Religious Exemptions From Vaccine Mandate
What malarkey is this?
The NYT religion, faith, and values reporter Ruth Graham: “Vaccine Resisters Seek Religious Exemptions. But What Counts as Religious?”
Major religious traditions, denominations and institutions are essentially unanimous in their support of the vaccines against Covid-19. But as more employers across the country begin requiring Covid vaccinations for workers, they are butting up against the nation’s sizable population of vaccine holdouts who nonetheless see their resistance in religious terms — or at least see an opportunity. Vaccine-resistant workers are sharing tips online for requesting exemptions to the requirements on religious grounds; others are submitting letters from far-flung religious authorities who have advertised their willingness to help.
U.S. businesses have spent the past 18 months dealing with a series of logistically and politically contentious challenges raised by the pandemic, including shutting down workplaces, requiring masks and reopening, combined with widespread labor shortages. The new battle over vaccine exemptions is especially fraught, pitting religious liberty concerns against the priority of maintaining a safe environment.
“How much can we ask? How far can we push? Do we have to accommodate this? Those are the questions employers are trying to figure out,” said Barbara Holland, an adviser at the Society for Human Resource Management. And: “How do I tease out who’s not telling the truth?”
The very question strikes me as bizarre. The rationale for vaccine mandates is that the threat the unvaccinated pose to public health outweighs their personal liberties. To the extent that the government and/or businesses imposing them have the legal right to do so—and by just about all counts, they do—why should religious objections, genuine or fabricated, matter?
Certainly, nothing in either the Establishment Clause or the Free Exercise Clause requires special exemptions for the religious that override a compelling public interest. But Congress has created a pathway for these challenges:
Exemption requests are testing the boundaries of the federal Civil Rights Act of 1964, which requires employers to provide reasonable accommodations for employees who object to work requirements based on religious beliefs that are “sincerely held.”
[…]
[T]he provision defines “religion” broadly. The Equal Employment Opportunity Commission has specified that religious objections do not have to be recognized by an organized religion and can be beliefs that are new, uncommon or “seem illogical or unreasonable to others.”
They cannot, however, be based only on social or political beliefs. That means employers must try to distinguish between primarily political objections from people who may happen to be religious, and objections that are actually religious at their core.
For many skeptics, resistance tends to be based not on formal teachings from an established faith leader, but an ad hoc blend of online conspiracies and misinformation, conservative media and conversations with like-minded friends and family members.
This is a rather bizarre Catch-22. Why should sincerely-held philosophical or political beliefs matter less than sincerely-held religious beliefs? Beyond that, creating this distinction puts the government in the business of adjudicating which religions count as real. That’s the very essence of an Establishment of Religion, which is categorically banned by the First Amendment.
So, for example, in two Vietnam-era cases involving not-particularly-religious men who conscientiously objected to the war on moral grounds, the Supreme Court ruled that the draft’s exemption for those who objected on religious grounds must apply to these men as well because, otherwise, the exemption would violate the Establishment Clause.
Much further back, in an 1879 case involving the then-common practice of polygamy among Mormons, the Court established that, “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Their reasoning was unassailable: “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
With rare exception, the Court has been disinclined to assert Free Exercise Clause exemptions from generally-applicable laws and rules. But Congress has been much more generous in that regard. In addition to the aforementioned exemptions from the military draft and the Civil Rights Act, the Religious Freedom Restoration Act of 1993 was passed specifically in response to Supreme Court decisions rendering religious objections moot. The Court struck down provisions of this law that applied to states just four years later but has mostly let it stand with regard to exemptions from Federal laws and regulations.
Still, even under RFRA, the vaccine mandates should stand. The entire purpose of the law was to restore the so-called “Sherbert Test,” set forth in a 1963 Supreme Court decision. It was three-pronged:
- Has the government has burdened the individual’s free exercise of religion? The Court defined this as confronting an individual with a choice that pressures the individual to forego a religious practice by imposing a penalty or withholding a benefit. If so, it is only permissible if
- it possesses some compelling state interest that justifies the infringement AND
- no alternative form of regulation can avoid the infringement and still achieve the state’s end (the narrow tailoring prong).
It seems rather obvious that vaccine mandates meet this test.
The key phrase there is “reasonable accommodations.” It is not reasonable to allow employees to skirt public health requirements.
