Constitutional Recognition of Religious Exemptions to Vaccination Requirements

James G. Hodge, Jr.

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Throughout the COVID-19 pandemic, the U.S. Supreme Court has demonstrated its willingness to intervene on critical questions of legal preparedness and response. Along the way, through two Presidential administrations and major shifts in the Court’s members, it has systematically reshaped core constitutional norms during the deadliest infectious disease crisis the nation has ever faced. 

Reinterpreting principles of separation of powers, federalism, agency deference, and select constitutional rights, the Court has curbed public health authorities. In August 2021, for example, it stripped the Centers for Disease Control and Prevention (CDC) of its ability to continue its national eviction moratorium to prevent the spread of COVID-19. The Court’s analysis rested on limitations of agency powers under constitutionally grounded assessments that were unclear at the start of the pandemic.

What Other Constitutional “Surprises” May Arise?

Public health and health care agencies are concerned about the effects that the Supreme Court’s assessments during the pandemic will have on long-standing vaccination laws and policies. For over a century, the Court has held fast to its 1905 decision in Jacobson v. Massachusetts, which affirmed the constitutional foundations for state and local governments to impose vaccine mandates. 

Mandating vaccines among adults was determined to be constitutionally sound by the Court in Jacobson just so long as limited exceptions were made via liberty interests for persons who were medically unfit candidates for vaccine.

An outbreak of smallpox at the turn of the 20th century led the City of Cambridge, Massachusetts to implement a vaccination mandate against a significant public health threat of the time. Smallpox has since been eradicated globally, but in the early 1900s it killed nearly one-third of infected persons. Vaccination was not a foolproof protection and was unsafe for some persons. However, mandating vaccines among adults was determined to be constitutionally sound by the Court in Jacobson just so long as limited exceptions were made via liberty interests for persons who were medically unfit candidates for vaccine.

The primary plaintiff in the case, Reverend Henning Jacobson, also expressed religious objections to Cambridge’s blanket vaccination mandate. The Court never heard that part of his claims because the First Amendment’s free exercise principles did not apply to state and local governments at the time. First Amendment protections are now fully “incorporated” to regulate state and local government actions, much the same as federal interventions. If religious freedoms arising from the First Amendment had applied at the time, whether Reverend Jacobson and others were entitled to a religious exemption from vaccination may have been adjudicated.

Do Vaccine Mandates Allow Exemptions for Religious Beliefs? 

On January 21, 2021, President Joe Biden introduced his National Strategy for the COVID-19 Response and Pandemic Preparedness, promising that the “United States will spare no effort to ensure Americans can get vaccinated quickly, effectively, and equitably.” During the most significant vaccination campaign ever undertaken across the U.S., profound questions arose whether federal- or state-level COVID-19 vaccine mandates must include religious exemptions. 

Neither level of government initially required COVID-19 vaccines as many considered the vaccines to be “experimental“; available supplies were also too low to warrant mandates. It is unethical to force uptake of COVID-19 vaccines for purposes of work or school-related attendance if people cannot actually access them. As available supplies of vaccines swelled and their efficacy and safety were demonstrated, mandates began to surface. Nearly all of them included exceptions for persons with sincerely-held religious beliefs through federal or state laws, but not constitutional protections.

Do First Amendment rights to freely exercise one’s religion require constitutional recognition of exemptions from COVID-19 (or other) vaccine mandates? Not presently. The Supreme Court has never firmly addressed this question, skirting multiple opportunities to do so during the pandemic. 

Yet it seems inevitable that it will take on the question soon through a First Amendment challenge either to COVID-19 vaccination requirements or other routine vaccination laws. Depending on the outcome of the Court’s decision public health immunizations may be impacted for decades to come. 

Does the Supreme Court’s View on Religious Exemptions Really Matter? 

