Hebrew Voices #137 – Religious Exemptions for Covid Vaccines

Dr. Nehemia Gordon - Bible Scholar at NehemiasWall.com

English - December 16, 2021 12:00 - 30 minutes - 42.1 MB - ★★★★★ - 313 ratings
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The post Hebrew Voices #137 – Religious Exemptions for Covid Vaccines appeared first on Nehemia's Wall.

In this episode of Hebrew Voices, Religious Exemptions for Covid Vaccines, Nehemia Gordon talks with Prof. Michelle Mello about the legal status of “sincerely held religious beliefs”, what is happening in the US court system, and what we can expect from the Supreme Court. They also discuss why pro-abortion advocates do not apply “my body, my choice” to vaccinations and how “public health advocates” justify banishing law-abiding citizens from the workplace. Finally, they consider whether a future HIV vaccine would be mandated for those with high-risk lifestyles and how that scenario might be different from Covid mandates.

I look forward to reading your comments!

CHAPTERS
00:00 Intro
01:35 Covid vaccine religious exemptions
04:07 Sincerely held religious beliefs
09:28 Religious exemptions vs medical exemptions
13:16 NGLA laws vs strict scrutiny exemptions
19:20 Laws which incidentally effect certain religions
21:59 My body my choice vs personal liberty and security of others
25:07 Denying “benefits” (=human rights) to mandate vaccines
29:16 Conclusion

Podcast Version:

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Transcript

Hebrew Voices #137 – Religious Exemptions for Covid Vaccines

You are listening to Hebrew Voices with Nehemia Gordon. Thank you for supporting Nehemia Gordon's Makor Hebrew Foundation. Learn more at NehemiasWall.com.

Nehemia: Shalom and welcome to Hebrew Voices. Today I will be joined by Professor Michelle Mello of Stanford University, who will talk to us about the legal status of forced Covid-19 vaccine mandates in the US court system.

Michelle Mello is a professor of law at Stanford Law School and professor of health policy in the Department of Health at Stanford University School of Medicine. She conducts empirical research, according to her biography, into issues at the intersection of law ethics and health policy. She's the author of more than 220 articles on medical liability, public health law, the public health response to Covid-19, pharmaceuticals and vaccines, biomedical research ethics and governance, health information privacy, and other topics. Dr. Mello teaches courses in torts, public health law and health policy. She holds a JD from the Yale Law School, a PhD in health policy and administration from the University of North Carolina Chapel Hill, a Masters of Philosophy from Oxford University where she was a Marshall Scholar, and a bachelor's degree from Stanford University.

So join me now to have a conversation with Professor Mello.

So I want you to present what is going on in the courts right now with the Covid exemptions. And here we have Professor Michelle Mello, who is a professor at Stanford, who is maybe the foremost expert on this topic. What actually is going on?

Professor Mello: Well, there is just a barrage of litigation going on at all levels of the courts right now relating to Covid vaccination mandates, and much of this concerns questions about the extent to which the targets of these mandates are entitled to religious exemptions.

So there are people protesting mandates that don't have a religious exemption process at all. There are people who have applied for religious exemptions and been denied, who are protesting the process or the scope of the exemption that their institution has implemented. And then there are people who are just kind of attacking mandates more frontally, and among the claims that they're bringing, in saying that these mandates are kind of unconstitutional on their face, is that they treat religious exemptions differently than other kinds of exemptions like medical exemptions, pregnancy exemptions, in a way that is unconstitutional.

Regardless of the kind of the flavor of the claim that is being brought, I would say that the fighting boils down to three topics, all of which I think are heavily contested, and all of which are pretty uncertain at the moment, and the key reason why they're uncertain is that because of changeover in the composition of the courts during the Trump administration, our long-settled understandings of the scope of religious liberty and the way in which courts are going to analyze religious liberty claims have really been upended. And we've had a couple of Supreme Court decisions in the last year that have announced a different approach, but it's not yet clear how that approach will be applied to vaccination mandates.

So all of what I'll talk about is very unstable at the moment, yet to be resolved, and the Supreme Court so far has been kind of rebuffing attempts to get directly involved in this issue, but it's not clear to me that they will be able to do that for very much longer, because of the degree of disagreement among lower courts.

