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.
24 comments:
Father James Martin has written about the importance of respect for GLBTQ individuals and has voiced the apparent inconsistencies (hypocrisies) of selectively denying them certain things while not doing the same for other people who also break Catholic doctrine. For instance, divorce is widely not allowed (the gospels' exact rules is a bit hazy), but those who re-marry are treated more kindly.
The alleged hypocrisy of people about their religious beliefs is a common argument. It is a thing, and it is motivated by animus in various cases. But, it also can be hard to parse. Is the choice animus or is it a sort of ranking that has a religious significance? To make things harder, religious belief regularly are not really separate from other things. They are a creature of culture etc. in various ways.
I think there is some ability to test sincerity in extreme cases. It will also, as noted, be something of a "nudge" for those with conscientious beliefs that they will honestly apply if pressed.
But, in practice, I think it will be hard. In one recent case, a lower court judge did find certain individuals as having insincere beliefs involving religious commands related to COVID. Some law professors were impressed. I was less so. I thought the rather brief analysis open to question. I was wary of relying on the alleged insincerity.
http://religionclause.blogspot.com/2021/09/court-says-objections-to-mask.html
I don't disagree that there is room to doubt the sincerity of some of these claims. But, again, it will be hard to draw lines there. It will regularly result in some subjective results that will turn on specific religions involved. "Familiar" inconsistency will be accepted. I would, if possible, rely on other rules such as harm to third parties, overall neutral rules, substantial burdens, and so forth.
Set aside, for the moment, the inconsistencies, the perverse logic, the phantasies, the self-deception and denial, as well as the fact that these very same people do not, in their everyday lives, let alone in public, come close to emulating or practicing the spiritual and ethical teachings of Jesus as found in the (especially synoptic) Gospels. In other words, their religious beliefs (that is, those of avowed right-wing evangelical Christians and some Catholics) rarely affect their behavior, their actions, their ethical orientation but now, save for political purposes fueled by the so-called culture war(s), have achieved salience. Thus, they seek exemptions for motley reasons ostensibly religious that, in effect, increase the risks that numerous others may get very sick and/or die from COVID-19. This is extremely self-centered or selfish and morally irresponsible and reckless behavior that justifies itself by putative appeals to religious beliefs and values that others have found irrelevant or without sufficient warrant, that is, all those other religious persons who have chosen to be vaccinated: “No leaders of a major religion have supported religious exemptions.” They habitually indulge in (politically and religiously) clannish if not cultish and pathological group behavior. This demeans and sullies Christianity, exemplifying the very sort of hypocrisy that Jesus himself often inveighed against.
I’m surprised that this argument doesn’t have more purchase with a Vegan, practically if not legally.
The US approach to religion is becoming entirely incoherent and dysfunctions since the current Supreme Court has decided to dump the very religion-friendly but at least operational approach articulated by (of all people) Antonin Scalia.
One the one hand, the current SCOTUS (and the entire tradition growing out of the various RFRA) want to create blanket exemptions from wide swathes of public law on the basis of 'sincere' religious conviction.
On the other hand, following the establishment clause, the same court insists that any consideration of the truth of any religious claim, the doctrine of any religion, or even if a particular claim is 'religious' in the first place, is untenable.
So, religious claims exempt individuals from the law, and any claim that an individual asserts to be 'religious' must be taken as such.
What could possibly go wrong with such a scheme?
To their intellectual credit, various secularists have been per formatively demonstrating the absurdity and also the fundamental dishonest of the Courts' claims. According to the doctrinal trend, courts should have to take seriously all claims from individuals who describe themselves as adherents of the Flying Spaghetti Monster religion. Of course, most courts don't actually do this, relying on the 'sincerity' issue raised above.
In a slightly different mode that further reveals the dishonest of the current situation, the Satanic Temple, a group that is not acting to simply make a point but rather to carry out their own religious beliefs, has been energetically pursuing the openings that the Court is establishing (but of course, finding that actual state courts are highly reluctant to allow such things as a Satanic monument next to a Ten Commandments monument -- showing how hypocritical the actual practice has been, and will doubtless continue to be.
