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Religion and the Law

Religious Exemption Regimes and Complicity in Sin

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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.

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  1. I thought the objections were because the Vaccine contained the enzyme "Lucifer-ase"?? How about that the aborted fetuses in question are disproportionately "Feti of Color"??

    1. I don't follow anti-vac raving closely, but I think that concerns about luciferase are less motivated by fear that it's somehow Satanic, and more by concerns that people who use the vaccine are being labeled to be detectable by some form of optical scanner, for nefarious purposes.

      As I say, raving, but secular raving.

    2. I've encountered objections to the vaccines because they are not vegan.

      There seems to be no end to the reasons people have to want to avoid the vaccine.

  2. For some of those that are pro life ( a small segment of the pro-life movement), any use of fetal tissue is a sin and for those it is a sincerely held religious belief.

    Whether that believe is rational, scientifically valid or good public policy, is separate from whether it is a sincerely held religous belief.

    1. For the atheists among us, imagine if the government required masks made by Chinese political prisoners, or Jews in concentration camps. Most would object and refuse to wear them.
      But of course, that's completely different.

      1. Not only is it completely different, other than that the word "masks" appears in both places, I'm having trouble seeing anything that makes it the same.

        1. Suppose that the US Government didn't just mandate basic masks, with many masks available from many sources, but a specific type of mask and that that type of mask was only available from Chinese suppliers that use Uyghur slave labor to make those masks.

          Do you wear the mandated mask or object?

          1. At that point the regulations would no longer be about fighting Covid so I’d probably ignore the rule and wear a different mask.

    2. Joe,
      The use of cells that are 50 years and far more generation remove from actual fetal tissue is of such remove from use of fetal tissue, that such attenuated sensitivity is simply not credible.
      Every person benefits in such highly attenuated ways from the deliberate taking of one human life by another. I find it hard to believe that a person could actually defend her insistence on such sensitivity to robust questioning.
      The claim of religious objection to COVID vaccines on these grounds is bogus and needs to be called out as such

      1. I am also bothered by the idea that an individual is reaching back 50 years for their objection. The fact is that the fetal cell lines in use could have been used in any number of biological or medical application. Unless this individual is scrupulous in checking, I find the objection to this particular vaccine to be selective.

        1. Were you bothered by people reaching back 30 years for objections to confirming Kavanaugh?

          1. Well, that cell line is still quite intact isn't it, with individual rights protected by the constitution.
            Unless one wishes to argue that He-La cells be given legal personhood....

          2. MatthewSlyfield : Were you bothered by people reaching back 30 years for objections to confirming Kavanaugh?

            Sure was. I thought his hackery leading the "investigation" into Vince Foster suicide was a far better reason. Special Counsel investigations have a poor reputation that is well-earned, but only one was a ludicrous farce from beginning to end: Kavanaugh's.

            No other one showed such contempt for the law as his. It never even pretended to be anything other than a partisan public relations show. It was ironic to see him whine about the distress of his family over a few days of hearings after he gleefully tormented Foster's family three & a half years.

            But from this very lack of character comes a glimmer of hope: Kavanaugh bought his SCOUS seat by being the crudest of political hacks - from his fake Foster investigation, to organizing the faux-Brooks Brothers Riot, to his bit part in the Right's loathsome exploitation of Teri Schiavo. I gotta believe the hack inside him will want to save the Right from their own extremism and hypocrisy - particularly right before mid-terms.

            Maybe there's a deciding vote to save Roe yet!

        2. Indeed, many pharmaceuticals are tested on cell lines. As the judge, I would question whether the person check the testing and approval process for every medication s/he takes. And tht is only the beginning. Almost all claims outside of well know "no meds" religions are just antivax bollix.

      2. Don - I didnt say the objection was rational or valid - Just stating that for those individuals, it can be a sincerely held religious belief.

        Likewise, there are quite a few individuals that have latched onto "their newly acquired sincerely held religious belief" . However there are definitely a small segment of the population that do have

        1. Joe,
          What I am telling you is that it is not a religious belief at all. It is an excuse that is not credible and is not believed.

      3. I agree Don, but there's a possibly different argument here.

        What if I say,

        "You're right, that's very attenuated. But, I don't want to help create an incentive for researchers to continue using those techniques. I really want them to look for other ways to develop vaccines in the future. It's not so much the sin fifty years ago that I'm concerned about. It;'s the future ones I encourage."

        1. Then I will question your consistency and the integrity of you assertion of belief and ask you why that is a religious belief rather than a political belief.

      4. Your skepticism is certainly understandable, but I don't think it's consistent to call out the sincerity of this belief to be bogus while totally accepting the sincerity of belief in an invisible sky wizard who both transcends the frailty of human ego, and yet demands to be worshiped as a prerequisite to be spared from an eternity of unending torture. If you can believe the latter, is belief in the former - or really anything at all - totally off the table?

        We can't use a secular system of rational plausibility to determine the sincerity of a religious belief in and of itself. Perhaps we could question sincerity if it isn't internally consistent with other practices - like if the person has used other products that were developed using embryonic stem cells. But even then, the person could claim to have received divine revelation this time around, and who are we to say that such a sincere belief is particularly implausible?