So there are three issues that are being litigated, that I think are unstable. The first is what constitutes a "sincerely held religious belief." You know, a lot of people allege that they have religious exemptions to vaccines, and the courts have to decide whether the nature of their belief is religious and also sincerely held, that's kind of the long-standing standard for what qualifies for constitutional protection.

Specifically, what is at issue here is what happens when you're a member of a church or other religious denomination where the religious leaders have given no indication that they oppose Covid vaccines on religious grounds, but you think your personal beliefs require you to reject it.

So for example, there is a case in Massachusetts where a Catholic athlete who's a student at UMass has challenged a vaccination mandate saying that as a Catholic she cannot accept Covid vaccines. One of the reasons that Catholics object to them is that, deep back in the development process for the vaccines - not in the manufacturing process, but way back when the vaccines themselves were being developed - fetal cell lines were used.

So UMass, in dealing with the student’s request, researched Catholic beliefs. Religious leaders in the Catholic Church have come out very clearly, very explicitly saying that the Church does not oppose its members receiving the vaccines, but this student feels like her interpretation of Catholicism is that she shouldn't receive the vaccine. So this is the type of claim that's being litigated, and courts so far have kind of split on what to do about this type of claim. The Second Circuit Court of Appeals and at least one federal district court have held that a member of a religious denomination can assert their own interpretation of religious doctrine, as long as they sincerely believe it, and they cite a Supreme Court decision that certainly seems to be along those lines. At least two other lower courts have held otherwise, including that case involving UMass.

So this is going to be a really important issue, because a lot of people during Covid are nesting objections to Covid vaccines in religious terms, in religious exemption processes. The proportion of Americans who are resistant to this vaccine, as you well know, is far higher than for any other vaccine, and people who have long accepted other vaccines now suddenly have a religious exemption to vaccination.

So the breadth that courts give claims that okay, yes, now I have a sincere religious belief, it's going to be really important to the effectiveness of vaccination mandates. A lot of churches have also kind of jumped into the fray issuing generic letters for parishioners that claim that the church has an objection to Covid vaccines - again, when the church has never objected to any other vaccines. So the extent to which courts are going to scrutinize claims of a sincere religious belief is going to have a big impact on how many people are able to wiggle out from under vaccination mandates. And again, at this point it's just not clear how this conflict among the courts is going to be resolved.

Nehemia: The Catholic example is a really interesting one, because it's inherently a hierarchical religion. My religious affiliation actually has a core principle that each person needs to figure out their own understanding of the Bible. And so, you could have one person who says, "No, it's forbidden to have the vaccine,” another person who says, "No, it's required to have the vaccine because it's a matter of life and death.”

But the Catholic example you brought from UMass, it's inherently... I mean, they have a Pope, right? So that's actually an extreme example, and even there the court, you're saying, is saying that this person has the right to work out their own... to quote Paul of Tarsus, "To work out their salvation with fear and trembling for themselves.”

Professor Mello: Yeah, I think to many Catholics this is surprising to hear, that they're kind of on their own to interpret religious doctrine. As you say, it's not a religion where we ordinarily think in that way. But the rulings have more to do with how the courts view religious liberty, than how any church does, which is to say... these are courts saying, "Look, we're hands off, we're not getting into the business of looking behind assertions about religious liberty; we're going to give it kind of a wide berth for people to figure it out.”

Nehemia: Do you think that's a bad thing, as a legal expert?

Professor Mello: Well, you're talking to a public health advocate whose life has been upended - professionally as well as personally - by the epidemic, and thinks that vaccine mandates are necessary. So yeah, as a policy matter in this case, I think it's a bad thing. You know, the courts have to consider these religious liberty claims not only in terms of the policy impact right now for this case, but for all future cases. And so, they're going to be viewing it from a different perspective than a public health advocate.

Nehemia: Okay. So that was your first...?

Professor Mello: Yeah, the second one is even more interesting to me, and it's the question of whether... if you're going to do a vaccination mandate as a state actor or a government actor, let's say you're a school district... If you offer a medical exemption, do you also have to offer a religious exemption?

Up until this year, no person who studies public health law would have said the answer is yes. It just has not been part of any... certainly any Supreme Court ruling, and also any lower court ruling, that a religious exemption is constitutionally required. But what has happened is that the Supreme Court has issued a couple of rulings that call that into question. One - and maybe the most important one - is this case called Tandon from last year, which had to do not with any vaccination mandates, but with California's stay-at-home orders, which restricted the ability of people to gather indoors, even in private homes, in numbers greater than three households, and which have the incidental effect of burdening religious worship, because people wanted to gather, for example, for Bible studies in their private homes, and were not allowed to do that. And in the Tandon opinion, the US Supreme Court said very clearly that a state cannot treat any comparable secular activity more favorable than religious activity. And what it meant by "comparable” was that it posed a comparable risk of spreading Covid.