What religion makes it a duty or sacrament to expose others to a deadly disease?
I have a sincere belief against working with plague rats. Whose beliefs are more important?
There’s no doubt in anyone’s mind how the RW screechers and rabble-rousers are going to react, I bet. And their audience is the ‘evangelical’ section of American religion in which the personal adaption of one’s mind, will and soul to the meanings of their religion is the central point. That ‘personal decision for Christ’.
And since it’s personal and written on their hearts, it is their religion. How can some bureaucrat in Washington override their faith? Obviously, only in a land without liberty.
I recommend ear plugs.
Believing that a dude was vomited to shore by a whale after spending a few weeks in its belly, or that a lady gave birth to God’s kid as a virgin, or hearing voices from a burning bush – these are all no more or less crazy than any anti-vaxxer’s equally idiotic rants about 5G chips or gubment’ control of our bodies.
Religious beliefs should not be honored, in any way, if they conflict with scientifically proven public health measures.
And yeah, that means Jehovah’s Witnesses can’t kill their kids through neglect anymore.
Once you allow “religious freedom” as an legal excuse for discrimination on the basis of race or gender, such an outcome on a public health issue is inevitable.
Bear in mind that the employer gets to establish that the request is based on a truly held religious belief, and may deny it if it finds that the request is instead based on other factors (medical concerns, for example). The accommodation may also be denied if granting it is determined to be unduly burdensome.
The primary factor to bear in mind is that, like any other discrimination claim, the burden of establishing that one has been discriminated against falls on the complainant, not the company. These people are likely to find themselves mired up in court battles they’re not prepared for.
Tired of these anti-vax and “I’m still doing my research” folks. My children finally go back to school; 9 days later quarantine for 2 weeks b/c two kids and a teacher came down with COVID. I certainly understand the need for quarantine – no issues there. But we are never going to get back to normal with these people refusing the vaccine and taking precautions. Every story I see on the news seems to have some genius regretting not getting the vaccine, usually they die, b/c they are “thinking it through”, “researching”, or worried about their freedoms; 9 times out of 10 they are obviously the most unhealthy looking folks who are, suddenly, thinking about their health – their body just became a temple that won’t be polluted by a vaccine. This pandemic has really shown how backwards so much of our society is – at this point it just makes me sad that this is the state of our country; held hostage by the actions of a few. Now thousands of people will suddenly find a deeply held religious belief…
@OzarkHillbilly: “I have a sincere belief against working with plague rats. Whose beliefs are more important?”
As it has been since the founding of the country, white right-wingers’ beliefs.
I suspect these people would have a completely different reaction if COVID had the death rate of something like Ebola.
They’re only making a fuss because they think they can get away with it and the illness won’t hurt them.
@Mike: People have always been thus, and always will be. They need leaders. And the entire GOP party and associated propaganda apparatus has decided to pander rather than lead.
@grumpy realist:
Or as disfiguring as smallpox.
These folks are about to get a crash course in the costs and limitations of our legal system if they think that they can just claim an exemption and go about their daily lives. Many of us are losing patience with these refuseniks.
@HarvardLaw92:
I expect a lot of big businesses to take the position that any accommodation that’s going to be effective — say, tracking the unvaccinateds’ ongoing test results, exposures, and quarantine status, plus enforcing masking — is unduly burdensome. I have no idea if the courts will rule that accommodations that don’t effectively control the spread have to be accepted.
I am dealing with this with our hospital staff an in particular my own docs and nurses. We have an HR team and a bunch of lawyers doing nothing but looking at the exemption requests based upon religion. As HL92 notes it must be a sincerely held belief. All of my people have provided very well written essays documenting their sincere beliefs. They have had their ministers/priests all sign and attest to those beliefs. I am fully expecting that our team gives in and grants the very large majority of these exemptions.
It will be very hard to prove their beliefs are not sincere. For some tiny percentage we will find a facebook where the person says “Fu** the govt I am not getting the jab with those Bill Gates microchips” bout we wont see many of those. Besides which, having known some of these people for many years, they really are sincere (just wrong). Next, we desperately need staff. Many medical facilities are not going to mandate vaccines since they are afraid of losing staff. Unless we all agree to mandate vaccines staff can leave and go to places that dont require them. Not happening.
