Fulton and Government-Mandated Vaccinations

Zachary B. Pohlman

Photo by little plant on Unsplash.

This article is part of our “Law and Religion Under Pressure: A One-Year Pandemic Retrospective” series.
If you’d like to check out other articles in this series, click here.


The COVID-19 pandemic recently passed the one-year mark. Despite the predictions of some health officials a year ago, the once-impossible has become reality: we have a vaccine. Actually, multiple vaccines, with over 100 million doses having been administered already. Recent polling shows that three-quarters of American adults have received or are willing to receive a COVID-19 vaccine. This is all great news. But as our country attempts to return to normalcy, government officials will once again be faced with difficult political and legal questions regarding coronavirus management. Previous disputes involved, among other things, the constitutionality of certain restrictions on public gatherings; the impending one concerns the constitutionality of certain vaccine rollout programs.

While 75% of the country has received or looks forward to receiving a COVID-19 vaccine, states will soon need to decide what to do regarding the 25% of those who decide not to get vaccinated. Government-mandated vaccines are already on the table in some states, at least in certain situations. These situations may include mandatory COVID-19 vaccinations for health care workers, students attending public colleges and universities, and students attending public primary and secondary schools. Refusing to be vaccinated in the face of a government-compelled vaccination requirement could mean losing your job or being excluded from school. In each situation the message is clear: get vaccinated or bear the consequences.

But what about those who refuse a government-mandated vaccination based on their sincerely held religious beliefs? While many states exempt religious believers from vaccination requirements, some states do not. To be sure, the number of people in the United States who might refuse to be vaccinated due to a religious objection is likely small. But regardless of the number ultimately affected, the First Amendment guarantees the free exercise of religion to all. The question of what to do when a religious believer objects to being vaccinated under a mandatory vaccination regime is therefore a live one.


As Professor Doriane Coleman previously explained on the Canopy Forum, the Supreme Court’s 1905 decision in Jacobson v. Massachusetts held that local government vaccine mandates are constitutional as an exercise of a state’s police power to protect public health, safety, and morals. Citing Jacobson, the Court in Prince v. Massachusetts (1944) stated in dicta that “the right to practice religion freely does not include liberty to expose the community . . . to communicable disease.” And as a recent Second Circuit opinion held, the Prince “dictum is consonant with the Court’s [First Amendment] precedents.” In particular, denying judicially created exemptions to blanket vaccine mandates is consistent with the Court’s landmark free exercise decision in Employment Division v. Smith (1990), which held that “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Instead, to be upheld as constitutional, a neutral and generally applicable law — here, a blanket vaccination requirement — need only be rationally related to a legitimate government interest. A state’s decision to eradicate COVID-19 through government-mandated vaccinations easily passes that low bar.

In each situation the message is clear: get vaccinated or bear the consequences. But what about those who refuse a government-mandated vaccination based on their sincerely held religious beliefs?

But what if the bar were higher? What if neutral and generally applicable laws that caused incidental burdens to religious exercise needed to be justified by a compelling governmental interest instead? In Fulton v. City of Philadelphia, a case that has already been argued and will be decided this Term, the Court has been asked to overrule Smith and return to the compelling interest test that predated Smith. The Court, of course, has a strong preference for upholding precedent, but overruling Smith is not out of the picture. Less than two years ago, Justices Alito, Thomas, Gorsuch, and Kavanaugh signaled that Smith should be “revisited,” arguing that Smith “drastically cut back on the protection provided by the Free Exercise Clause.” Since then, Justice Barrett has joined the bench, and at least some commentators think that she might be willing to overrule Smith as well.

Nonetheless, it’s my position that no matter how Fulton is ultimately decided, it likely won’t have much to say about whether the judiciary can craft religious exemptions to government-mandated COVID-19 vaccinations. This is so for at least two reasons: (1) Smith isn’t likely to be overturned this Term, and (2) even if it is, state governments likely have a compelling state interest in mandating vaccinations to combat COVID-19. I’ll consider each in turn, but before I do, a quick word on scope.

What if neutral and generally applicable laws that caused incidental burdens to religious exercise needed to be justified by a compelling governmental interest instead?