Basically, without allowing the state to say "That's really religion, but that is not..." -- which inevitably constitutes a kind of 'establishment', there's simply no coherent way to decide how to exempt religious behavioral demands from secular law. Rather (as John Locke already argued long ago), the standard of 'indifference' that Scalia tried to establish as the US guidelines is the only rationally consistent approach. Locke's example was that a ban on sacrificing calves to please God is impermissible, but a ban on slaughtering calves because the nation's herd has been decimated by cattle disease, and which forbids all such slaughtering, can be enforced even on those whose religion generally requires the sacrifice of calves. It's possible to find contradictions in Locke's standard, of course, but it's a reasonable rule of thumb for courts to consider, far better than the farrago of mash-mash the SCOTUS has lately be emitting. Moreover, that farrago shows way more deference to Christian, and especially Catholic positions, than it does to others, thus performing an 'establishment' of its own, but dishonestly.
WWMBS (What Would Marie Barnett Say)? Conversely, how about Tammy Kitzmiller?
One is also reminded of excuses for racial discrimination purportedly rooted in religious doctrine, ranging from the overt "Established Church" interpretations in the Union of South Africa in the 1980s (this was a notorious sideshow in the brouhaha following Zola Budd's collision with Mary Decker in the 3000m event at the 1984 Olympics) to much close to home, both IRL and in fiction (consider the "Sons of Ham" thread in The Handmaid's Tale). In the lower courts in Loving v. Virginia, miscegenation laws were explicitly linked to religious doctrine.
This is why the contrast between West Virginia v. Barnett[e] and Kitzmiller v. Dover Area Schl. Dist. is not about "which constitutional provision is at issue" as much as it is about "whether the doctrine in question concerns a moral choice or a falsifiable choice." Barnett[e] concerned a moral choice; Kitzmiller concerned a falsifiable choice that attempted to impose a purportedly religious doctrine outside the scope of religious belief/conduct... and, therefore, is arguably not "free exercise" at all, any more than an ardent religious belief in heliocentrism allows denial of the Gregorian calendar and its legal consequences. Studying the history of science makes clear that "falsifiability" was not a clearly explicated concept the late eighteenth century, so the failure to consider it within the realm of "church and state" is at least understandable… and cannot be ignored Because Originalism-of-Some-Kind. Citing to Locke hardly meets this argument, any more than does demanding that eighteenth-century politics confront either complex falsifiable things like quantum mechanics (without which you wouldn't be reading this, since it originates on the 'net) or simpler ones like the Second Law of Thermodynamics and even the concept of a "molecule."
In short, the problem here is the definition of "religion," and who gets to say that a particular belief or action is "religious" in nature and therefore even within the realm of scrutiny of either the Establishment or Free Exercise clauses.
I am so glad you highlighted this unfortunate decision in your post. Let me share some thoughts.
First, I think the opinion that Title VII preempts New York's state anti discrimination laws has no real support in precedent. The statute itself contains an explicit provision stating it is not intended to occupy the field of employment discrimination, and courts have followed this view. Essentially, only when compliance with both a state and federal law would be impossible would a preemption arise, and even then, it depends on the facts of the case. Even if preemption had some arguable application, it would fail in this case on the facts because of the "undue hardship" provision. I am stunned that a physician would argue that his exposing vulnerable patients to COVID because of his desire not to be vaccinated would not constitute an undue hardship on any health care employer.
Second, I think the sincerity argument made by Professor Dorf has an easy analogue in the pretext law in Fourth Amendment cases (at least when that still existed in Fourth Amendment law...not sure how much viability it has now) or Batson claims. When the rationale offered seems but a pretext to do something the law would not otherwise provide, courts will not recognize the claim.
Third, I think the part of the opinion I found most disingenuous was its analysis under Smith and concluding the law is not neutrally applicable. The fact the law removed a religious exemption is not proof of prejudice, it is the opposite. Facially, this law requires every employee to get the vaccine. Nothing in its text is not neutral, let alone hostile to religion. Worse, the idea that strict scrutiny should be deployed to protect the doctor from having to get a vaccine because it tangentially offends his religious belief with respect to abortion but the lives of the patients with whom he comes in contact have a lesser claim to LIFE makes absolutely no sense. Dr. A literally argued to the court that he has a superior right to refuse vaccination and remain on staff and risk infecting vulnerable patients.