Finally, IANAL (thank God) but I dont think the legal battles and costs go the way some here think. (This will be a hospital oriented analysis but think it is more generally applicable.) Hospitals are not going to sue employees. Employees are going to sue hospitals. They are going to combine into groups and some right wing lawyer(s) is going to take this on for either contingency or there will be major donations from right wing groups. This will be fried entirely as religious liberty and I think there is a darned good chance of the hospitals losing. If you are in a state with right wing judges and state supreme court why risk it? Who here thinks that SCOTUS wont support the religious liberty claims?
Bottom line- I think that if you open the door to religious exemptions it makes it hard to deny them.
Steve
@HarvardLaw92:
Except you and I both know that there are well funded Christian organizations and “law firms” out there pushing hard to create a two tier system where “Christians” can opt out of dealing with people or consequences they don’t like. They are trying their hardest to gut reproductive rights and anti-discrimination laws, if fighting against vaccines gets them one step farther down that road, all the better for them.
Also, I specifically put “Christians” in quotes above because theses fundies like to screech about “Judeo-Christian” values, it’s BS. They will jettison Jews and Catholics as fast as they can. Harvardlaw and I will end up tied to the same tree to appease them.
@steve:
I am not a lawyer either, but I’d think this would be the opposite.
As far as a “sincerely held belief”–wouldn’t claiming a religious exemption mean that it would have to be a belief of the faith followed?
Meaning, for example, if I were a devout Catholic and didn’t want to get vaccinated, wouldn’t I be SOL because Pope Francis has *explicitly* stated that it is the duty of every Catholic who can, be vaccinated?
I don’t see how this works with people wandering in and saying “yes, I am a Catholic and it’s my sincerely held religious belief that I can’t get vaccinated” when the literal head of the Church says otherwise. So, you’re left with…what? A sudden rise in Jehovah’s Witnesses (who actually DO have a belief on record about no medical intervention).
Any clarity here?
@Jen:
Very roughly, the courts/government (as opposed to employers/anyone else) aren’t supposed to mediate religious disputes. It goes back to the Sherbert test, the court basically assumes whatever nonsense you are spouting is “true” and then goes from there. This is how the fundies are advancing their nonsense. The Right has gotten judges on the bench that basically say that well, what you are saying is true (if you are broadly Christian) and the government has NO interest that could surmount that “Truth”, therefore you get an exemption. These vaccine religious exemptions having nothing to do with religion and everything to do with advancing their other goals.
@steve:
Keep in mind that granting an exemption does not have to mean “you’re allowed to do your job exactly as before despite not being vaccinated”.
It can mean “you’re now red stapler Milton, living in the basement”.
We aren’t explicity mandating that our folks are vaccinated, but we are “strongly encouraging” it. In practice that means that if you choose not to be vaccinated, you’ll need to agree to be tested at least weekly, at your own expense, and the common areas of the firm are off limits to you. Otherwise work from home and enjoy the consequences of that.
There are many ways to mandate something without mandating it 🙂
@Beth:
Oh, no doubt. The usual suspects will do their usual thing. There’s just enough grey here that I don’t expect them to eventually win.
As someone who became an atheist before it was cool (~1970) I am short-term infuriated by, but long-term smirking contentedly at, evangelical Christians so clearly defining themselves as an anti-science death cult. What might have been the next generation of evangelical Christians is watching as their elders chisel off the veneer of normalcy and reveal the rage and hate and ignorance that is the true heart of evangelical Christianity.
WaPo July 6, 2021:
Well done, evangelicals. Keep digging.
@HarvardLaw92:
Lol, you’re a raging optimist. Personally, I’m pretty sure we’re sliding backwards to a new Jim Crow.
I see these vaccine religious exemptions as one more opportunistic battle in the general Rightwing goal of establishing a White Evangelical Ethnostate.
And while I am teasing you, I am also terrified. I’m sure some reading this will think I’m overreacting (and maybe I am) but as someone watching their and their people’s rights get legislated away it’s tough not to see this as one more Avenue of attack.
Also, what do you do when one of these smart anti-vaccine lawyers at your firm call one of their buddies at the fundie firms and whine that they were denied advancement because of their religious belief and the accommodation was a sham designed to discriminate against them. Is management going to want to fight that battle?
It’s likely going to rest more on what the reasonable accommodation is, rather than the religious objection.
