are in no way comparable."

      Any evidence that the vaccine is harmful to pregnant women? If not, how's an irrational desire to avoid the vaccine if pregnant different from an irrational religious objection?

  4. I know at least a couple of pregnant people who got the vaccine, and the CDC says it's fine, so I don't get this exception at all.

    1. The CDC has not exactly distinguished themselves with stellar performance, Sarcastr0. Pardon me if I take their guidance with a ginormous grain of salt. 😉

      1. Anti-vaxxers have quite a worse record.

        1. Regardless, one would have hoped the CDC would not have been so inconsistent with their messaging. Who is the public supposed to trust when even the CDC and WHO have had disagreements with regards to the pandemic?

          1. When dealing with a novel thing there's going to be some revising, the question is what it reasonable at the time? I submit a shocking claim: people with a lot more training and experience in the subject deal with things in their field better than amateurs.

            1. There's going to be some revising, sure, but we've had open admissions that there's been some tactical lying, as well. Like telling people not to bother with masks, early on, not because they thought masks ineffective, but instead because they wanted to save them for medical professionals.

              1. Lol, and no 'tactical lying' on the part of anti-vax amateurs!

        2. So what!
          The CDC is supposed to be staffed with competent scientists

      2. Whatever. Distrust experts at your peril.

        They're the guidance legislators should be following.

        1. When the CDC drops the political science, and stick with biological sciences, they will regain trust and confidence.

          1. Disaffected, superstitious, right-wing cranks are among my favorite culture war casualties.

          2. One wonders what accomplishments in the fields of biological sciences Commenter_XY has...

            Or is he engaging in political science (heck, one wonders what accomplishments he has there!)?

          3. They do neither - they do public health. You disagree with their guidance, so you declare their expertise nonapplicable. But that's coming from you, not from them.

            Yeah, they've screwed up, but to decide they no longer count is like saying the FDA doesn't count because of thalidomide.

            1. Who said 'not count' Sarcastr0? Not me. I said, 'regain trust and confidence'. They pissed away their trust and the confidence of the American people by focusing on political science and not medical science.

              My beef with the CDC is they forgot their mission. I thought their mission was medicine, and medical science. Somehow, a healthy dose of political science crept in there and messed it up.

              1. You are welcome to ignore the ignorance-based bigotry-fueled lathering of clingers in this context, Commenter_XY.

                Much as better Americans will increasingly disregard the concerns of science-disdaining, superstition-infused, lethally reckless, antisocial, backwater Americans.

                Enjoy the remainder of the culture war. I know I will.

              2. You don't trust the experts. For reasons largely based on your own characterization of their motives.

                That is all you and nothing about the CDC.

                1. Actually when you look at timelines of CDC pronouncements, reversals, reassertions, and crazy statements by its director, it says a lot about the CDC.
                  I'd say they have done a lot in walking back their once formidible credibility

        2. S_0
          The CDC is at odds with every public health agency in the EU regarding "natural immunity." Their record in this pandemic is mediocre at best.

          1. Public health is about more than weighing natural immunity. But you knew that.

            As to the fact you presented, are you appealing to scientific consensus? How the conservative worm has turned!

            In reality, of course, the papers make it clear that the science is absolutely not in on that anyhow. We don't have the data yet for a conclusive single study, much less anything longitudinal.

            1. S_0,
              It seems that you are dodging the comment.
              CDC refuses to even deal with the issues of the differences of vaccine effect in covid-naive and covid-recovered persons Given that so many other countries will equally competent health infrastructures have responded, the response from CDC and the excuses that they offer have nothing to do with being conservative or prudent.
              CDC has never retracted, modified or qualified its statements about the influences of both physiological and societal co-factors despite evidence in the peer reviewed literature to the contrary.
              When our government(s) use the phrase "we follow the science," they are being disingenuous at best. They are just trying too use melodious words to say "just obey."
              You've had training as a physicist, and therefore your should know that there will never be a single conclusive study in an area in which it is impossible to control all the variables.

        3. "Distrust experts at your peril.

          They're the guidance legislators should be following."

          Some circular reasoning there.

          1. Sure, TiP, expertise is circular. So you should just take your best shot on what you wanna do based on having read lots of opinion articles that agree with your priors.
            And any kind of collective action problem bedamned.

            Helluva way to live in a society.

      3. True... but if we aren't trusting the CDC, then *everyone* should get an exemption.

    2. The CDC does not have any special skill in determining pregnancy risk. If a drug maker wants to put "safe for pregnant women" in its marketing literature it's the FDA's job to approve or disapprove.

      Pregnant students are such a small segment of the population it doesn't matter if they are vaccinated. If a 95% vaccination rate is not good enough it's unlikely a 96% vaccination rate will be good enough. There's no law of nature saying a 100% vaccination rate is good enough. The CDC is just acting out of instinct, because the party line says shoot up as many people as possible.