The Smith framework applies only to state laws challenged under the federal Constitution. Smith has nothing to say about challenges to federal laws on free exercise grounds; the Religious Freedom Restoration Act covers such situations and instructs courts to review challenged federal laws using the pre-Smith “strict scrutiny” standard. Moreover, the Free Exercise Clause, as interpreted in Smith, provides a minimum level of protection for religious believers. States are, of course, free to afford their citizens even greater free exercise protections than what the federal constitutional floor requires. Indeed, many states have done just that, passing state-level Religious Freedom Restoration Acts that employ the pre-Smith strict scrutiny standard. Lastly, Smith prevents only the judiciary from crafting religious exemptions. Legislative exemptions to accommodate the free exercise of religion are always an option, and perhaps a preferable one in any event. As Professor Richard Garnett once put it, “Our politics should, in general, regard the free exercise of religion not primarily as a danger to be contained or a nuisance to be managed, but as a human, social, and political good to be both protected and promoted.”


With Smith’s scope in mind, I’ll take up the two reasons why Fulton — whether those claiming protection under the First Amendment prevail in that case or not — is irrelevant for the constitutionality of mandatory COVID-19 vaccination programs in the face of religious objections.

First, the Supreme Court is unlikely to overturn Smith — at least in Fulton. To understand why, we have to consider the dispute in Fulton in some detail. Catholic Social Services of Philadelphia (CSS) is one of a number of agencies providing foster care services for children who come into the City’s custody. CSS, like the other foster care agencies, contracts with the City on a yearly basis to provide foster care services. Under Philadelphia’s system, the City refers a child in need of foster care to one of its partner agencies, and the selected agency then places the child with an appropriate foster parent. One aspect of the foster care contract with the City requires foster care providers to comply with certain state and local regulations, including Philadelphia’s Fair Practices Ordinance, which prohibits discrimination in public accommodations on the basis of sexual orientation. CSS, based on its sincere and deeply held religious belief that marriage is between one man and one woman, told an investigative reporter with the Philadelphia Inquirer that it would not place a child with a same-sex couple (nor with unmarried couples). As a result of the resulting Inquirer story, the City implemented an “intake freeze” against CSS, under which it would no longer refer children to CSS until CSS agreed to place children with same-sex couples. CSS filed a lawsuit seeking to have its contract with the City reinstated while permitting it to work only with opposite-sex couples in accordance with its religious beliefs. Applying Smith, the Third Circuit ruled in favor of Philadelphia, holding that “[t]he City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy.”

As you might guess from the facts, the pending case is less than straightforward. Of course, the Court could overturn Smith and rule for CSS. Unlike many cases that implicate Smith, however, there are a number of factors that may messy the First Amendment analysis — and provide the Justices a number of ways to resolve the dispute in favor of CSS without overruling Smith. For one, CSS’s status as a government contractor complicates things. Should the fact that the City gets to decide who it contracts with provide them with more latitude in setting foster care standards? Or, as Justice Thomas suggested at oral argument, because foster care agencies must contract with the City to provide foster care at all, is the contract regime really a form a licensing in which case the City would have less latitude to discriminate? Another complicating factor is the fact that CSS has not once actually turned away a same-sex couple; the alleged injury is one of “stigmatic harm” only. Lastly, and most importantly for the Smith analysis, the City’s policy allows foster agencies to consider the race and disability status of potential foster parents when placing children with foster parents. By allowing foster agencies to discriminate on these bases but not on the basis of marriage status, the City’s ordinance might not be “generally applicable” after all. If the Court holds that the ordinance does not apply across the board because it allows agencies to make placement decisions based on some criteria but not others, Smith would not apply; strict scrutiny would kick in.

If the Court holds that the ordinance does not apply across the board because it allows agencies to make placement decisions based on some criteria but not others, Smith would not apply; strict scrutiny would kick in.

The point is that these factual peculiarities and alternative grounds upon which the Court might grant CSS relief make Fulton a less-than-ideal vehicle for overruling Smith, a prediction shared by the hosts of one of my favorite podcasts. The last option I suggested — holding that the City’s ordinance is not generally applicable — seems an especially likely outcome in light of some recent high Court opinions stemming from challenges to COVID-19 restrictions on church attendance. Multiple Justices have reasoned that certain restrictions on church attendance were not generally applicable where exemptions were granted to a “single secular analog.” This narrow conception of what counts as a generally applicable law may very well carry the day in Fulton; this would have the effect of subjecting the City’s “intake freeze” to strict scrutiny. If the Court goes this route, CSS would likely win in Fulton, but Smith would stay on the books. And with Smith on the books, blanket and mandatory vaccination programs challenged under the First Amendment would receive only rational basis scrutiny: state and local governments would need to show only that mandating vaccines is rationally related to the government’s indisputably legitimate interest in eradicating COVID-19. Under that deferential standard of review, mandatory vaccination programs would easily be upheld.