Amazon allows dogs in the corporate offices — preferably corgis, but really any dog — and there are some employees with severe allergies, fears, etc. The reasonable accommodation is a dog-free building where they are placed away from their teams (there are a few teams based here) and then their career stagnates and dies because everyone forgets they exist.
I can see larger companies creating covid ghettos like this. Unfortunately that’s going to catch people with genuine medical conditions as well as the pro-covid crowd.
Smaller companies will not be able to create ghettos for their covid enthusiasts employees.
(On the other hand, if you have anxiety issues about too many people and noise behind you and illness spreading in close quarters, Amazon’s policy is roughly “tough shit, no accommodation would be reasonable, off to the high-density-seating plague farm with you.”)
@Gustopher:
Now THIS is a real problem. You have x% of people who cannot get vaccinated for a medical reason, and they get lumped in with the chuckleheads who think there’s a tracking chip in vaccines…ugh.
I don’t recognize about half the religious symbols in the photo, but the last one looks a lot like the bio-hazard symbol, and that just seems very appropriate here.
It reminds me of the mutants worshipping the nuclear weapons in the one Planet of the Apes movie.
(My apologies to the devout followers of the right-most religion, I’m sure your religion is no less sane and reasonable than Christianity)
@Beth: Thank you for the explanation…it’s frustrating though, to think that there’s a loophole big enough for a truck to get through. IMHO, “Religious exemption”= sincerely held belief in a fundamental tenet of the faith.
Not “I am part of this faith and have randomly decided that it’s a religious basis upon which I’ve decided to be a plague carrier.”
@Gustopher: It’s a Horn of Odin. Your point stands. 😀
@Beth:
I can legitimately understand why you’d be terrified. I’m concerned, but these folks lose more than they win (or have anyway). Going forward my outlook may change.
Are you really asking me if a firm full of lawyers is going to have a problem with taking on Fundies ‘R Us? Lol, they’d be fighting each other to take lead. In our position, it would probably even be good PR. 🙂
@Mike: The society is broken. The wording of the “religious exemption” and the lack of understanding of Christian doctrine among RWNJ evangelicals are simply symptoms of the brokenness. As to whether the brokenness is irreparable or not is outside my ken (and my Barbie, as far as that goes).
@Michael Cain: ” I have no idea if the courts will rule that accommodations that don’t effectively control the spread have to be accepted.”
Based on the direction the Court seems to be taking on the recently passed Texas legislation, do you really have no idea or are you being wishful? Other courts may well be in doubt, but the Supremes are starting to look more and more like a wholly-owned subsidiary of the GQP.
@Just nutha ignint cracker:
RW snowflakes are dooming us, imo.
Selfishness.
No community sense or spirit.
The religious exemptions, at least for Christians Muslims and Jews, are often about the use of aborted fetal tissue in the development, manufacturing or testing of the virus. Additionally, for Muslims and some Jews some vaccines are not halal/kosher because they use pig gelatins.
Moderna and Pfizer have no animal products but they were tested with fetal cell lines. J&J also has no animal products but require fetal cells for production.
Most religious groups recommend members take Pfizer or Moderna as the options with the least ties to fetal tissue. And most have recommended getting vaccinated or at least stating it is morally OK to do so while still allowing individuals to follow their conscience.
There are other types of religious exemptions and not just among Christians, Muslims and Jews, but I bet that will be the majority reason.
Of course the main problems with religious exemptions is that they are very hard to judge while being easy to game. There are always going to be some number of people who will daube real religions convictions and others who don’t but can cosplay well enough. My view is that this number is too small to worry much about as mandates will be accepted by most people, and also because refusing a vaccination comes with downsides/alternatives that others have already mentioned.
As for the mandates, as is usually the case, my bigger concern is about process. Once again Congress is completely absent and we have an Executive branch trying to enforce what it wants to do via an obscure provision mines out of OSHA. It’s an option that’s had a checkered judicial history and has never been used for enforce something at this scale before. So the courts will adjudicate it and Congress will, as usual, do nothing.
Given the reactions of many of our neighbors it astonishes me we won WW2.
Where the fuck did our backbone go? Why and when did we get this fucking lame?