This case highlights how far afield we have come jurisprudentially with regard to the religion clauses. The Establishment Clause means, uncontroversially, that the government cannot establish a state religion or favor one sect over another. The Free Exercise Clause protects the right of conscience of every person of faith so long as that exercise does not pose harm or other constitutional interference to another. Under the current Supreme Court, the Establishment Clause does not exist, and the Free Exercise Clause has become a roaming affirmative protection for a certain set of religious beliefs. We are from the innocent days of trying to wear a yarmulke in the military or have a Sabbath observance without discrimination or providing textbooks to religious schools. We have long crossed the rubicon. Now, we have found Alice in Wonderland. Masterpiece Cakeshop wanted the right to discriminate on the basis of belief as to gay marriage. Dr. A wants the right to infect because of his belief as to abortion (btw does he not realize he violates that same belief every day in the hospital when he treats patients who surely have a medication or procedure that at some point involved stem cell research or other uses of fetal cells or tissue?). All of this doctrine forgets that the religion clauses are negative rights designed to protect religious comity and freedom of conscience, not positive rights to make others follow a certain faith demand. That is why compulsory prayer in school is still illegal (but for how long?)
Acts of conscience sometimes have consequences. Ask Kyrie Irving. Dr. A can follow the hospital rules or he can leave the hospital. It is no different than if he violated the hundreds of other rules of the hospital. That a court held otherwise shows that law and logic have lost the battle for the First Amendment, but hopefully not the war.
Thank you, Jason, that was helpful, and not only because I am on board with much of what you have to say here.
Thanks for all the thoughtful comments. One quick response to Unknown: Both Prof Colb and I have discussed the overlap between religious objections to complicity in sin and vegan objections to complicity in animal exploitation. Despite the fact that a very broad conception of complicity would potentially work to my benefit, I have resisted it as unworkable in a pluralistic society. See, e.g., https://verdict.justia.com/2017/11/01/troublingly-widening-gyre-complicity-claims
you are a commie bastard to impugn the religious.
Serious Question:
Would you have taken the COVID vaccine (I assume you have taken it, apologies if this is a mistake) if each dose required the death of a factory-farmed animal?
I think I can see both sides of this. A principled vegan stranded in the Andes might wear a leather jacket or eat meat to save their own life, but wouldn’t do those things in day to day life. On the other hand, your risk of death from COVID is probably significantly lower than your risk of death if you were to be stranded on a desert island.
(Also, correct if I’m wrong, but it would not be in conflict with your ethics to eat meat in a life or death situation? I am not making any judgment either way, but I assume the core ethic of veganism is to minimize unnecessary suffering, and a life or death situation changes the normal calculus)
My response to Unknown: (1) On the general point, yes, I'm not an absolutist. I think it wrong to harm or kill animals unnecessarily, which is how the vast majority are harmed or killed but inapplicable in extremis; (2) I am vaccinated against COVID and other diseases, partly because of my social responsibility, whatever moral qualms I might have in making judgments only about myself. Thus, while I might consider turning down, say, a heart valve taken from a live pig, a decision to get vaccinated or not affects others as well; (3) none of this has much to do with my sincerity, which is the subject of this post, and relates to the question when society should recognize a religious (or nonreligious moral) objection as an excuse from an obligation.
"Maine's Vaccine Mandate Without Religious Exemption Upheld"
Interesting district court case.
http://religionclause.blogspot.com/2021/10/maines-vaccine-mandate-without.html
I think one problem with evaluating religious beliefs is the assumption that the sequence goes like this:
1. Someone asked me to do X.
2. I considered the religious implications of X.
3. After the consideration, I have determined that my religion prevents me from doing X.
The above does sometimes happen, but in general, I think it usually goes more like this:
1. Someone asked me to do X.
2. I decide I don't want to do X.
3. I consider if there's a way I can interpret my religion in a way that forbids me from doing X.
4. If I can come up with a plausible interpretation, I decide that my religion prevents me from doing X.
For instance, if somebody REALLY wants to work on Sunday, because it gets them away from boring worship services and gets them a day off when the kids are at school, how likely is it that they are going to decide that their religion prevents them from working on Sunday, despite their desire to do so?
However, someone who enjoys the social atmosphere at church and wants to be home when the kids are home is far more likely to raise a religious objection to working on Sunday.
I'm not necessarily saying that this new way of thinking necessarily makes the religious beliefs insincere, but it does make them opportunistic. I also think this is one of the reasons why people's religious beliefs about secular items can be so inconsistent.