    3. I don't think it's sincere. If a pro-lifer lives like a hermit, assiduously avoids medical care that is based on fetal tissue research, and otherwise consistently practices self-denial over a long period of time, absolutely, give them the exemption.

      But 99% of these folks have no problem with tons of stuff that comes from fetal tissue research, only suddenly discovering their religious beliefs when not taking the COVID shot became a thing to do to own the libs. And those people should absolutely not get to ignore generally applicable rules the rest of us have to follow. Exemptions from the law are serious business, and should be reserved for the actual true believers, who are very rare.

      1. I have no objection to questioning their sincerity, but it has to be particularized to the individual claimant.

        How well known is it (to the general public) that all that other stuff derives from fetal tissue research?

        1. Not well known. So publicize it.

          Or grant the exemption on the condition that the applicant forswear all those products.

          1. I don't know if an internal consistency standard is an accurate way of objectively determining the sincerity of religious beliefs. I can find a lot of what I see to be logical contradictions in the beliefs of many individuals, but is that convincing evidence that the claimed beliefs themselves are insincere?

            Maybe they just know through some kind of divine revelation how to successfully navigate what might seem like rational inconsistencies to non-believers.

      2. Yup, Dial, that is what it would take for the claim to be credible. And even then I would not believe it from a Buddhist ascetic monk.

    4. "...any use of fetal tissue is a sin and for those it is a sincerely held religious belief."
      Then this segment of people had better start digging deeply into all manner of health care issues of both drug development as well as the unclean hands of potential healthcare providers. Some cell lines possibly have been derived from aborted fetuses, others from fetuses who suffered untimely natural demise, and other lines come from the cervixes of long deceased patients (He-La cells). Lots of drugs, vaccines included, have at some point been in the same room as cell lines.
      And how many health care providers might have 'unclean hands', having in some way participated in drug development, or patient care relating to abortion.
      Their religious exemption would ring true if they were consistent, and treated all fetal cells, and all unclean hands the same. But it is simply pretense for most who only now, and only for covid vaccines, concern themselves with penumbra of fetal tissue.

  3. I'd mention that such reasoning isn't exclusively religious in character. There's an ongoing debate in the medical community about using the results of Nazi medical research, even though it's unquestionably valid research, and no lives would be saved by refusing to use it, quite the contrary.

    1. So you have a cite for not using the *results* of that research? Not a text or source, but advocating that we ignore the results?

        1. Interesting, seems though as if everyone who opined in the article said she was right to use it in that case.

          1. There's still people who won't use it, and notice that it isn't used in teaching, though that would turn out better doctors.

    2. Considering how much the government is willing to bend over backwards for the religious demands of prisoners it is always amusing how they are quick to dismiss concerns raised by those professing to be Christian.

      1. The government, generally speaking, does not "bend over backwards" for the religious demands of prisoners. Inmates constantly sue over refusal to do that (I've been involved in many such cases), and, since the government's objection is all-too-frequently ill-founded, they sometimes win. The trend you think you see is an artifact of the occasional inmate victory being news, not of the government's general treatment of prisoner religious claims. And they are more likely to be news precisely because it is non-Christian claims that most often get the back of the government's hand and, therefore, the occasional inmate victory is disproportionately likely to be non-Christian.

      2. Considering how much the government is willing to bend over backwards for the religious demands of prisoners

        I mean, that's literally 180° opposite of true. The government has to be dragged kicking and screaming into making the smallest of accommodations, even if there is no conceivable justification for refusing beyond FYTW.

        1. Apparently FourteenFour was never told that "Man bites dog" is a news story, but "Dog bites man" isn't.

    3. I don't think anyone claims the reasoning itself is exclusively religious. Vegans make similar moral arguments without invoking the divine.

      I can definitely see the argument that there's no moral justification for legally accommodating sincere religious beliefs over sincere secular beliefs.

      I guess in my mind any law that doesn't have a compelling enough state interest to force someone to compromise a sincerely held religious belief probably doesn't have a compelling enough state interest to force anyone to compromise any belief.

  4. The problem is the word 'substantial' ends up doing no work. "This insurance mandate requires me to provide coverage for abortion for my employees, but that substantially burdens my religion." "OK, well, if that's the case just fill out this form and send it in and the government will direct a third party insurer to provide the employee coverage." "Sorry, that's just as substantial a burden!"

    It's like as if the reasonable requirement in the 4th Amendment or self defense law was an entirely subjective test...

    1. Substantial covers any action you are legally required or forbidden from doing. An example of a burden that is not substantial comes from Bowen v. Roy (1986) where the government's action of using your Social Security number instead of your name robs the spirit of the person.

      1. Interesting looking case, I'll give it a read. Thanks.

      2. I can think of hypos that would not be substantial burdens. A neutral tariff imposed by the federal government causes the price of some religious object that is typically imported to rise by 5%. They close the road on the way to your church to do some utility work, forcing you to take a 20 minute detour to get to worship services. Sunday blue laws, which have a disparate impact on sabbath-observant Jews who can't shop on Saturdays.

