Thursday, October 14, 2021

How Sincere are Religious Objections to COVID-19 Vaccination?

 by Michael C. Dorf

Under federal and state constitutional and other law, when a person claims some entitlement in virtue of a religious belief, neither courts nor other governmental actors challenge the truth of the belief, but in principle, they may question the sincerity of those beliefs. I say "in principle" because recent cases involving claimed religious objections to public health and other measures appear to take such objections at face value without properly scrutinizing them for sincerity.

Here I'll focus on Tuesday's opinion by Federal District Judge David Hurd in Dr. A v. Hochul, granting the plaintiffs' motion for a preliminary injunction against New York's application of its COVID-19 vaccination mandate for health care workers to ostensibly religiously scrupled plaintiffs. In the course of the ensuing discussion, I'll have occasion to observe that the truth and sincerity inquiries may not be entirely possible to disentangle.

Let's begin with the ruling itself, which is problematic in various respects. Judge Hurd rules for the plaintiffs on both their Title VII claim--which seeks a "reasonable accommodation" for their religious objection to the COVID-19 vaccine--and their constitutional free exercise claim.

The plaintiffs are right that Title VII's definition provision requires reasonable accommodations. The statute permits an employer to decline to accommodate where doing so would amount to an "undue hardship on the conduct of the employer's business." However, that test is less demanding than the strict scrutiny that applies to laws discriminating against religion.

Accordingly, one might think that the state's vaccine mandate is not pre-empted insofar as exempting religious objectors would impose undue hardship on medical facilities. The opinion circumvents that question by concluding that the NY vaccination mandate doesn't even permit consideration of religious accommodations in particular cases. There is something to that conclusion, but it's not clear why that justifies preliminarily enjoining the application of NY's health-care-worker vaccine mandate as to everyone claiming a religious exemption, rather than to religious objectors who have particularly strong grounds for their objections.

Meanwhile, the constitutional analysis is worrisome for a different reason. It treats the shadow docket decision in Tandon v. Newsom as having greatly expanded the category of laws that will be deemed to be targeted at religion and thus subject to strict scrutiny. Judge Hurd asserts that the state's recognition of medical exceptions from the vaccine mandates renders its failure to grant religious exceptions discriminatory. Yet the conclusion that medical exceptions pose the same risk to the state interest as religious exceptions is highly dubious. After all, part of the reason for the vaccine mandate is to protect people who are unable to be vaccinated due to medical conditions.

Judge Hurd also suggests that NY's vaccine mandate discriminates against religion because it formerly included religious exceptions. He calls the elimination of the religious exception provision "the kind of 'religious gerrymander' that triggers heightened scrutiny." That's odd, at least absent some showing that the reason for the elimination of the religious exceptions was hostility to religion. If the state was under no obligation to provide religious exceptions but did so anyway, the elimination of those exceptions is not, by itself, discriminatory. Of course, if the state was under some legal obligation to provide religious exceptions, then it is that obligation, not the elimination of a previously granted exception, that creates the violation.

In short, Judge Hurd's opinion is not very persuasive with respect to the core issues. It also appears to misunderstand the thrust of an argument the state offered. The plaintiffs say that they have a religious objection because the COVID-19 vaccine was developed using fetal stem cell lines derived from abortions. However, the state noted that other vaccines were developed in the same way and are also the subject of vaccine mandates without religious exceptions. Judge Hurd responds that there are differences in those mandates, which is fair, but also that the plaintiffs haven't challenged those other mandates, which seems backwards. Presumably, the fact that the plaintiffs haven't challenged any obligation to receive other vaccines derived from fetal stem cells from abortions undercuts the sincerity of their religious claim against the COVID-19 vaccine.

To be sure, the question of sincerity is ultimately one of fact to be resolved at trial, and it's not entirely clear that the state raised the plaintiffs' failure to object to other vaccinations as a challenge to the sincerity of their COVID-19 objections--but still: the plaintiffs had the burden of showing a likelihood of success on the merits, and Judge Hurd simply asserts that their religious objections are sincere. The failure to raise similar objections to other vaccines ought to cast at least some doubt on that assertion.

Before proceeding further, I want to acknowledge a risk of the ensuing analysis. As politicians and other opinion leaders mostly but not exclusively on the political right stoke sentiment against COVID-19 vaccination, there is a danger that they will increase opposition to vaccines against other diseases as well. Even before the current pandemic, anti-vax misinformation was responsible for the spread of preventable disease outbreaks. With substantial overlap between COVID-specific anti-vaxxers and the broader anti-vax movement, the problem is likely to worsen.

We might raise the same concern with respect to religious objections. If a court were to find, say, that a religious objection to COVID-19 is insincere because the person making it did not object to vaccination against rubella, even though the rubella vaccine was also developed using fetal stem cells that derive from abortions, there is a risk that the religious objections would expand. The religious claimants would "level up," as it were, and public health would be endangered to a greater degree.

Having acknowledged the risk, I shall nonetheless proceed, confident that my analysis will have little real-world effect. We now come to the issue I flagged at the top of this essay: Can the sincerity inquiry really be separated from a truth inquiry?

