Religious exemptions could prove to be the latest legal battlefield of the pandemic, as Americans opposed to the coronavirus vaccines try to find ways around employer and government vaccination mandates.
Some evangelical pastors are reportedly providing religious exemption documents to members of their churches, and right-wing forums are sharing strategies to skirt vaccination requirements. Religious freedom groups are sending threatening letters to states, schools and employers and preparing legal challenges to fight vaccination mandates.
Only some federal agencies and states have made vaccinations mandatory for workers, and more private companies are doing or considering the same. But experts anticipate that religious liberty challenges will pick up as more mandates are put in place — especially when there is no national standard.
“There are some First Amendment implications here and there’s a patchwork of laws that could potentially be implicated by these mandates,” said James Sonne, a law professor at Stanford Law School and founding director of its Religious Liberty Clinic. “It's certainly something we’ll see getting worked out in the courts.”
The challenge for governments and institutions is balancing American civil liberties with a worsening public health crisis.
Experts say that the threshold for religious exemptions could come down to proving whether the person attempting to obtain one has “sincerely held beliefs” against getting vaccinated on religious grounds. They may even have to show a track record of opposition to receive an exemption.
Those challenging employer-created mandates cite Title VII of the Civil Rights Act, which requires employers to make reasonable efforts to accommodate employees, while government-created mandates are being challenged under the First Amendment. Both, however, bring up the question of whether a person’s religious beliefs are sincere.
Pope Francis went so far as to say that receiving the vaccine was 'the moral choice because it is about your life but also the lives of others.'
Thomas Berg, a self-described “strong supporter of religious exemptions” and a religious liberty advocate who teaches law at the University of St. Thomas, a Catholic institution in St. Paul, Minnesota, said he believes that there is a strong case to deny many of the religious claims and to test religious sincerity.
“In cases where you’ve got a lot of potential insincere claims — and I think there’s evidence that is what’s happening here in which people are raising religious objections when they’re motivated by fear of the vaccine or political opposition to it — testing sincerity makes sense,” he said. “We have to test sincerity or else we have to accept them all or deny them all, so I think the courts will provide room for testing that.”
One driver for testing sincerity is the fact that no major organized religion objects to the vaccines, and Roman Catholic and other Christian, Jewish and Muslim leaders have advised followers to get the shots. Pope Francis went so far as to say that getting vaccinated was “the moral choice because it is about your life but also the lives of others.”
Individually held beliefs, however, could provide some protections.
The challenge with religious exemptions
The Christian argument for religious exemptions follows two tracks typically: first, that the vaccine shots at some point in their production used aborted fetal cell lines. The second argument cites a Bible verse that claims that the human body is God’s temple of the Holy Spirit and argues that for that reason receiving a vaccine would be a sin.
Johnson & Johnson did use a replicated fetal cell line in the production of its vaccine, but Pfizer and Moderna did not. They did, however, use replicated fetal cell lines to test the effectiveness of their vaccines. Those cell lines, however, were isolated from two fetuses in 1973 and 1985 and then replicated numerous times over the ensuing decades. They are commonly used in the pharmaceutical and biotech industries to test and create medications.
Arthur Caplan, a bioethics professor at New York University Langone Medical Center, said that people who oppose the coronavirus on religious grounds should also oppose numerous medications and vaccines developed over the past 30 to 40 years.
“There’s a lot more drugs, vaccines and medicines you should not be taking and protesting if you’re really worried about these fetal cells being used,” Caplan said. “I don’t think most of this is sincere. I think it’s just a way to get out of having to take a vaccine.”
But there are many groups that are taking it seriously and giving individuals support and advice on ways to obtain a religious exemption or even challenge a vaccination mandate.
On its website, Liberty Counsel — an evangelical ministry that provides legal assistance in religious liberty cases — provides a 23-minute video guide that has been viewed more than 150,000 times on how to file a religious exemption. It, like other groups, also provides a handful of sample documents to file for an exemption.
Liberty Counsel is known for representing Kim Davis, a Kentucky county clerk whose refusal to issue marriage licenses to same-sex couples in 2015 led to a lawsuit. The group has also challenged the Affordable Care Act, attempted to reverse gay conversion therapy bans and supported lawsuits maintaining religious monuments and nativity scenes.
Since the start of the pandemic, the group has been dedicated to challenging Covid restrictions at places of worship, as well as mask mandates. It has shared misinformation on its social media accounts, podcasts and website alleging the vaccines are dangerous, and it has supported members of America’s Frontline Doctors — an anti-vaccination group whose founder stormed the U.S. Capitol on Jan. 6.
Over the past few months, Liberty Counsel has become one of the groups leading the charge on claiming religious exemptions to the growing number of vaccination mandates.
“Just in a few weeks, we’ve received over 10,000 people contacting us for help,” Mathew Staver, the group’s founder and director said. “It’s more than anything we’ve ever encountered before. We’re getting people calling. Some are very concerned and upset, some break down, because they are being forced on a very quick time frame to make a decision between getting one of the Covid shots and their jobs.”
How past cases held up
Last week, Liberty Counsel filed a lawsuit against Maine’s vaccination mandate, arguing it violates a worker’s right to object to the vaccines on religious grounds. The suit was filed on behalf of 2,000 unnamed Maine health care workers who objected to Maine's vaccination mandate for health care workers on the grounds that the state did not allow for a religious exemption.
"We will vigorously defend the requirement against this lawsuit and we are confident that it will be upheld," Maine Attorney General Aaron M. Frey said in a statement to NBC News. "For many years the state has required health care workers to be vaccinated against various communicable diseases and, to our knowledge, that requirement has never been challenged. The state has now simply added an additional disease — COVID-19 — to the list of ones for which health care workers must be vaccinated."
The statement added that federal courts have consistently upheld mandatory vaccination requirements.
Liberty Counsel has also sent letters to the states of New York and Washington, as well as United Airlines, which required its employees to be vaccinated. The letters threatened to sue the states and airline if they did not provide greater access to religious exemptions and accommodations.
Experts said some of their challenges have already been tested and pointed to past legal battles over vaccination mandates, such as those states created for children, nursing homes and hospitals.
Caplan, who was involved in developing some of the flu vaccination mandates that have become commonplace in hospitals, noted that states such as California, New York, Maine and Connecticut have entirely dropped religious exemptions for children.
“When brought to court, that was tested and it held up, so we already have a pattern of arguments,” Caplan said. “So now if your boss says you can’t come to work without a vaccine but you refuse to get one on religious grounds, employers don’t have to keep you on, they don’t have to hire you.”
Backlash to the latest push for religious exemptions could backfire, however.
Doug Opel, a bioethics and pediatrics professor at the University of Washington who has written about the challenges of religious exemptions and vaccination mandates, pointed out that arguing against and not allowing religious exemptions might do more harm than good.
Though there are certainly people who will attempt to falsely secure an exemption, he said he believed that only a small minority of the American population would likely try to obtain one. It might be better to allow religious exemptions to reduce the perception of coercion and allow the vaccination mandates to stand with fewer challenges, he said.
“A policy reason to have exemptions is to allow the very few people who want to opt out to opt out and then allow the mandate itself to stand and be acceptable and sustainable over time,” he said. “Even if a minority opt out, the vast majority will get vaccinated, and the mandate will have served its purpose of reducing transmission and disease.”