        1. Sunday blue laws are straight up putting religion into laws and that should be an obvious 1A violation.

    2. Wrong. And (unsurprisingly) already addressed in the article above. 'Substantial' still does a lot of work - just not at the point in the process that you are alleging. 'X will earn me eternal damnation' is a very substantial burden regardless of how much work is involved in X.

      To directly address your strawman, the burden was not who paid but that they had to have any complicity in the payment process at all. They viewed even filling out the form as an endorsement of abortion. I (and probably you) consider that belief irrational but that is irrelevant because it was undisputed that their belief was sincerely held.

      1. 'X will earn me eternal damnation' is a very substantial burden regardless of how much work is involved in X.

        At some point, however, religious demands have to accommodate the secular state, and suffer the pains of religious obligation privately. The religion belongs to the person making the demand. It is not the state's religion, and it damned well better not become the state's religion. Maintenance of a secular, a-religious state is itself a compelling state interest.

        Where to draw the line? I don't know. But way this side of blocking practical enforcement of laws to prevent contagion from killing people, spreading, and killing more people. Any demand that enforcement of every exception be uniform, and applied alike to the religious, whether they qualify otherwise or not, amounts under EV's individualistic principles to a demand for legal tailoring to suit every would-be enforcement action. That is a bar to practical enforcement, and thus too extreme.

        1. At some point, however, religious demands have to accommodate the secular state, and suffer the pains of religious obligation privately.

          Sure, but as Prof. Volokh pointed out, that comes at the next step, where it is determined whether the legal requirement conflicting with the religious demand is narrowly tailored to a compelling government interest.

  5. So are these objections the same the felony murder laws?
    How is being in the same car as a murderer murder if using aborted cell lines is not accessory to abortion?
    Compare and contrast.

    1. The abortion doesn't happen because of the cell lines, the cell lines are the result of already completed abortions. Participation in a murder (for example driving the killer to the scene and away) is a part of the endeavor.

      1. Here's the latest Catholic doctrine:

        "To summarize, it must be confirmed that:

        there is a grave responsibility to use alternative vaccines and to make a conscientious objection with regard to those which have moral problems;
        as regards the vaccines without an alternative, the need to contest so that others may be prepared must be reaffirmed, as should be the lawfulness of using the former in the meantime insomuch as is necessary in order to avoid a serious risk not only for one's own children but also, and perhaps more specifically, for the health conditions of the population as a whole - especially for pregnant women;
        the lawfulness of the use of these vaccines should not be misinterpreted as a declaration of the lawfulness of their production, marketing and use, but is to be understood as being a passive material cooperation and, in its mildest and remotest sense, also active, morally justified as an extrema ratio due to the necessity to provide for the good of one's children and of the people who come in contact with the children (pregnant women);
        such cooperation occurs in a context of moral coercion of the conscience of parents, who are forced to choose to act against their conscience or otherwise, to put the health of their children and of the population as a whole at risk. This is an unjust alternative choice, which must be eliminated as soon as possible.
        "

          1. That's... literally what it says.

            1) If there's an alternative, morally sourced vaccine, you must use it.
            2) If there isn't an alternative, morally sourced vaccine, you can use it, and should under some circumstances.
            3) Keep in mind that it's not morally sourced, and push for alternatives, and never let people forget where it came from.

            1. From what I understand about the legal standard, mostly thanks to Eugene, the official stance of the Catholic church can't be used as a determining factor for sincerity amongst individual catholics.

  6. Fine, so I object to paying taxes because some of them go to hurricane relief for churches that were destroyed by hurricanes. To me, rebuilding churches is complicity in sin (or at least foolishness). So, I'm going to stop paying taxes. What now?

    The elephant in the room is that these religious exemption arguments only work -- at least from the standpoint of conservatives -- if liberals don't adopt them and act on them as well. Just as soon as some liberal somewhere stands up and says "I'm taking an exemption because (fill in liberal talking point) it becomes apparent just how unworkable it would be if applied fairly and evenly across the board. Conservatives are counting on having a monopoly on using exemptions. Just as they count on Christianity continuing to be the dominant religion forever and a day whenever they try to permeate the church-state barrier.

    1. While being a substantial burden on religious exercise, not paying Social Security taxes was rejected during the Sherbet era (United States v Lee) because that government met its compelling interest burden.

      1. And the government doesn't have a compelling interest in preventing a never-ending pandemic?

        1. Could be. But that determination is not relevant to Eugene's point.

          1. What makes it relevant to EV's point is the individualistic standard for accommodating religious claims. Couple that with the doctrine that if any exceptions are granted, religious exceptions must be granted too, and what you get is a practical demand for legal tailoring to accommodate every objection by anyone. Which makes enforcement impossible.

        2. If it's "never ending" then the government cannot prevent it, right?

          (Fun fact. The black plague that devastated much of Eurasia in the 13th century never ended. It crops up from time to time. But, of course, that part of the world recovered from it and life went on.)

        3. The compelling interest of course has to be something real and achievable. At this point in the game, it's crystal-clear to all but those still stuck in the first stage of grief that "preventing a never-ending pandemic" denies reality in at least two dimensions.