      The number of people with sincere religious beliefs is also small enough it doesn't matter. With the rise of the modern anti-vaccination movement most "religious" objections are really policy disagreements, hence the pre-COVID movements to revoke religious exemptions.

      1. The CDC does not have any special skill in determining pregnancy risk.

        ...What do you think the CDC does?

        1. The D in CDC is for disease. The D in FDA is for drugs.

          Prior to the pandemic I would have credited the CDC with expertise in epidemiology, but nobody seems to be doing a good job with that.

          1. You can discard the experts if you want, but this name-game nonsense just makes it look like you have an outcome and the CDC is in the way.

    3. The injunction stated, "Written dispositions explaining the panel members’ conclusions will follow shortly." So as of now, we don't know what the school's reasoning was for the pregnancy exemption. That being said, I would not categorically judge the rationality of the exemption based on the CDC. I would expect there might be other salient sources depending on the reasons for the exemption.

    4. and the CDC says it's fine

      Behold today's secular parallel to "the Pope has decreed." Fairly ironic in the context of the current discussion.

      1. Lol, yes, relying on top scientists is the same as relying on a religious figure.

        Shorter LOB: Inductive logic, what is it?

        1. relying on top scientists

          Another unmoored confession of your faith. Keep 'em coming.

          1. Science-disdaining, superstitious, left-behind, mainstream-hating right-wingers are among my favorite culture war casualties.

            1. Science? Nah. I do indeed, however, disdain the self-proclaimed, failing-upward "experts" that routinely treat us to such feel-good superstitions as "vaccinated people do not carry the virus, don’t get sick" and double masking. Oh, and don't forget well-done burgers.

            2. "Science-disdaining, superstitious, left-behind, mainstream-hating right-wingers are among my favorite culture war casualties."

              Arthur, I could swear that just recently you were in favor of exemptions for pregnant women. What's changed?

      2. Presuming experts are right is the new secular faith!


        1. Presuming experts are right is the new secular faith!

          Nay, my child. Squeezing your eyes shut and believing (in the face of screaming red flags to the contrary) that this particular bevy of governmental bureaucrats somehow managed to be generally populated by actual experts rather than a wad of politically-connected people with mediocre academic backgrounds but impeccable demographic proportions who couldn't make it in the private sector (until it's time to jump out and be a no-show no-work "consultant" back to your prior fam, anyway) is the new secular faith!

          1. Remaining ignorant about who the CDC hires and what they do is helpful if you want to feel justified in dismissing them in Internet arguments.

            Not so great if you want to do much else, though.

            1. Remaining ignorant about who the CDC hires and what they do

              Cult indicator #39: I'd have no choice but to agree with you if only I understood The Truth.

              Please grace us with the story of salvation, brother. Tell us of the wondrous miracles performed by this anointed class. Explicate the unbelievable capabilities of these mental giants. No cherry picking allowed -- we want it all. Hallelujah!

  5. If you ask, "How come so many cases with religious objections?," I don't think you get a simple answer. I suspect there are at least two rationales at work.

    First, you have folks who are deeply religious, who maybe have never objected to a vaccine, but who see Covid as an opportunity to win another broad and strongly protective grant of privilege for religion. Thus, for folks like that, it's an attempt to build further on the base of legal protection for religion already afforded by RFRAs. Except for any who have been objecting to vaccines all along, I don't think that group should win its cases. RFRAs are already so strongly protected by precedent that inviting on dubious grounds further expansion of their scope would be a mistake.

    Second, you have folks who are not so religious, but who don't want vaccines to be used, or maybe don't want them to succeed, for political reasons. For them, open-ended opportunism looks good. There is no practical limit on the number of potential political objectors, and given RFRAs, no real way for a court to turn them away en masse.

    The unlimited potential size of the latter group ought to cause courts to see it as not comparable, for instance, to the group of pregnant women. Those are a group objectively limited in number, and testable. From the point of view of assessing risk, fewer vaccine objectors in one group gives it a reasonable argument that exemption presents a smaller public risk, compared to an unbounded number of objectors in another group. More exemptions always means more risk.

    Any precedents to the contrary are unwise, and ought to be re-examined.

    1. I agree that few people would have a legitimate religious motive for avoiding the Covid vaccines. Christian Scientists, maybe, a few others, and some people with one off beliefs.

      And, yes, there have been plenty of politically motivated objections to the vaccines.

      But you're excluding any mention of probably the largest group of people claiming religious exemptions: People who, while not having a general objection to vaccination, are particularly suspicious of the Covid vaccine for one or another reason. And see a religious objection to be their only likely option for avoiding it, since the courts have little regard for secular medical liberty outside of the context of abortion.

      I don't think such concerns are really well grounded, but that doesn't make them pretextual. (The concern, I mean, not the claim of religious objection.) People can sincerely believe silly things, and the medical authorities haven't covered themselves in glory in terms of the reliability of what they've had to say about Covid. Fauci, in particular, has become a walking joke, and I'm amazed he's still employed, given that his credibility is totally shot to the point where, if he said the Sun rose in the East, people would start to doubt it.

