Friday, February 18, 2022

Is It Unconstitutional Discrimination to Scrutinize Idiosyncratic Religious Claims More Closely Than Conventional Ones?

 by Michael C. Dorf

After Justice Sotomayor, who serves as the Second Circuit Justice, rejected an emergency application from plaintiff NYC Dep't of Education employees challenging a vaccination mandate, the plaintiffs refiled (as is their right) with Justice Gorsuch, who in turn referred the petition to the full Court for consideration at its March 4 conference. The case presents some procedural questions about whether the defendants and trial court have been complying with an earlier appeals court ruling in the case, but I mostly want to bracket those issues to focus on the core claim of religious discrimination.

As the Second Circuit found, the policy as originally written is neutral on its face; it provides no religious exceptions but neither does it provide exceptions on secular grounds that might be a baseline against which one could argue that the absence of religious exceptions is discrimination against religion. A teachers' union objected to the absence of religious exceptions, and following arbitration the policy was changed to permit such exceptions. The Second Circuit found that the revised policy to emerge from arbitration does in fact discriminate on the basis of religion by favoring religious beliefs that are blessed by an organized religion against those that are idiosyncratic.

Here's the key policy: "Exemption requests shall be considered for recognized and established religious organizations [but] shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature." As summarized by then-Mayor Bill de Blasio, if a NYC teacher, administrator, or staffer subject to the mandate is a Christian Scientist or Jehovah's Witness, they can get a religious exemption from the vaccine mandate, but given that the Pope has blessed the vaccine, Catholics cannot, nor can members of most other denominations and faiths, whose leadership accepts vaccination as consistent with religious doctrine.

Insofar as the policy is categorical--granting exemptions to members of faiths whose leadership decrees vaccination sinful but not to persons with idiosyncratic religious beliefs--the Second Circuit was clearly right that it amounts to religious discrimination. Supreme Court case law states that "the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect." The threshold questions are whether a belief counts as "religious" and whether the person asserting it sincerely holds it.

However, to say that idiosyncratic religious beliefs are protected is not to say that it should count as religious discrimination to subject them to somewhat more exacting scrutiny than applies to officially sanctioned beliefs.

If and when the Supreme Court considers the validity of the NYC schools religious exceptions policy, it will need to first ascertain what the policy is. If it is simply a categorical exclusion of idiosyncratic beliefs, then yes, that would count as religious discrimination triggering strict scrutiny. What about a slightly different policy? Suppose that a religious exemptions policy--whether from a vaccination requirement or some other obligation--used a pair of conflicting presumptions:

P1: Where a person who is a member of a faith claims an exemption based on a religious belief that is clearly endorsed by the leadership of the faith (including sub-units like a particular priest, minister, rabbi, imam or other faith leader of a congregation of which the person is a part), courts and other government actors should presume that the belief is religious and sincere.

P2: Where a person claims an exemption based on an idiosyncratic belief not endorsed by the leadership of any religious group that the person claims to be affiliated with, government (including courts) shall place the burden on the person to make a plausible showing that the belief is religious in nature and sincerely held.

Never mind how exactly one goes about defining what makes a belief religious or how one demonstrates sincerity in any particular case. Those are important questions about which courts and scholars have said a fair bit. How should we think about the disadvantage that holders of idiosyncratic beliefs face under P2? My tentative view is that the difference between P1 and P2 either shouldn't count as discrimination in the first place or should satisfy strict scrutiny.

If someone identifies a belief that is widely shared by co-religionists and endorsed by the religious leadership, absent evidence to the contrary, we have little difficulty in concluding that the belief is religious and sincerely held. It's true that someone could feign attachment to Islam or Judaism to get Halal or Kosher food, so the presumption under P1 is rightly rebuttable. But given how most cases will work out, the presumption itself is sensible.

By contrast, idiosyncratic religious beliefs are both potentially unlimited and, absent the presumption of P2, difficult to rebut as religious. If someone claims that their religion forbids them from wearing a mask in a hospital or requires sacramental cocaine use but can point to no religious authority for that view, it is a fair inference that they simply don't want to wear a mask or want to use cocaine recreationally and are falsely asserting a religious justification. Maybe not. But if we must apply something like the presumption of P1 to anyone who claims an idiosyncratic objection to legal obligations, we invite a flood of litigation. Some of that litigation will fail because the government will be able to satisfy strict scrutiny. But not all of it. And the very flood itself will be problematic.

I hasten to add that I agree with the basic proposition that idiosyncratic beliefs ought not to be automatically disqualified from counting as religious. I also should make clear that if I were writing a Constitution or perhaps even if I were interpreting our Constitution while writing on a clean slate, I would want to protect strongly held moral beliefs, not just religious ones. Indeed, it seems to me that there are some non-religious objections of conscience that make stronger claims for exemptions than do many religious objections.

However, so long as we have a body of First Amendment law that makes the religious nature of a belief key to triggering the non-discrimination obligation (and maybe to exceptions even absent discrimination, should the Supreme Court overrule Employment Division v. Smith), we will need to distinguish between sincere religious and other beliefs. The idiosyncratic nature of a claimed religious belief should not be by itself disqualifying but it should be legitimately relevant to whether the belief qualifies.