          1. LOB, the law will never totally eradicate all murder. There will always be murders, no matter what the law says. And nobody is delusional enough to think otherwise. So shall we repeal laws against murder because eradicating murder isn't achievable? Where is this idea coming from that we can't have a policy unless it fixes a problem 100%?

            1. Where is this idea coming from that we can't have a policy unless it fixes a problem 100%?

              First, you keep throwing around this perfection straw man, when reality is that as global vaccine efficacy data continues to mature it's difficult to show much incremental benefit at all. Countries such as Israel and the UK that pushed early and hard for mass inoculation are still having the same uncontrolled waves as everyone else. This is not surprising to anyone who didn't besot themselves on the hubris-laced kool-aid that all of a sudden we would magically succeed in developing a vaccine for the latest iteration of what we've known all our lives as the common cold.

              Second, murder by definition takes a life, so it doesn't take a whole lot of handwaving to justify preventing murder as a compelling government interest. When you're talking about a pea soup of intersecting probabilities, just saying "well, this will decrease probability X by some measure" -- even if true -- doesn't cut it.

              1. But sometimes decreasing probability X by some measure is the best one can hope for.

                There is no magic bullet that will make Covid go away and restore things to their pre-Covid condition. Everyone here, on both sides of the mandate issue, gets that. The question is will mandates leave us better off. The professional scientists seem to think it will; until I have a good reason not to, I'm willing to assume they know more about it than you or I do.

                1. But sometimes decreasing probability X by some measure is the best one can hope for.

                  Be that as it may, the fact that a result is "the best one can hope for" is not dispositive of whether that result constitutes a compelling governmental interest.

                  The question is will mandates leave us better off.

                  Again, even granting the benefit of the doubt that "better off" can be objectively scoped and measured, if "leaving us better off" is all that's needed to justify a compelling governmental interest, we're about to embark on a slippery slope like none other. Put differently, you may as well drop the facade and snip the word "compelling" from the test.

        4. When the government grants many, arbitrary and/or conflicting exceptions to the mandate, it calls into question the sincerity of their alleged "compelling interest". When their policy is uniformly enforced (see, for example, yesterday's article about the San Diego schools policy), their claims of "compelling interest" are more credible.

          1. Nothing says compelling state interest like the state exempting many of its own from the mandate.

          2. And that's why the most-favored nation doctrine (strict scrutiny applies to religious conduct when there is any exception to "comparable" secular conduct) should be rejected. Under that doctrine, the secular exception almost guarantees that the compelling interest will be rejected which goes much farther than the Sherbert era.

            1. I'll disagree, but on a slightly different basis. Scheme for secular exemptions shouldn't go to compelling interest, but they should go to the "generally applicable" requirement from Smith.

              Personally, I think that "generally applicable law" should be defined as narrowly as possible and strictly enforced. A law with lots of secular exemption sis NOT "generally applicable".

              1. Assuming you are right that the law is not generally applicable, are you saying the state can still successfully claim they have a compelling interest in spite of the secular exemptions?

              2. As to whether a law with secular exemptions is generally applicable, we have from Tandon it isn't if the exemptions cover comparable secular conduct, and we have from Matthew it isn't if there are lots of secular exemptions. We have seen in various cases since Tandon the difficulty in assessing whether the secular conduct is comparable (*). I think the same would apply to lots of exemptions.

                (*) I agree with Eugene's conclusion from his Fulton amicus that judging whether secular conduct is comparable requires normative and practical judgments that courts have no principled way to determine. Apart from targeting religion, those judgements properly belong with the elected branches.

                1. If the law is not generally applicable, Smith does not apply and any burden of free exercise must be evaluated using strict scrutiny.

                  Under my conception of a narrow and strict evaluation of "generally applicable" the comparability of various exceptions is irrelevant.

                  1. So, any exception categorically makes the law not generally applicable? If so, you have sub silentio reversed Smith (almost all laws have some exceptions). Moreover, you didn't address my question whether exceptions undermine the state's claim of a compelling interest. If they do, then any secular exception would categorically require religious exemptions, a horrible result not supported by anything in precedent.

                    1. "So, any exception categorically makes the law not generally applicable?"

                      Not necessarily.

                      The nature of exemptions does matter in a way, but comparibility between different exemptions is irrelevant.

                      Exemptions based on what (like murder and self defense) are acceptable unless there are a lot of them.

                      Exemptions based on who is covered are not acceptable even if there is only one (prohibiting x but then excluding law enforcement from the prohibition).

                    2. "Moreover, you didn't address my question whether exceptions undermine the state's claim of a compelling interest."

                      Yes I did.

                      "Scheme for secular exemptions shouldn't go to compelling interest"

      2. And I'll bet a week's pay that if the social security case went back to the current Supreme Court as a question of first impression, there would be at least three votes if not more that people don't have to pay social security taxes if it's against their religion.