In the Catholic adoption example, I think it starts with "I don't want to allow gays to adopt." Then, the person decides on the best interpretation of their religion that allows them to prevent gays from adoption. If challenged, I think they would be just as happy to choose a different interpretation (say, that their religion requires animus towards gays specifically, and that they just hadn't considered it.
I'm not sure what the value of a sincerity defense really is. While I think a corporation claiming a religious objection to paying taxes could probably be challenged as insincere, I'm not sure it's as easy for an individual. Individuals are pretty good at convincing themselves of things (particularly subjective things) if they want them to be true. For a religious objection, that's pretty much all it takes for sincerity.
I think I should be clear, I'm not sure that most individuals consciously go through the above process as a way to be devious. They aren't happy with something, and they look to religion for guidance. When doing so, they have a confirmation bias in their scriptural interpretation that points them in the direction they already wanted to go.
@Greg
There's a lot of social common sense in your post. That said, I think that the entire framing of the question reveals how confused our current approach to treating religious obligation in a society with civil law really is.
In short, it seems to me that the current logic applied by the court largely negates the possibility of even raising the 'sincerity' question in any coherent way, certainly in the Supreme Court's more recent actions undermining the Lockean framework established by Scalia ("generally applicable laws"). Because the _content_ of religious ideas is off limits, all that was left for courts to look at was its pale shadow, 'sincerity', but such examination (as Mr. Dorf pointed out) is not really separable from the 'content' of the ideas involved.
The limit cases -- Flying Spaghetti Monster, Satanic Temple, etc. -- are useful because they highlight this. On what basis can judges or juries determine whether a religious 'objection' is 'sincere'? Consistency is not a strong basis, because many religious tenets are manifestly inconsistent with one another as well as with non-religious consensus reality. What happens in practice is that judges simply follow their own intuition as to whether a belief is sincere -- "You don't really believe in the Spaghetti Monster, you're just doing that to tweak the courts". And the intuition of the current SCOTUS is that Christian, and particularly Catholic positions are obviously 'sincere', whereas others, not so much.
Law-finding based on judges' intuition is not a great idea for a liberal society, I'd say.
(Side note: a European paper I subscribe to, the Neue Zürcher Zeitung, just ran a piece decrying the city of Cologne's permission to a mosque to perform the Muslim call to prayer under carefully limited circumstances as a 'grotesque' display of mistaken 'tolerance' because 'Any city in the West that allows such a call is betraying its own values'. That's at least a coherent position that privileges one religion over others in a nominally non-religious civil society (Christian churches ring their bells every Sunday morning to call the faithful to prayer, after all), though I find it a grotesque betrayal of liberal values (and wrote the paper to that effect)).
These issues are always going to be tough and tangled in extralegal contexts.
Great follow-up comments. Thanks for the really thoughtful discussion. FWIW, I was mostly just taking as given that sincerity is a threshold requirement. We COULD have a regime in which there's no inquiry at all into sincerity. Noah Feldman recently argued for such a regime. See https://www.bloomberg.com/opinion/articles/2021-09-14/religion-and-the-covid-vaccine-honor-the-right-to-say-no
But if there's no sincerity threshold inquiry, I would want a pretty high bar for actually allowing exceptions. Otherwise there will be too great an invitation to opportunistic invocation of religion.
A quick comment is that our history of individualism expands the breadth of idiosyncratic views.
Traditionally, you might have special exemptions or privileges tied to certain religious faiths. These could be seen as a sort of institutional benefit.
But, we have a system that is more individual right to conscience (originally seen as tied to some deity). Quakers would be a historical example where individual conscience was important. But, Protestants also came in made shape and sizes.
Greg's comment on human reasoning process fits in there. In another system, you could rely on an institution. Here, it is more open to idiosyncratic results. And, yes, something like the Flying Spaghetti Monster (or Universal Life Church ministers marrying people) seems a parody. But, maybe not on some level.
(And, to be clear, many do see the right to choose as an abortion as a religious choice in part. It isn't just the Satanic Church. For instance, Prof. Colb's latest Verdict column touches upon Jewish beliefs on personhood.)
Speaking for me personally, I think religious liberty is quite important & am troubled that the new SCOTUS path in fact dishonors it.
So per UCLA Health:
"No, the COVID-19 vaccines do not contain aborted fetal cells. However, Johnson & Johnson did use fetal cell lines — not fetal tissue — when developing and producing their vaccine, while Pfizer and Moderna used fetal cell lines to test their vaccines and make sure that they work.