@Andy:
Judaism has a principle called pikuach nefesh which states that protecting a human life takes precedence over virtually every Torah commandment. It’s why the most Orthodox of Jews will unhesitatingly call 911 on Shabbat even though they’re normally forbidden to use phones that day, and there are religious doctors and EMTs who regularly violate these laws with the full blessings of the rabbis, because it’s seen as necessary to save lives. In the 19th century during a cholera outbreak a famous rabbi not only decreed that his community shouldn’t fast that Yom Kippur, the holiest day of the Jewish calendar, he actually went out and ate and drank in public view on that day just so they got the point.
The problem isn’t that any religious Jews are in principle unwilling to take life-saving medicine if it contains unkosher products–the problem is that some of them (particularly in Haredi and Hasidic communities) aren’t accepting of the reality of the pandemic, and are prone to anti-vax misinformation.
@steve:
How will your hospital deal with withholding or slowwalking it’s medicare reimbursements?
@Jen:
There have been a few Norse Pagan military members who have been granted religious exemptions from some things, primarily the requirement to shave:
https://www.airforcetimes.com/news/your-air-force/2019/07/18/meet-the-first-norse-heathen-airman-to-grow-a-beard-in-the-air-force/
Also Sikhs, Muslims, and others have, in the past few years, been allowed to have beards and non-uniform headwear (turbans, hijabs, etc.) as religious accommodations.
Patients who get covid from your employees can sue hospitals too. Proving it might be difficult but IANAL.
@Andy: Turbans aren’t contagious.
I assume they come in camouflage for when on patrol, and are not required to be hunter orange.
I’m all for accommodation of religious needs, even when I think the religions are dumb, provided it does not hurt other people or involve microwaving fish.
Speaking of selfishness….
me first and the gimme gimmies are pretty fucking cool. They specialize in covers. Choose your own. I dig their version of Karma Chameleon.
@Gustopher:
I am super down for a seder as long as I can bring my own food. Nothing offensive.
@HarvardLaw92:
Does the medium sized business have a room full of lawyers sitting around waiting for lawsuits? The big companies, sure. But below a thousand or five hundred employees?
I think OSHA needs to lay out some guidelines for what a reasonable accommodation looks like here, to give companies more legal cover.
– Are employers required to allow/offer weekly testing?
– Can they require unvaccinated employees to announce their status so others can stay away?
– If an unvaccinated employee sneezes, can they be fired for coming in sick?
@de stijl: In WW2 we were fighting mostly foreign Nazis.
@Just nutha ignint cracker:
I acknowledge your point. But I also think there could be as many as six votes on the side of big business, which pretty clearly wants accommodations to be inexpensive while still being effective in limiting spread. Roberts will be easily in that camp. I’m not sure about Gorsuch and Kavanaugh.
@Kathy:
Well, Trumpism is basically a religion, so there’s that.
HL92- All of my people do direct pt contact. I cant stick someone in an office running the stapler.
Steve
These people are going to be kicked in the ass sooner or later (if you care about maintaining America as a Top 3 country) so why not do it for a worthwhile cause like wrapping up this pandemic?
This is never going to stop by persuasion alone. They will continue to say up of you think down or think down if you say up. Thats a longer term problem to work by persuasion and exposing the instigators profiting on stirring the pot. The short term play can only be power play… democracy means nothing if it doesn’t result in the fundamental need for a society–order. This whole freedum because the gubment wants to enslave me bullshit has reached a ridiculous chapter. Rampant disease spread, shootings, drug abuse, white collar fraud… yeah democracy is really great.
Alas, urbanites will do what they always do…feign surprise when overun by rural yokels turned against them by monied elites… i.e Communists, Taliban, etc
David Frum had a great Twitter thread today, pointing out that overwhelmingly, anti-vaxxers faced with vaccine mandates are complying:
And I’ll add one I read about in my own community:
It is those EVIL, EVIL I tell you right wing Jehovah Witnesses. I tell you Mildred, those folks with their blood and injection silliness will be the death of us. And Christian Scientists? Mary Baker Eddy? How can you believe any of that? Repent, repent!
@OzarkHillbilly: Medically if you are vacvinated then someone unvaccinated cant give it yo you, UNLESS the vaccine dont work.
remenber America Is FREEDOM of Religion
@steve: That’s fine, but you can expect elevated administrative costs for years as you pay increased health insurance premiums for long-haul COVID employees. Presumably you also carry some sort of life insurance for these folks, and you can expect payouts there too.
I would think that corporate costs alone would justify a tougher stance. In fact I think COVID vaccine mandates might well kill the employer-based healthcare system.