    2. Like this?

      "Satanists hold bodily autonomy and science sacrosanct, he said, and abortion 'rituals' are an important part of those beliefs."

      https://fortune.com/2021/09/03/why-satanists-may-be-the-last-hope-to-take-down-texass-abortion-bill/

    3. What leads you to believe thst everyone who takes a religious exemption is politically conservative? For example, in 2003, the forst Monday in October, the traditional first day of the Supreme Court session, fell on Yom Kippur. To a commodate Justice Ruth Bader Ginsburg,, the Supreme Court moved its opening day that year to the next day.

      Could you explain what about making that request proves thst Justice Ginsburg was in fact politically conservative? Virtually everything else she did indicates otherwise.

    4. "liberals don't adopt them and act on them as well."

      Fortunately most libs know their tongues will cleave to their mouths if they do that.

    5. Krychek_2: As I discussed in my post on A Brief Political Political History of Religious Exemptions post, religious exemption regimes were originally a largely liberal invention, with Justice Brennan being the main architect. (The particular claimants in the earliest cases weren't discernably political by today's standards, mostly being Sabbatarians.)

      1. Eugene, true, but that was then and this is now. At this point in history, religious objections are mostly made by conservatives who would largely be horrified by liberals being afforded the same consideration.

  7. Ok. But most of them are lying. It is not a sincerely help religious belief it is just appears within the last year and is specific to the covid vaccine. In the other cases the people has well established beliefs.

    1. And that is a valid issue for the court to individually investigate and determine. Insincerely held beliefs deserve no protection at all. But the fact that some (maybe even most) of those people are lying is not a valid reason to deny the few who do hold those beliefs sincerely.

  8. And paying taxes? My impression is that religious objections to paying tax for war purposes, e.g., are rejected.

    1. Yeah, given all the things taxes get spent on, it's hard for me to imagine anyone of any political persuasion not finding something to object to.

  9. Complicity never ends, as long as the belief in complicity is consistent with the person's previously determined political or religious view.

    And most of us will support the standard of 'sincere religious beliefs' once an objective measurement of sincerity is put forth. Until then the standard is garbage, and it is my sincere religious belief in the truth of this.

    1. Can you elaborate, please, what you mean by "an objective measurement of sincerity"?

      1. How about evidence of previous insistence on identical religious scruple, at the cost of personal inconvenience, at a time prior to the present case?

        But note, that will not by itself fix RFRA overreach. To do that you have to also get rid of legal doctrines which empower religious exceptions as requirements, before exceptions on other bases can be allowed. There has to be room for law enforcement that does not require personal tailoring of every law, case-by-case—but individualized accommodation of religious scruple imposes that, and as a practical matter, generalizes it. What the religious may claim sincerely, anyone else can claim for any reason.

        1. That would be strong supporting evidence. (It is in fact the exact evidence I relied on when I was the investing officer in a conscientious objector claim during the first Gulf War.) It is not, however, objective evidence. Assessing whether the prior behavior was consistent and the degree of personal inconvenience is still quite subjective.

          1. Darned squirrels - that should have been "investigating officer".

      2. An "objective measure" for religion might be hard, but I would start with a look at consistency of the individual's behavior with respect to their religious beliefs. Do they attend services, do they support a religious organization financially, do they follow other tenets of the religion? Another question is are they shopping for a spiritual leader that agree with them. The world-wide Catholic Church supports vaccination, are some people looking for a bishop or priest that will validate their wishes. Finally, I would ask why they would pursue an exemption rather than look for another job? Is there objection large enough for them that they should pursue alternate work?

        With regard to work, I do think the employer mandate is too broad, but I also think there are jobs where being vaccinated is a necessity or very nearly so. So, if you don't want to be vaccinated and are in a job where vaccination makes sense, you should not seek an exemption, you should look for a different job.

        1. This, on the other hand, is not a valid approach because it reduces religious liberty to belief in the precise doctrines of mainstream religions. The US's approach to religious liberty is (and should be) highly individualistic. Your religious beliefs are equally sincere and equally valid whether or not you agree with everything said by the Pope.

          1. That's OK, but if you do claim to be an adherent of a mainstream religion, or did before the vaccine came along, it goes to the consistency issue.

            If you profess yourself a devout Roman Catholic, attend mass regularly, etc., and accept the Vatican's teaching on a wide variety of issues, it seems reasonable to suspect that it is not your faith that prevents you from being vaccinated.

            1. Under the US's highly individualistic definition of religion, that won't fly. Consider the many people who consider themselves devout Catholics even though they disobey the church on the issue of birth control. That inconsistency in no way robs them of their right to protection for all the other aspects of their religious beliefs. "Sincerely held" must be a personal measurement. It is not and cannot be tied to the doctrine of a church.

              1. "Sincerely held" is only a measure of mental incapacity in this case. It has nothing to do with religion.

      3. Certainly

        The standard for many religious exemptions to laws and regulations and social norms revolves around the concept of the individual requesting special treatment as having a 'sincere religious belief' about the issue and thus needs an exemption.

        But this presupposes that there are 'insincere religious beliefs', that some individuals who would claim a religious exemption would be doing so for policy or political preferences and hiding behind the religious exemption. That is, if a sincere religious belief is to be the standard, then there must be some who have an insincere relgious belief even though they profess to have a sincere religious belief.