Fetal cell lines are grown in a laboratory and were started with cells from elective abortions that occurred several decades ago in the 1970s-80s. They are now thousands of generations removed from the original fetal tissue. None of the COVID-19 vaccines use fetal cells derived from recent abortions."
Any attenuation already?
A general comment. I love the careful legal examination you and your colleagues undertake on issues of political import in the courts. But it strikes me as an increasingly academic exercise. Twenty or twenty-five years ago, legal scholars, appellate judges, and S. Ct. justices shared a common goal: to understand and explicate the objectively correct view of “the law” and its application (again, objectively) to new situations. That seems less and less to be the case, however, as concerns the federal judiciary (especially at the appellate and S. Ct. level). Starting with a fair number of W. Bush’s nominees, and accelerating with Trump’s, many – perhaps a majority of – right-wing federal judges appear no longer to view faithfulness to the law and precedent as a necessary goal in every case. Their actions seem increasingly consistent instead with the view that, if faithful application would lead to a politically-undesirable result, then I’m free either to: (a) change the law and say so; or (b) claim to be applying the law but, instead of doing so faithfully, interpret (i.e., bend) it in a way that achieves the desired result (which, beyond the political exigencies of the specific case, may also involve changing or emasculating doctrines that impede the “desirable” political result(s) in foreseeable future disputes). So I worry that posts like this one will have far less impact than they should (or would have in the past) in the development of the law. I’m lucky that I work in an area of the law (IP) that is as far from politics as an area can be (except maybe admiralty?), but I fear that increasing numbers of judges with this more political, more malleable, and less objective view of the law will result in a federal judiciary with a shallower understanding of the law generally, and that may have a long-term ripple effect in other, non-political areas.
Tom, It may be an effect of the availability heuristic or myopia (legal or otherwise) but one could quibble with your statement that IP law "is as far from politics as an area can be." Here is but a handful of titles which demonstrate that IP law is not that far at all from politics (despite appearances to the contrary or perhaps the scope your own praxis), indeed, one might plausibly argue that it is deeply entangled in same:
• Curci, Jonathan. The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (Cambridge University Press, 2010).
• Godoy, Angelina Snodgrass. Of Medicines and Markets: Intellectual Property and Human Rights in the Free Trade Era (Stanford University Press, 2013).
• Gosseries, Axel, Alain Marciano, and Alain Strowe, eds. Intellectual Property and Theories of Justice (Palgrave Macmillan, 2008).
• Mgbeoji, Ikechi. Global Biopiracy: Patents, Plants, and Indigenous Knowledge (Cornell University Press, 2006).
• Posey, Darrell A. and Graham Dutfield. Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (International Development Research Centre, 1996).
• Sunder, Madhavi. From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press, 2012).
• Warren, D. Michael, L. Jan Slikkerveer, and David Brokensha, eds. The Cultural Dimension of Development: Indigenous Knowledge Systems (Intermediate Technology Publications, 1999).
Hi Professor, Cornell Law student here who is a frequent reader and never commenter. I completely agree with your point on Lukumi. But, do you think there's more to be said on the general applicability point? That is, after Tandon v. Newsom, isn't the most-favored nation analysis: Step 1) what is the state interest being asserted? Here, it is stopping the spread of Covid-19. And does the state then exempt some groups but not others to whom the state interests apply equally? Here, from the state's perspective, those who are medically exempted are as likely to spread Covid as those who are exempt for religious reasons. And so by exempting those are medical and not religious, the law devalues the interests of the religious group relative to the secular one. In that way, the program is actually quite similar to the issue in then-Judge Alito's Fraternal Order of the Police v. Newark. There, Newark allowed medical exemptions to its requirement for police to shave their face but not a religious exemption for Muslim officers. And since the state's interest--professional looking police officers, I guess--applied the same to both the medical exemption and religious one, by only granting the medical exemption, it devalued the Muslim officers' religious interest.
Tom, in addition to what Patrick mentioned, I'd be curious if you think any of the following recent IP cases have at least a political component to them: Tam, Oil States, Arthrex, Allen v. Cooper (plus the various CAFC cases touching on state/tribal immunity in IPRs). I believe you had a front-row seat to the first one (Tam). :) For me, the answer is yes to all of them.
I'd also think pretty much any IP law case involving Monsanto seems to become political.
Another good one from Greg. Agreed.
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