2022 FFRF legal essay contest — 3rd place: Jacob H. Larson
FFRF awarded Jacob $2,000.
By Jacob H. Larson
My civics teacher once had us subject each First Amendment right to a “Survivor”-style vote. After summarily axing press, petition and assembly, our choice was between speech and religion. Near unanimously, religion won. It may be unsurprising that so many Bible Belt high schoolers voted like this, but several students (like me) did not belong to an evangelical or charismatic tradition. Perhaps we all understood the importance of a constitutional right to personal, private belief.
Today, vaccine mandates hardly have this level of unanimous support. In the generation-defining Covid-19 pandemic, courts continue to decide which rights to keep and which to axe. Despite recent these rulings, however, religious exemptions from vaccine mandates contravene decades of First Amendment jurisprudence that limits expressions of personal belief when they cause third-party harms.
Free Exercise and third-party harms
Though the First Amendment protects the expression of personal beliefs in speech, assembly, press and petition, circumstances sometimes require a temporary, limited abrogation of these inalienable rights. One such circumstance arises when third parties face risk.
For instance, the government may restrict “well-defined and narrowly limited classes of speech,” including “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” It may similarly convict a public speaker “if he commits acts or make statements likely to provoke violence and disturbance of good order.” Thus, while the Constitution protects content — that is, beliefs themselves — it permits some regulations on how citizens express their beliefs.
Even the First Amendment’s textual right to Free Exercise does not protect religious practices that harm third parties. Such third-party harms may be concrete and realized, or they may be more generalized harms to American society. The Supreme Court first articulated this principle in Reynolds v. United States, where it upheld a statute criminalizing bigamy in federal territories. The court held that the government could find bigamy threatening to American society for any number of reasons, and so could outlaw it. It further noted that there, in fact, must be constitutional limits on the right to certain religious practices, or else it would “make the professed doctrines of religious belief superior to the law of the land.” At the very least, the Free Exercise Clause cannot bar the government from preventing human sacrifice.
The link from bigamy to human sacrifice may seem tenuous, but the court has since elaborated upon other third-party harms that limit Free Exercise rights. It has held that states may not require employers to honor every employee’s chosen Sabbath day, as this could create “burden or inconvenience” for the business or coworkers. Conversely, it found that the Religious Land Use and Institutionalized Persons Act (RLUIPA) was constitutional because it did not harm “significant interests” of third parties, like the safety of prison officials and other prisoners. It has continued to look to third-party harms in the recently decided Holt v. Hobb and Burwell v. Hobby Lobby Stores Inc.
Most critically here, however, the doctrine creates a stark difference between free exercise in the public and private spheres. Few would question the constitutionality of personal self-harming religious conduct like fasting. The Supreme Court has likewise found that religious institutions can make internal hiring decisions. But when a religious person or institution steps into the world, when they confront the multitudes of beliefs making up society, then the Constitution equally protects third parties. For example, an Amish farmer cannot be exempted from paying his employees’ Social Security taxes and so deny them a statutory benefit of citizenship. As the court held, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” In public, we all play by the same rules.
Exemptions as third-party harms
Religious exemptions to vaccine mandates create constitutionally unacceptable third-party harms. These harms are particularly acute given the Covid-19 pandemic. There have been over 75 million confirmed cases of Covid-19 in the United States, and the virus has killed nearly 1 million Americans. This exceeds the deaths from any war in American history, with a significantly disproportionate impact on people of color. Meanwhile, vaccines are incredibly effective at preventing illness. While over 70 percent of Americans have received at least one dose of the vaccine, only a fraction of hospitalizations are of those who have been vaccinated. President Biden has even gone so far as to call it “a pandemic of the unvaccinated.”
Nevertheless, failure to vaccinate threatens others. Some Americans cannot use vaccines due to underlying age or health conditions, and so face illness unless enough are vaccinated to create “herd immunity.” This is to say, with a large enough vaccinated population, those who cannot be vaccinated remain shielded. But each eligible person who refuses to be vaccinated creates a chink in the armor. Such refusals have already had documented consequences. Before the pandemic, the anti-vaccination movement — including certain religious groups — caused a resurgence of measles, which had long been dormant in the United States. At least one immunocompromised woman died as a direct result. Religious exemption from a vaccine mandate is thus far from a personal choice.
Religious exemptions in this way involve the public sphere just like similarly unprotected free exercise. Though attempted mandates have ranged in scope from businesses to schools to the federal workforce, none could be less public facing than an Amish farmer or Mormon family in a distant territory. Any recluse so removed as to avoid the third-party harms of religious exemptions would likely escape the strictures of a vaccine mandate altogether. Just as federal taxation and marriage are institutions that affect large swaths of American society, the unvaccinated come in regular contact with coworkers, neighbors and schoolmates. Furthermore, many Americans pay no federal taxes or do not marry, yet laws remain in place for those who do. The fact that a vaccine mandate is not truly “universal” does not mean that courts or lawmakers can discount the broad third-party harms of religious exemptions across American society.
Judicial review of exemptionless mandates
In short, because religious exemptions to vaccine mandates cause clear third-party harms across American society, neither federal nor state governments are constitutionally required to provide religious exemptions. Governments or private institutions need not mandate vaccines at all, of course, and perhaps a constitutional exemption could exist for some small, hyper-insular group. However, for the kinds of mandates that exist in practice, courts should apply the third-party doctrine when subjecting the mandate to judicial review. To this end, after establishing that a sincerely held belief has been substantially burdened, Free Exercise challenges require different levels of review, depending on the circumstances. The standard today is rational basis for neutral and generally applicable laws under Employment Division v. Smith, but this can increase to strict scrutiny for a variety of reasons.
Despite recent contrary decisions, mandates without a religious exemption should survive any level of judicial review. Though rational basis review is more forgiving, the protections for third parties do not disappear upon reaching strict scrutiny. Lee and Caldor were decided before Smith, when the court applied strict scrutiny to all substantial burdens of Free Exercise. The court developed the Cutter factors, which included third-party harms, under the strict scrutiny required by RLUIPA. The principles of the third-party doctrine should therefore apply regardless of the level of scrutiny. They are a core part of the jurisprudence that courts must carefully factor into their consideration of how governments tailor mandates and exemptions.
High schoolers, probably more than anyone, believe they are always right. But it is hard to imagine that even high schoolers would vote for a Free Exercise Clause that leaves them defenseless against others’ harmful acts. More than just game theory, this is a fundamental part of how rights work: “Liberty consists of the freedom to do everything that injures no one else.” And today, as deaths from Covid-19 continue to mount, as diseases like measles spread once more through vulnerable Americans, any anti-vaccine beliefs have a real human cost.
Religious opposition to vaccines is no less costly. First Amendment jurisprudence has traditionally allowed governments to protect Americans lives and society, even when it substantially burdens the free exercise of sincerely held religious belief. This essay has not questioned the sincerity of religious vaccine opposition or whether mandates impose a substantial burden because this does not matter. So long as the third-party doctrine stands, courts should not require religious exemptions to vaccine mandates.
Jacob Larson attends law school at the University of Virginia. Prior to that, Jacob attended the University of North Carolina at Chapel Hill. “I love being outdoors, and have run two marathons,” Jacob writes. “I came to law school to pursue a career in government service. I will be working at the IRS after graduation.”