        So unless we somehow have a fairly reliable unbiased method to separate those who have sincere beliefs from those who profess sincere beliefs but do not have them and are simply using that loophole, the concept of an exemption limited to those with a sincere belief is meaningless. And I know of no way to determine whether or not a belief is sincere or subtrefuge. So the standard of a sincere religious belief logically defaults to a standard of "anyone who wants an exemption can have one" if exemptions are available for sincere religious beliefs.

        As a further note, we also need to determine that even if there are sincere religious beliefs, are we willing to accept those as determinative and governing? If one looks at the judicial history of racial segregation and prohibitions against inter-racial marriage, one would find a large number of judicial opinions grounded in religious doctrine, which one must admit is sincerely held. This is the quote from the state case, upheld by the highest court in Virginia that ultimately led to the Supreme Court case in Loving.

        "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix"

        It is clear that the ban on inter-racial marriage was rooted in sincerely held religious beliefs. Yet we as a society rejected that standard in 1967 and we do so today.

        1. In your deliberately offensive example, if someone has a sincerely held religious belief against inter-racial marriage - why would they be getting married to someone outside their race then objecting to it?

          Oh, wait, you're now trying a bait-and-switch from sincerely held religious beliefs about your own behavior to beliefs controlling the actions of others, in order to make it sound bad.

          Well, you certainly made someone sound bad, but it wasn't the people who claim to have sincere religious beliefs.

    2. Further, can you explain why all the current legal processes which depend on determinations of the sincerity of beliefs (the military's conscientious objector program, the distinction between manslaughter and murder, etc) are workable but that this one requires a special "objective measure of sincerity"?

      1. That is easy, Rossami. There is no broad motivation to put yourself into the present categories you mention. They come with disincentives of their own. But exemption from a vaccine mandate empowers free riding, social rewards in some circles, and much-sought-after opportunities to own the libs.

        1. You think there's no broad motivation to putting yourself into a category that doesn't have to go into an active combat zone? You don't think there's a broad motivation to put yourself into a category that will dramatically drop the maximum possible penalty for your crime? You seriously think there are any disincentives to making those claims? Either you're not reading what I actually wrote or you're being disingenuous in your reply.

          1. The situation with respect to 'sincere' religious objections to mask and vaccine mandates differs from situations such as conscientous objection status because of third party or external effects.

            If a person objects to serving in a killing capacity in the military, there are two acceptable alternatives. The person can be excused from service (which I do not endorse) or they can be assigned to humanitarian service which works to preserve lives, not destroy them, (which I would endorse). Either way no one else is endangered or has their lives placed in deadly peril

            But objections to vaccines, for example, endangers others, often children as we have seen by the revolt against hooping cough vaccinations. So the standard for allowing an exemption in the case of Covid-19 vaccination has be to much more strict, because the person who does not take the vaccine creates a life threatening situation for their fellow countrymen/women. And added to the fact that anti-vaccination as a religious tenet is an
            interpreted position as opposed to a direct commandment (no Jesus and Moses and other founders of western religions did not preach against vaccines) historically this nation has ruled that the health and welfare of the nation is more important.

            1. At many points in history, "failing to do your duty to your country" was considered an act of reckless endangerment of your fellow countrymen. In other words, dodging the draft did put your fellow citizens in deadly peril. This was especially so during sieges when "the enemy is at the gates". The vaccine situation is not nearly as distinguishable as you're trying to make it.

              Regardless, that's not the point. You said above that determining whether belief are sincere or insincere is impossible. I've given you several counter-examples where the legal system regularly addresses the sincerity of beliefs. You have so far failed to answer the follow-up question of why those successes should be ignored in favor of your claim that insincerity is undetectable. (Note that the ability to determine sincerity has no dependency on the specific belief alleged to be held.)

              1. An old joke answers you.

                "Sincerity is the key to success. When you can fake that you have it made"

                1. That doesn't answer it at all.

                  1. In litigation courts do have to address the issue of 'sincerity'. That does not mean there is a definitive, objective, quantitative standard. It justr means the court made a decision in a specific case.

                    But if you can give us a measureable standard that can be applied universally, well, let's hear it. If not, . . . .

                    1. You are dodging the issue. No, I can't give you a universal, objective, measurable standard for sincerity. Despite that, the legal system survives and measures sincerity quite well in many different contexts. You are the one claiming that, despite all that evidence, we somehow can no longer survive without such a standard. So put up or shut up. Why is it necessary in this context but not in those others?

          2. Rossami, the disincentives to making those claims have to do with conduct a person can choose to avoid entirely making an unwanted choice. Sometimes, maybe quite often, that conduct would be illegal or otherwise penalized, but for those who can get away with it, the alternative of life without complications is far superior. Thus, persons who do find themselves making the kinds of choices you mention have either shown a degree of principled conformity, or else they have been trapped despite their best efforts to evade.

            No such demonstration or entrapment attends falsely making a freely available claim of religious scruple, despite lack of any motive but an ulterior one.

  10. Anybody claiming "it was tested on fetal cells" should simply be rejected on the grounds of it not being a sincerely held belief unless they can establish they abstain from nearly all OTC meds, which have also been tested in such a fashion.