Second, if I’m wrong and the Supreme Court does overrule Smith, it’s likely that (most) mandatory vaccination schemes would nonetheless be upheld against free exercise challenges. If the Court in Fulton overrules Smith, state laws burdening the free exercise of religion would need to survive a strict scrutiny analysis. Here, that means a state government would need to show (1) that it has a “compelling governmental interest” in combating COVID-19, and (2) that mandatory vaccinations are the “least restrictive means” to furthering that interest. While few governmental interests qualify as “compelling,” eradicating COVID-19 and returning to normalcy undoubtedly rises to that level. Indeed, the Court said as much just a few months ago, stating in no uncertain terms that “[s]temming the spread of COVID–19 is unquestionably a compelling interest.”

While few governmental interests qualify as “compelling,” eradicating COVID-19 and returning to normalcy undoubtedly rises to that level.

The only remaining question, then, is whether requiring vaccinations across the board is the least restrictive means of doing so. Or, more specifically, whether getting to herd immunity, which can be achieved with a 95% vaccination rate, is sufficient to fight COVID-19. Presumably, herd immunity could be achieved even without vaccinating a small population of religious objectors, such that a state’s least restrictive means of achieving herd immunity could include not vaccinating such objectors. Win-win. But that question is, in part, an empirical one: Is a blanket vaccine requirement in certain settings necessary to achieve herd immunity? Some states seem poised to conclude that it is. Conversely, if states decide that herd immunity alone is not sufficient to combat COVID-19, that they have an interest in eradicating COVID-19 completely, and that nothing shy of vaccinating the entire populace will achieve that goal, then courts must decide whether there are least restrictive means of doing so given that public policy decision. Again, such a least restrictive means analysis would implicate empirical considerations. In both situations, the Court’s precedent in Jacobson indicates that courts might take a fairly deferential approach in determining whether viable alternatives to mandatory vaccinations exist.

Deferential review notwithstanding, there are limits to what a state can proscribe under this second prong of the strict scrutiny analysis. Consider, for example, that the United States Conference of Catholic Bishops issued this statement to American Catholics with respect to the various vaccines currently available:

The Johnson & Johnson vaccine . . . was developed, tested and is produced with abortion-derived cell lines raising additional moral concerns. . . . [I]f one can choose among equally safe and effective COVID-19 vaccines, the vaccine with the least connection to abortion-derived cell lines should be chosen. Therefore, if one has the ability to choose a vaccine, Pfizer or Moderna’s vaccines should be chosen over Johnson & Johnson’s.

An American Catholic might therefore claim that her free exercise rights would be violated should a state require her to receive the Johnson & Johnson vaccine. The availability of alternatives to the Johnson & Johnson vaccine indicates, however, that there are likely “least restrictive means” to furthering the government’s interest in eradicating COVID-19 — namely, giving the Catholic objector the Moderna or Pfizer vaccine instead. This would allow the state to pursue its compelling governmental interest without infringing upon the Catholic’s free exercise rights.


 Therefore, the upshot from both scenarios I’ve explored here is the same: Fulton, no matter how it’s decided, will prove to be largely inconsequential for constitutional disputes regarding mandatory vaccination programs in the face of religious objections. To be sure, a court’s legal analysis would look different depending on how Fulton is decided. If Smith remains good law, blanket mandatory vaccination regimes would be upheld under the deferential rational basis standard of review. If Smith is overruled, blanket mandatory vaccination regimes that infringe a person’s free exercise rights would need to survive strict scrutiny analysis, but as I’ve shown, such regimes would likely be constitutional even under this searching standard of review.

In sum, while Fulton has the potential to be a blockbuster free exercise case, regardless of how it’s decided, it likely won’t have much to say about the constitutionality of government-mandated COVID-19 vaccines. ♦

Zachary B. Pohlman is a third-year law student at the University of Notre Dame Law School, where he serves as Editor-in-Chief of Volume 96 of the Notre Dame Law Review. After graduation, Zach will clerk for Judge Steven M. Colloton on the U.S. Court of Appeals for the Eighth Circuit and Justice Jonathan J. Papik on the Nebraska Supreme Court.

The author thanks Rick Garnett for helpful comments.

Recommended Citation

Pohlman, Zachary B. “Fulton and Government-Mandated Vaccinations.” Canopy Forum, April 21, 2021. https://canopyforum.org/2021/04/21/fulton-and-government-mandated-vaccinations.