Most Americans already enjoy opportunities to opt out of vaccine requirements for religious or philosophical reasons. After President Biden launched the national COVID-19 vaccine campaign in February 2021, subsequent federal vaccine mandates for large employers, health care workers, federal employees and contractors, and others included exemptions for people with sincerely-held religious beliefs under civil rights statutes and guidance from the federal Department of Health and Human Services.  

State vaccine mandates largely reflect the same exemptions, and not just for COVID-19. Nearly all states allow religious exceptions for an array of vaccine requirements applying to (1) day-care centers; (2) schools; (3) colleges; (4) specific occupations; and (5) interstate travel. Some state courts have adjudicated constitutional bases for these exemptions based on their interpretations of the First Amendment or equivalent provisions in state constitutions. In most jurisdictions, however, religious exemptions are grounded solely in statutory or regulatory laws, and not constitutional protections under the First Amendment.  

What are the Implications if Religious Exemptions to Vaccines are Constitutionally Required?

Even though religious exemptions to vaccine requirements are already prevalent across federal and state governments, a Supreme Court determination that such exceptions are constitutionally protected has substantial consequences for multiple reasons. 

In the last decade, some populous states including California and New York withdrew their long-standing religious exemptions prior to COVID-19. These policy determinations followed large outbreaks of measles and other conditions mostly among communities extolling religious freedoms as grounds for avoiding vaccines. As the numbers of those seeking vaccine exemptions rose so did the risks of spreading preventable diseases. Other states may follow these states’ leads in years to come.

In many states that retain religious exemptions from vaccines, seeking one is not always easy. Numerous states require attested personal affirmations, specific religious entity statements of objections to vaccines, parental education, or court-approved interventions of sincerely-held religious beliefs to qualify for exemptions. Elsewhere, some states make it easy to seek exemptions by essentially allowing persons to claim a religious or philosophical exception to a vaccine requirement through oral or minimal online or paper forms.

Even among jurisdictions that allow religious exemptions, significant repercussions may arise for persons that choose them. School children whose parents choose not to get them vaccinated for religious grounds may be excluded from school temporarily amid outbreaks of measles or other conditions. University students may be denied admission or access to on-campus living. 

Persons may not be hired for specific positions (e.g., health care workers) due to their unwillingness to be vaccinated, or fired from existing positions to protect the health of others. In February 2022, the Third Circuit Judicial Council allowed the dismissal of a court employee who refused on religious grounds to be vaccinated for COVID-19. The Council determined she essentially had no right to raise a religious objection. 

Supreme Court adoption of a First Amendment right to religious exemptions has the potential to reverse or limit these existing policies with deleterious impacts on the public’s health.  

Is the Court Likely to Require Religious Exemptions to Vaccine Mandates?     

Based on its recent COVID-19 jurisprudence, the chances are strong. In a series of cases at the heart of the pandemic, the Supreme Court evinced considerable respect for free exercise rights. After initially rejecting a church’s First Amendment claim against California’s COVID-19 assembly limitations impacting religious and other entities in May 2020, the Court decided in favor of the church just 6 months later.

These decisions illustrate the Court’s profound extension of First Amendment free exercise principles to negate existing public health emergency interventions.

In Roman Catholic Diocese of Brooklyn v. Cuomo, religious leaders challenged a gubernatorial executive order restricting the assemblage of persons at their institutions during the COVID-19 pandemic. In an unsigned 5-4 opinion on November 24, 2020, the Court suggested religious establishments were harshly treated compared to essential businesses. It determined New York’s order violated First Amendment free exercise principles despite strong public health justifications underlying the intervention. 

On February 5, 2021, the Court struck down a similar California ban on indoor religious ceremonies in South Bay United Pentecostal Church v. Newsom, which it approved just 10 months earlier. In her dissent, Justice Kagan lamented how the Court’s “foray into armchair epidemiology cannot end well.” Together, these decisions illustrate the Court’s profound extension of First Amendment free exercise principles to negate existing public health emergency interventions.

How Close Is the Supreme Court to Adjudicating a Right to Religious Exemption?      