  11. I think in looking at other people’s complicity claims, it can be useful, although not dispositive, to substitute something you uourself would regard as dispositive.

    For example, suppose you knew a drug had been tested on slaves. For example, consider a contraceptive tested by raping female sex slaves and then seeing if they get pregnant.

    Would you buy it? You yourself aren’t raping anybody if you buy and use the product. No woman was raped in the manufacture of the specific product you yourself would buy and use. But would you consider the way it was tested to be so far removed from anything you yourself would do that you could buy and use it without at least hesitating? Would you consider it completely irrational for someone to have a problem with it?

    1. Sorry, something you yourself would regard as problematic.

      1. Or you could use a non-invented but similar hypo: cosmetics tested on animals. The particular tube of lip gloss you pick up off the shelf wasn't tested on animals, but when developing that brand of lip gloss in the first place, the manufacturer might have done just that. That bothers some people's consciences greatly.

  12. Everything is attenuated with everything else. Part of living in the world. I hope one day that people of all political stripes understand that. This holds if you protest a development because 300 years ago it was once a African American graveyard, it holds if you refuse to get vaccinated because it was tested with cells that 40 years ago were abortion derived.

    I might be alone in this, but I think that the "fruit of the poisonous tree" doctrine is stupid for much the same reason.

    I would argue that if one actually studies Catholicism, one cannot believe that attenuation is sufficient to reject performing an action. People make fun of confession ... but that is the point of it! Sins do not live forever! The whole point of Christianity is that one can be freed of their sins.

    Its a rejection of Jewish law, where there are lists of rules because actions were "tainted" with sin and therefore one cannot be associated with it. An explicit rejection. Actions are sinful because they are. Getting a vaccine is not one of those actions.

    We have designed around the problem of using abortion derived cells. I know people in the biotech space who think this research is useless and people should stop being "anti-women" and just use the abortion cells ... I disagree! I support that research, I think it is useful, I think people who are pro-life shouldn't be forced to use something they fundamentally disagree with when other options are available, and people who wish to force others to use abortion derived products because they can't conceive of people having different views ... are stupid. And potentially malicious.

    But come on. There isn't a religious basis for refusing the vaccine. Be real, you refuse the vaccine and then invent a religious basis around it. Christianity doesn't actually say what these people says it says, and even if you have some warped view of it ... what about the rest of modern medicine? What about the things today derived from slavery? I suppose anti-vaxxers also supports CRT, which makes very similar arguments. Come on.

    1. Prof. Volokh addresses this in his "individualistic law of religious exemptions" link.

      Basically, it comes down to individual belief and it doesn't matter if the belief go against the orthodox view, or a particular sect's view, etc.

      It's simply the individual's view.

      1. Aye,
        to call an individual's unique, unstructured belief a religion is nonsense. It is nay-saying writ large.

    2. "There isn't a religious basis for refusing the vaccine."

      Be real, standing precedent on religious exercises cases say you don't get to make that decision for anyone other than yourself.

      1. Do you know of a basis that isnt wholly made up jus because you don't want to get vaccinated? Because the abortion one certainly is made up, unless the patient in question denies all medical care.

        1. Just because you don't like the justification they proffer or like where they drew the line, you don't get to say it's wholly made up just because they don't want to get vaccinated without specific evidence (particular to the specific claimant) to that effect.

  13. I'm sure all these people with a religious exemption for the vaccines will also refuse monoclonal antibody treatment when they do contract Covid. Oh, wait, their consciences will probably have a different religious awakening at that point.

  14. "there is apparently a substantial debate on whether it's ethical to use medical data from Nazi experiments on unwilling subjects"

    I'm not aware of any scientist who uses medical data from the Nazi torture "experiments" ... and I would consider it unethical to use it. It's not that the data isn't useful - it represents work that no one could carry out today and provided insight into human behavior - it's that one categorically cannot gain any benefit from unethically attained research, lest we inadvertently incentivize the behavior.

    A more interesting (and less extreme) version of this is doing research on (illegally) hacked data, or Wikileaks-style data.
    In this case, though, the data was stolen from someone who (purportedly) was acting unethically against the interest of the public ... and I think that this a different situation (if the unethical behavior can be demonstrated after the fact).
    is

    1. "I'm not aware of any scientist who uses medical data from the Nazi torture "experiments" ... and I would consider it unethical to use it. It's not that the data isn't useful - it represents work that no one could carry out today and provided insight into human behavior - it's that one categorically cannot gain any benefit from unethically attained research, lest we inadvertently incentivize the behavior."

      This is just false. Heisenburg was a Nazi. We still use the Uncertainty Principle. And we also use HeLa cells, though people say thats unethical (I disagree and think those people are idiots, but *shrugs*). We use the result of the Stanford Prison experiment. People do use Nazi data ...

      1. The only thing unethical about the HeLa cell line is that she didn't get asked, or get a cut of the profits. But that's more or less SOP in the medical field.

        Your Heisenburg example is just irrelevant, not derived from anything unethical A better example would be the Dauchau hypothermia studies. And, yes, some people use the results, some refuse.