In many contexts, the answer is pretty much yes. For example, in a forthcoming article (Free Exercise in the Mirror), Professor Colb casts doubt on the sincerity of the Catholic agency that refused to evaluate same-sex couples to be foster parents in Fulton v. City of Philadelphia by noting all of the other sins that the agency did not deem disqualifying. Yet, "out of all the sins of married potential foster parents in which CSS would allegedly be complicit by endorsing their relationship," she observes, "only same-sex marriages made the cut." That selectivity suggests that animus against same-sex couples, simpliciter, rather than sinfulness, was the real motive behind the organization's policy.

Likewise for plaintiffs seeking religious exceptions to the COVID-19 vaccination requirement. Dr. A says that taking the COVID-19 shot will make him complicit in abortions. It is fair game to ask Dr. A why taking the rubella vaccine didn't also make him complicit in abortions. That's not a question about theology or religion. The religious belief is something like my religion tells me that taking a vaccine that was tested, developed, or produced using fetal stem cell lines derived from abortions makes me complicit in abortion, which is sinful. Asking why this belief applies to the COVID-19 vaccine but not other vaccines does not mean asking whether Dr. A is truly complicit in those abortions or whether abortion is truly sinful. The inquiry aims at sincerity.

Some answers Dr. A might give would be consistent with sincerity. He might say that when he got the rubella vaccine he didn't yet realize that vaccines implicated abortions. Or he could say that he only recently came to believe in the sinfulness of complicity in abortion via vaccination. If Dr. A gave either of those answers, and if he didn't take the other vaccines going forward, then he would establish his sincerity (although this response poses the risk of "leveling up" I identified three paragraphs up).

But note that the ability to cross-examine Dr. A's sincerity based on his other beliefs and actions rests on the particular form of belief he espouses. Suppose Dr. B says I cannot take the COVID-19 vaccine because I believe that COVID-19 is a test from God, whereas other diseases are not. Now the fact that Dr. B took other vaccines is irrelevant. A secular court or other government institution may legitimately ask whether Dr. B really believes that COVID-19 is uniquely a test from God but not whether COVID-19 really is a test from God. The difficulty is in finding a means of ascertaining what Dr. B really believes that doesn't naively accept whatever he says or risk venturing into religious truth territory.

So what stops people who want religious exceptions from reformulating their claims along the lines of Dr. B? Conscience perhaps in many cases. So too, people who are affiliated with mainstream religions may be reluctant to espouse what those religions deem heretical or even merely unorthodox views. It should be possible to cross-examine those people by pointing to inconsistencies. Unfortunately, neither of these limits applies to the person we worry about--someone who has a non-religious objection but is disguising it as a religious belief.

The inquiry is made more difficult by the general problem of proving insincerity without inquiring into truth. If someone says I believe X, the plausibility of X typically bears on sincerity. I know, I know. Millions of people sincerely believe in nonsense. They believe that the 2020 election was really won by Donald Trump, that climate change is a hoax, that COVID itself is a hoax, etc.

Still, if an otherwise functioning human being said A) I believe that my car needs an oil change and B) I believe that I can transport myself to Oz and back by clicking my heels three times, you would be likely to judge statement A sincere based on the fact that the "change oil" light on the car was illuminated, just as you would be likely to judge statement B insincere based on the obvious facts that Oz isn't a real place and clicking heels doesn't result in teleportation to real or fictional locales. Put differently, the truth or falsity of a statement generally has some correlation with whether someone who asserts that statement believes it.

Thus, the bar on inquiring into the truth or falsity of a religious belief sometimes hampers the ability to discern its sincerity.

Even pointing out inconsistency of espoused beliefs may be problematic. People often hold mutually inconsistent beliefs. For example, some people believe that the government shouldn't subsidize health insurance and that they're entitled to Medicare. Sure, you could say that someone who says such things really believes that the government shouldn't subsidize health insurance for other people, but that, it seems to me, gives too much credit. Even when confronted with all the facts and the logical inconsistency of believing both A and not-A, people will hold inconsistent beliefs.

In the preceding paragraph, I deliberately chose beliefs about a secular matter, but of course people also hold inconsistent beliefs about religion. Many people believe: (A) God is omniscient; and (B) the Bible is the literal word of God. But if God is omniscient, oughtn't He to have known something about evolution and cosmology beyond what the people living thousands of years ago knew? One can get around the problem by saying that people wrote down God's word and made transcription errors based on their own historical context, but that contradicts (B). Young-Earth creationists and their ilk can reconcile (A) and (B) by disbelieving modern science, but I'll venture that there are nonetheless millions of people who believe (A), (B), and also various propositions that are known to us only through modern science and thus contradict (A), (B), or both.

Accordingly, it is not always possible to use the inconsistency of religious belief as a basis for challenging the sincerity of that belief, because this strategy sometimes comes perilously close to challenging the truth of the underlying religious claim. Combined with the Supreme Court's eagerness to expand what counts as religious discrimination, this difficulty and the others discussed above make it increasingly likely that increasingly extravagant religious exceptions claims will be accepted by the courts.