The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some people object to taking the COVID vaccine on the grounds that it was tested in part on cell lines from aborted fetuses (consider, for instance, in the recent San Diego case), and that their "faith prevents [them] from using any vaccines that depend on use of fetal cell lines at any stage of their development." I've seen some people objecting that this sort of complicity claim is too attenuated to count for legal purposes. After all, the argument goes, the claimant isn't being required to get an abortion, to perform an abortion, or even to consume a product that contained materials from aborted fetuses—only to consume a product that had been tested on cell lines tested using such fetuses.
Yet it's legally well-settled that such complicity claims do count for religious exemption purposes, so long as the objector sincerely believes that the complicity is sinful. When the connection becomes too attenuated is up to the objector's religious beliefs, not up to secular courts to decide; the objector might still lose, but that would have to be on other grounds. And I think that approach is fundamentally correct. Let me briefly explain why.
[1.] Federal and state law often creates what one might call "general religious exemption regimes"—legal rules under which the government must usually exempt religious objectors from various secular obligations, (a) so long as the obligation substantially burdens the objector's religious beliefs, (b) unless denying the objection is narrowly tailored to a compelling government interest.
- The federal Religious Freedom Restoration Act expressly provides this with regard to federal government action.
- State RFRAs in about twenty states do the same as to state and local government action.
- The federal Religious Land Use and Institutionalized Persons Act provides this with regard to state and local government action related to land use and, among others, prisoners.
- State courts in about a dozen states have read their state constitutional religious freedom provisions as requiring this with regard to state and local government action.
- From 1963 to 1990, the Court read the Free Exercise Clause as requiring this as to all federal, state, and local government action; it changed course in the Employment Division v. Smith case, but now it looks poised to flip back.
- For now, the Supreme Court has read the Free Exercise Clause as requiring this as to all federal, state, and local government action that has pretty much any secular exemptions that "prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way"—so long as the law has such secular exceptions, it has to create religious exceptions, too.
Now whether such general exemption regimes are a good idea (or a sound interpretation of the state and federal constitutions) is controversial. I have taken the view that the federal and state Free Exercise Clauses should not be read as providing general religious exemption regimes, though jurisdiction-by-jurisdiction RFRAs should be enacted (albeit with a less demanding legal standard for determining exemption claims than "narrowly tailored to a compelling government interest"). But for now let's set that aside, and assume that there is a religious exemption regime in play.
[2.] What then of complicity claims? Is it indeed a substantial burden on an objector who views abortion as sinful to require her to take vaccines that had been tested on aborted fetuses?
Under our individualistic law of religious exemptions, the question depends on what exactly the objector believes. If she merely thinks that it's religiously improper for her to get or perform an abortion, but her objections to the vaccine stem from nonreligious reasons, then the vaccine mandate doesn't substantially burden her religious belief.
But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.
True, people disagree about when complicity stops. Some people think that race discrimination itself is wrong and thus didn't want to do business in South Africa if they had to discriminate in hiring to do so. Others thought they shouldn't do business in South Africa even if they could do so without discriminating. Others thought they shouldn't do business with South African companies. Others may have thought they shouldn't buy any products made in South Africa. Where the connection becomes too attenuated and morally or religiously culpable complicity stops is a question on which reasonable people will differ. Likewise, there is apparently a substantial debate on whether it's ethical to use medical data from Nazi experiments on unwilling subjects, where different people likewise draw different lines.
For purposes of religious exemption regimes, the question isn't whether a judge or jury agrees with a person's claim that a law requires him to engage in behavior that is sinful—it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line regarding complicity; it is whether he sincerely believes that the complicity is sinful.
Thomas v. Review Board (1981), which the Court reaffirmed in Burwell v. Hobby Lobby Stores (2014), is the classic illustration of this principle. Eddie Thomas had been working at a machinery company and was transferred to a department that produced tank turrets. Thomas refused to work on such military production and was fired. Under the Court's Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion. The lower court had said that it wasn't, but the Court reversed (emphasis added):
[The Indiana Supreme Court noted] that Thomas admitted before the referee that he would not object to "working for United States Steel or Inland Steel … produc[ing] the raw product necessary for the production of any kind of tank … [because I] would not be a direct party to whoever they shipped it to [and] would not be … chargeable in … conscience …." The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.