  15. This reminds me of arguments over GMO food. The government has decreed that food is non-GMO if the part that goes into your mouth does not contain transgenic DNA. I know somebody who worked on technology to make food ingredients using gene-hacked bacteria in fermenters. Non-GMO per USDA rules as long as they filter out the bacteria before serving. But good luck getting certification from a private agency saying the food is hippie farmer organic as opposed to big corporation lobbyist organic.

  16. I would like to see who comes out victorious in a case that pits one party's religious beliefs against another party's beliefs.

    For example, a private, closely-held, for-profit organization requires all employees to be vaccinated. The state passes a law that requires all private companies to provide a religious exemption to their vaccine mandates. The company sues, claiming that their religious beliefs compel them to require the vaccine as a means of protecting their employees health and the health of the community, perhaps like a shepherd protecting his flock.

    If the company prevails then it would get an exemption from the state law, and thus be allowed to require it's employees to be vaccinated. BUT, one employee states that this requirement infringes on their religious belief, which compels them to refuse the vaccine. The employee then goes to court wreaking an exemption from the exemption that the private company received.

    Which parties sincerely held religious beliefs prevail when they are in conflict with each other? Or is it just exemptions from exemptions from exemptions......

    1. Good question, I think.

      1. I disagree. The rules regarding free exercise (both constitutional and RFRA, etc.) are restrictions on government action. In this scenario, it seems clear that the company should win - the state can't restrict the company's owners from running their company in accordance with their religious beliefs (assuming of course, arguendo, that strict scrutiny cannot be overcome). The employee's religious objection to vaccination is being challenged by the employer, not the state; he/she can try to find another job. Now this might be a legal issue in certain jurisdictions that have robust anti-religious-discrimination labor statutes, but that's an entirely different area of law and not part of the same discussion.

    2. The equating of mere beliefs with religion is sophistry for the sake of convenience.

  17. Libs hate religious exemptions because they believe at best that religion is a quaint thing you do one day on the weekend and has no impact in ho you live.

    1. Actually, I think it's because religion is one of the few things that will cause significant numbers of people to refuse to do what the government demands, and liberals are seriously into capturing government, and using it to force people to act according to the liberals' convictions instead of their own.

      1. More conspiratorial thinking, combined with accusations of bad faith.

        Liberals are in general less religious than conservatives, therefore less inclined to think religious belief should be extensively privileged.

        And I think conservatives, especially conservative Christians, are also often guilty of disdain for flavors other than their preferred version.

        1. Disaffected, superstitious, defeated, delusional, antisocial conservatives are among my favorite culture war casualties.

          How much longer they (and their intolerant, ignorant, archaic thinking) will remain relevant in modern, improving America is a tough call -- will it be five years? ten? maybe twenty?

  18. Choose reason. Every time.

    Choose reason. Every time. Especially over sacred ignorance or dogmatic intolerance.

    Choose reason Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for ignorance, bigotry, gullibility, backwardness. By adulthood -- this includes ostensible adulthood -- it is no excuse, not even in the most desolate, left-behind backwater one might find.

    Choose reason. Every time. And education, tolerance, progress, science, modernity, freedom, and inclusiveness. Avoid superstition, ignorance, bigotry, insularity, authoritarianism, dogma, backwardness, and pining for 'good old days' that never existed. Not 75 years ago. Not 175 years ago. Not 2,000 years ago. Not ever, except in childish fairy tales.

    Choose reason. Every time. Be an adult.

    Or, at least, please try.

    Thank you.

  19. It seems that there is a market need for cell lines sourced from other than abortions.
    There are spontaneous abortions plenty, each with medical documentation of fetal demise and parents who wanted healthy live babies instead of fetal demise. And each baby is born with a placenta, average about 1.5 pounds, all of which is.... fetal tissue. Most of which becomes medical waste, unless the parents want it to be freeze dried and chopped up and put into capsules to be consumed by the mother (be careful what you consume in my sister-in-law's kitchen.)
    No cell lines in my lab, but if I had been doing work with cell lines and had the equipment and expertise, then providing abortion free provenance cell lines would have been a nice money maker on the side.

    1. And yet the two cell lines in question were both sourced, not just from abortions, but really questionable ones. Though no end of abortions were available that were perfectly justifiable even from a pro-life perspective. Curious, that. Was there a preference for cell lines from unquestionably healthy fetuses?

      Anyway, my own perspective is that the need for religious accommodations is a product of how generally oppressed we are to begin with. Were we meaningfully free, nobody would NEED religious accommodations, because any accommodation it would make the least sense to grant for religious reasons would be available for secular, as well.

      1. WTF is a "really questionable" abortion, and where on earth are you making up your facts from?

        1. "WTF is a "really questionable" abortion"

          By questionable, I mean not medically necessary, purely elective.

          Sources vary. Some say the lines used to develop/manufacture the Covid vaccines were MRC-5 and WI-38. Others say PER.C6 and HEK 293.

          All but the last were produced from entirely elective abortions, and HEK 293 probably was, too.

          As there's no shortage of medically necessary abortions, I'm wondering why all these cell lines seem to derive from elective abortions. It seems they're considered preferable because they're almost guaranteed to be healthy.

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