      1. " Fauci, in particular, has become a walking joke, and I'm amazed he's still employed, given that his credibility is totally shot to the point where, if he said the Sun rose in the East, people would start to doubt it."

        The least self aware man in the world?

        1. He's actually very self-aware, in a narcissistic kind of way. I mean, who keeps an oil painting of themselves in their office, where they can look at it while working?

          1. There is no government bureaucrat - NOT ONE - worth 400K a year.

            1. That's silly. If government wants the best they have to pay industry equivalents.

              1. But why would they pay it in order to not get the best?

                1. In your medical/biological expertise you'd like to argue Fauci couldn't get that salary in industry?

                  1. As a celebrity he could name his price in 2021, but ten years ago he was a guy with a scientific education and management experience. What job does our alternate universe Fauci hold? Head of an R&D division in big pharma? Reviewing FDA applications under supervision of a lawyer? Running a lab?

            2. " There is no government bureaucrat - NOT ONE - worth 400K a year. "

              How is everything in Pig's Knuckle, Arkansas these days? Still a rousing blend of indolence, backwardness, envy, resentment, and superstition?

            1. Would I deny that Trump is a narcissist? Nope.

      2. " Fauci, in particular, has become a walking joke, and I'm amazed he's still employed, "

        Birther Brett doesn't like Dr. Fauci.

        Ted Cruz proposed that Dr. Fauci be prosecuted.

        Prof. Volokh endorsed Ted Cruz.

        Brett and Prof. Volokh deserve each other at this White, male, "often libertarian," right-wing-fringe blog.

        Carry on, clingers . . . so far as your betters permit, that is.

      3. When facing the prospect of death people quickly find religion. Newly found religion does not have to be pretextual as such. There are very few atheists to be found on the front lines of battle.

        The jab presents us, however unlikely, with the prospect of immediate or early death as well as general paralysis, Bells, blindness, loss of hearing, infertility, cognitive compromise, cancer, heart damage, etc... Finding religion is not an unexpected consequence.

    2. Yup, only 2 possible choices. Definitely.

      Either SL is a failed publisher and terrible logician. Or SL is a failed publisher and politically motivated. Obviously the only possible choices.

    3. For the majority of folks, “religious conviction” is merely an easy excuse in furtherance of their tantrums. Nothing in the Old or New Testaments speaks against vaccines or indicate any moral imperative to object to or fight against giving/receiving vaccinations. So every alleged Christian claiming religious exception is full of shit. But the courts cannot say they’re full of shit, or make them prove this conviction of theirs, so “sincere religious belief” it becomes.

      1. Some of them seem to really believe that god does not want them to get the covid vaccine. It's possible that they have only recently been convinced of this, but reading the many accounts of the now dead on sorryantivaxxer, they seem to be all in on the religious justification. It would be too exhausting to devote that much energy merely in pursuit of their tantrums. For some of them it seems that they would have had to quit their church, their circle of friends, and maybe even quit their entire community if they didn't trust god over the vaccine.

        1. The fact people are so easily able to convince themselves of their own bullshit is well-documented and something I unfortunately confront weekly. Self-delusion is a kind of belief, I suppose. But I fall short of considering it “sincere.”

  6. If religious believers want to respond to the diminution of religion in modern America by making religion known primarily for (1) virus-flouting, selfish, ignorance-rooting demands for special treatment during a pandemic and (2) demands for special privilege to engage in old-timey bigotry . . . be my guest.

    It's your funeral, clingers.

    Choose reason. Every time. Be an adult.

    Or, at least, please try.

    (Some reports credibly indicate Stevie wrote that song for Jeff -- as thanks for some studio work)

    1. I’ll say this again. I think there is a good argument that, under pre-Smith analysis, the state has a compelling interest in critical medical matters that can override individual rights.

      But a belief that other people are superstitious, irrational, losers, clingers, etc. is NOT a basis for denying or overriding their rights.

  7. Police v. Newark isn’t an absolute out. It instead gets one to the pre-Smith compelling interest test. It doesn’t give more protection than pre-Smith.

    And while a City’s interest in having its police maintain a uniform appearance (the issue in Police v. Newark) may not be compelling, the interest in vaccinations is a traditional compelling interest.

    I understand that, under Roe and Casey, the interest in pre-viable fetal life is not compelling, but the decision here doesn’t make a compelling interest analysis and doesn’t distinguish viable fetuses. And let’s see if the viability distinction survives Dobbs.

  8. Ikuta says the school authorities "treat...students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons"

    What's the specific policy on this? I don't see a link.

    1. We will all have to wait because the injunction and partial dissent are very short (scroll down in the link) and the court says, "Written dispositions explaining the panel members’ conclusions will follow shortly."

      1. "Could your vaccine policies be unconstitutional? Tune in at 11."

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