Thomas wasn't, of course, being required to kill anyone using a tank, fire a tank gun, ride in a tank helping the gunner, or assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets—though not making steel that would go into a tank—was, he thought, itself sinful complicity with sin.
And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The "substantial burden" requirement didn't require that the connection be "substantial" enough in the secular legal system's understanding of complicity. (A burden might be insubstantial because it imposes too small a secular cost to count, not because outsiders to a religion think that a causal connection is too weak to count as sinful complicity.)
Likewise, certain abortion opponents draw a line: Taking vaccines that were tested using the products of what they see as murder is sinful complicity with sin; going to schools that have reopened only as a result of those vaccines being widely adopted is not. Perhaps some of them are lying, but so long as the judge (or, in some instances, a jury) concludes that they honestly believe this is the right line, the judge isn't supposed to further decide whether it is indeed the right line.
And this position should look especially sensible, I think, given how wide an array of judgments our own American legal system has on the subject of complicity.
If you help someone with the purpose of helping him commit his crimes, you're guilty of the crime itself as an accomplice. If you help someone, knowing that your actions are helping him commit the crime, you aren't an accomplice under the laws of most states—but you are under the laws of some states.
What's more, the rules differ for different kinds of conduct. For instance, informing a particular person how to make a bomb, knowing that he plans to make a bomb (even if you have no specific purpose to help him do so), is a crime under federal law. Likewise, knowingly providing assistance to a foreign terrorist organization is a crime even if you don't have the purpose of advancing the organization's terrorist goals, but are just trying to promote the organization's supposedly humanitarian wing or are trying to teach the organization's members about international law.
Knowing distribution and even possession of child pornography is banned, chiefly on the grounds that such distribution and possession tend to cause the making of child pornography by creating and sustaining a market for such material. The causal connection between possession of child pornography and the production of child pornography is quite indirect (though real). But the law criminalizes possession nonetheless, based on that connection.
And that's just the criminal law. If you know or have reason to know that your actions are materially helping someone infringe copyright, you are guilty of contributory copyright infringement. And in some situations, you can be vicariously liable for copyright infringement even if you weren't negligent—for instance, if a band performs a song in a bar that you own and it turns out that (despite their assurances to the contrary) they weren't licensed by the owner of the copyright in the song.
Beyond copyright law, people can be liable for negligently facilitating another's criminal conduct. Landlords can have their property seized if they negligently allowed it to be used for drug transactions. And the list could go on.
Given this widely varying array of judgments about complicity in a single secular legal system, it's not surprising that people would have still more varied judgments about religious obligation to avoid complicity. And it's also not surprising that people might feel that God's demands that they distance themselves from sin would be broader than Caesar's demands.
[3.] So what is a court to do when a religious exemption regime applies (item 1 above) and a person has a sincere religious objection to some law on the grounds that it involves complicity with sin (item 2 above)? Obviously, the person doesn't categorically win: A court would still have to ask if denying the exemption is narrowly tailored to a compelling government interest—which is to say (more or less) if granting the exemption would unavoidably substantially harm that interest. It may well be that some vaccination mandates pass strict scrutiny, because they serve a compelling interest in protecting people's lives, and because exemptions would indeed unavoidably cause some extra deaths.
It's just that this analysis is the same regardless of whether the objector's claim is based on complicity or based on something else (e.g., some Christian Scientists appear to believe that it is wrong to rely on medicine as opposed to prayer, and the official Christian Science position appears to be that this is up to individual believers). If you sincerely believe that complicity with sin is itself sinful—or, more broadly, complicitly with religiously improper behavior is itself religious improper—American religious exemptions law doesn't second-guess the reasonableness or directness of that complicity claim.