Justices Gorsuch, Alito, Thomas, and Barrett have tried repeatedly since 2021 to secure the votes needed on the Court to hear additional cases challenging the scope or extent of religious exemptions to COVID-19 vaccine requirements. The Court has narrowly rejected reviews in a series of cases out of New York City, which has aggressively applied COVID-19 vaccine mandates to public school teachers and health care workers. Several cases involving military personnel facing dismissal or other repercussions for seeking religious exemptions to mandatory vaccines are percolating nationally.  

A case may soon break through, providing the Court the opportunity to opine via a regular decision or its shadow docket on the merits of religious exemptions to vaccines.

What Are Some Concerns if Religious Exemptions are Required?

Adjudications in lower court cases would change instantly if the Supreme Court determines Americans possess a broad First Amendment right to religious exemptions to vaccine requirements. And there may be little reason to question that outcome when the Court squarely takes on the issue. 

As noted, a majority of the Court already deems First Amendment free exercise principles sufficiently strong to curtail efficacious, public health emergency measures designed to tamp down deadly infectious diseases. It is no reach to suggest these same principles assure persons the freedom to choose whether to be vaccinated for any number of conditions. 

Remaining legal questions revolve around just how easy it may be for persons to exercise their religious freedoms to avoid vaccinations. Will the Court require individuals to demonstrate sincerely-held beliefs ensconced in affirmative religious doctrine? If so, the impacts may be limited. No major established religion in the United States suggests their followers should avoid vaccination. Most religions actually endorse safe and effective vaccines as a moral responsibility.

However, the Court may view free exercise principles so broadly that virtually any expression of religious beliefs could constitute constitutionally protected grounds for vaccine evasion, irrespective of specific creeds. Essentially, the Court may assert that the breadth of religious beliefs is personal in nature, paving the way for spikes in the national numbers of persons rejecting vaccines during COVID-19 and future public health emergencies, as well as routine risks from common infectious conditions. 

Is the Public’s Health at Significant Risk of Harm?   

If projected interpretations of First Amendment principles usher in religious exemptions to virtually all government-imposed vaccine requirements, communal health is at grave risk absent strategic counter-responses. Rates of vaccine opt-outs may increase overall along with preventable outbreaks of infectious diseases and associated morbidity and mortality.

How can these potential impacts be circumvented? Diminishing vaccine denialism is key. Reckless misinformation, government distrust, and contrarian political ideologies lead to widespread vaccine hesitancy, which, in turn, contributes to persons seeking vaccine exemptions on religious or other grounds.  Countering these trends, which far predate the pandemic, can alleviate unsubstantiated claims of religious exceptions. 

Properly balancing First Amendment freedoms with others’ interests in maintaining safe and healthy environments means that persons unwilling to be vaccinated may find their liberties and other interests restricted during outbreaks. Just because persons may acquire constitutional rights to reject vaccines on religious grounds does not mean they can place others at direct risk of harm. 

In the end, a new conception of vaccine mandates may be needed. What is proposed via mandates now (i.e., get vaccinated to avoid being denied access or benefits) may be repurposed as incentives tomorrow (i.e., get vaccinated to earn specific rewards). The latter approach was tried extensively in 2021 after initial reception of available COVID-19 vaccines tapered off nationally. Incentives to get vaccinated included everything from lottery tickets to gift cards to on site handouts. While vaccine mandates are subject to evasion through enhanced religious exemptions recognized by the Supreme Court, incentivizing vaccinations may become the default option. How far public health agencies and health care workers may have to go to increase the numbers of vaccinated Americans, especially those diametrically opposed to vaccinations, remains to be determined. ♦

James G. Hodge, Jr., J.D., LL.M., is the Peter Kiewit Foundation Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University, where he directs the Center for Public Health Law and Policy.

Recommended Citation

Hodge Jr., James G. “Constitutional Recognition of Religious Exemptions to Vaccination Requirements.” Canopy Forum, June 10, 2022.