FFRF 2022 legal essay contest — 1st place: James B. Aird

FFRF awarded James $4,000.

By James B. Aird 

James B. Aird

Most religions preach that people should care for one another. 

Unfortunately, when offered a life-saving vaccine, many religious citizens have turned their backs on that principle, citing their religion as the reason they cannot help protect their neighbors. 

Given that most religions do not oppose vaccination as a matter of official doctrine, the truth is that refusal to take the vaccine is often a political rather than religious choice. Still, to the extent these religious beliefs are sincere, requiring an exception for religion from vaccine mandates is nonetheless not mandated by the First Amendment. 

Religious exemptions from vaccination requirements are not constitutionally required because vaccine mandates are usually neutral and generally applicable laws under the rule of Employment Division v. Smith, because they pass strict scrutiny, and because requiring a religious exemption violates the Establishment Clause by granting a benefit to religion over nonreligion.

Vaccine mandates are nothing new. Before the nation’s founding, George Washington famously inoculated his soldiers against smallpox. Over a century later, the Supreme Court upheld the right of a state to mandate vaccinations to combat the spread of contagious and deadly disease. “Real liberty for all could not exist,” the court wrote, “under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person of his property, regardless of the injury which may be done to others.”

While an individual certainly has rights against the will of the community, so, too, does the broader community have a right to protect itself from the unbridled will of a minority of its members. Individual rights are not, and never have been, wholly free from restraint “at all times and in all circumstances.” This remains the law of the land today. 

As we enter the third year of a global pandemic, most of us are well aware that a primary method of stopping transmission and mutation of a pathogen like Covid-19 is to achieve herd immunity. This occurs when enough individuals are protected against infection such that a virus can no longer spread. A large majority (approximately 70-95 percent) of a population must be immune to achieve herd immunity, depending on the infectiousness of the agent. We will not be easily rid of this disease unless we all stop contracting it. 

Under current doctrine of Employment Division v. Smith, there is no Free Exercise violation where a law is neutral and generally applicable, even if the law incidentally burdens religious practice. Religion does not get a pass on laws which we all must follow. 

Modern Supreme Court jurisprudence has not overruled Smith, but it has muddied the waters. Fulton v. Philadelphia requires that when discretion is given to a governmental decisionmaker to make exemptions from generally applicable laws, then a religious exemption must be one of the offered exemptions. When the law would grant an exemption to a “comparable secular activity” over a religious activity, an exemption must be given to religious exercise. With proposed Covid-19 vaccination mandates, there is no comparable secular activity which is left unregulated. 

It is true that all vaccination mandates include a medical exemption, but the fact that a law may have a medical exemption is not a discretionary exemption to which Fulton applies. No government actor — be it the city of Philadelphia, the California Legislature or the federal government — can force a vaccine upon a citizen when it knows the vaccine would cause great physical harm. If the government were to require a citizen known to be at certain medical risk to nonetheless take the vaccine, they would violate the citizen’s 14th Amendment rights to deprivation of life without due process of law. Here, no government decisionmaker has a choice — a medical “exemption” exists not because the government exercises its discretion, but because the 14th Amendment requires it. A Covid-19 vaccination requirement that only allows a medical exemption is thus a generally applicable law, which has no discretionary exemption process, and allows no religion to circumvent it under the rule of Smith. 

But as the Supreme Court has recently made clear, Smith’s days may be numbered. Smith survives primarily because the court’s conservatives do not know what to replace it with. Even in a post-Smith world, a religious exemption from a vaccine mandate is not constitutionally required. Prior to Smith, a law which imposed a substantial burden on religious exercise could be sustained only if it was narrowly tailored to serve a compelling government interest, or in other words, only if it passed “strict scrutiny.” Though strict scrutiny is a higher standard, it is strict in theory but not always fatal in fact. 

A vaccine mandate furthers the compelling governmental interest of public health and safety. “The power of the state to take steps to prevent the introduction or spread of disease . . . is beyond question.” Because vaccine programs must reach a high level of compliance in the community to be effective, the mandate is as narrowly tailored as it can be. 

Furthermore, a requirement that the government must always have a religious exemption for a vaccine (or any other generally applicable health and public safety law) violates the Establishment Clause by giving a benefit to religious citizens that the secular amongst us cannot enjoy. The Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.” To require that there always must be a religious exemption allows any religion (however newly created and however clearly a sham) to opt out of a public health law to which an atheist “anti-vaxxer” would be forced to comply. 

Courts have “an overriding interest in keeping the courts ‘out of the business of evaluating the relative merits of differing religious claims,’ or the sincerity with which an asserted religious belief is held.” If a vaccine mandate exemption is required for any religion, ad hoc “religious groups” could become a law unto themselves, opting out of all manner of laws whenever they please. Such a requirement allows grifters to make a buck by endangering public health. When the disease in question is contagious and lethal, it is a threat to us all which cannot be tolerated. 

A majority of the Supreme Court seems to agree that where a law does not allow for discretionary exceptions, the government is not required to go out of its way to create one for religion. In a recent denial of certiorari, only Justices Neil Gorsuch and Samuel Alito would have heard a case in which the state of New York, responding to myriad (likely contrived) religious exemption requests, removed a religious exemption from its vaccine mandate law altogether. Where the law grants discretion, Fulton requires religion be included, but where the law gives no latitude to a government decisionmaker, religion cannot demand an exemption for its own sake. 

The Free Exercise Clause affords broad protections for religious practice in the United States. Its protections have allowed multimillion-dollar companies to exempt themselves from employee insurance requirements and small business owners to discriminate against LGBTQ+ citizens in places of public accommodation. It exempts certain religions from truancy statutes and the requirement of those on unemployment insurance to take a new available job. But a line must be drawn when the religious practice endangers public health by allowing deadly and contagious disease to run rampant. 

Since the vast majority of the population needs to be inoculated to defeat Covid-19 (and future diseases to follow), a carve-out for religious practice is not only constitutionally unnecessary, but a direct threat to the health and safety of every American. 

James Aird is a student at the University of Wisconsin Law School. Prior to law school, James worked in real estate to pay the bills before realizing he wanted to work as an attorney. When he’s not immersed in reading about the law, he enjoys cooking, traveling and tabletop gaming.