So that raised the question for a lot of people, "What do they mean by ‘comparable activity?’” Does that mean that if you offer an exemption to a vaccination mandate for secular reasons, like medical contraindications, you also have to treat religious exemptions kind of on the same terrain? You can't privilege a secular reason for exempting out of a vaccine above a religious reason.

On that basis, recently the Ninth Circuit Court of Appeals out here on the West Coast granted an emergency motion for an injunction against San Diego Unified School District's vaccination mandates for high school kids aged 16 and over, because it did not allow for any religious exemptions, but it did have an exemption based on pregnancy. The reason why they would have such an exemption to me is very unclear – as a sort of medical matter that's really not a thing, but that's what they chose to do. And it got them into some legal hot water because of this comparability issue.

So in that case, the school district can go back, they can just fix that problem with a Band-Aid, just make the students get the vaccine, but it raises a larger issue that I think is going to come up again and again.

Some conservative justices on the US Supreme Court - Justices Gorsuch, Thomas and Alito wrote in a dissenting opinion as recently as October 29 of this year that they think that Maine's vaccination mandate for health care workers is unconstitutional because it doesn't have a religious exemption, yet does have a medical exemption.

So in that case, the majority of the justices declined to issue a full opinion in the case, but there's this loud and consistent pressure from the conservative majority, particularly justices appointed in recent years, who are very strong proponents of religious liberty, to make such a holding, and it would not surprise me if such a holding eventually came. And that would be, again, a major upending of how we have thought about what public health authorities can do.

Nehemia: Okay, and what's the third issue that you're dealing with?

Professor Mello: The third issue is related, but it's a little bit more technical, and it has to do with the way in which courts evaluate religious liberty claims. Historically, if you have had a vaccination mandate that applies to everybody, the courts have treated that as what they call a Neutral Law of General Applicability - an NGLA. And if you have an NGLA, when somebody challenges it, the court will apply rational basis review, which is its lightest form of review, and the court will ask only, "Is this thing that the state wants to do - this vaccination mandate - reasonably related to a legitimate interest of the government?”

Nehemia: Can you explain the NGLA thing? You lost me…

Professor Mello: Yeah, it’s a neutral law of general applicability; the court is deeming this to be a general law that applies to everybody, it's not targeting religion.

Nehemia: Oh, okay.

Professor Mello: On their face, that's what vaccination mandates are. They say all healthcare workers, or all adults, or all school children, all teachers. They don’t say “all Jewish people”.

Nehemia: So if it doesn't target religion then you're allowed to do it even though it affects religious people?

Professor Mello: Yeah. If it doesn't target religion, if it's neutral and generally applicable, then the presumption is it's going to be okay. And the way the courts implement that presumption is to give this very light look, this rational basis review. And they basically ask, "Is this crazy?” It's not crazy. There's a reason for doing it, and the thing that the state is trying to do is of some importance, certainly stemming the spread of Covid would qualify. That's going to be okay.

Okay, so that's the traditional approach. What has happened recently, because of this case of Tandon out in California that we talked about, and another case called Fulton, that the court decided in June of 2021, is that that presumption that you're going to get rational basis review is under a lot of pressure. This case of Fulton didn't involve anything to do with Covid. It had to do with adoption of children in Philadelphia by same sex couples and whether you could discriminate based on religious preference. But the key thing about that case is that the court held that a rule is not an NGLA, not a neutral law meriting this rational basis review, if it contains a process for granting individualized exceptions or exemptions.

Nehemia: Explain that again.

Professor Mello: If you've got a rule that says, "Here's this general rule, but there's going to be a process where you can apply for an exemption, and the state will consider, a city will consider those requests on an individualized basis.” Now that's not generally applicable anymore.

Nehemia: And so, an example of an exemption would be like a medical exemption?

Professor Mello: It could be. I mean, in this case, it had to do with adoption, so there was a process for getting a waiver of a general rule that somebody wouldn't be eligible to adopt. So since that decision came down, people in public health law said, "Uh oh, does that mean that now if we have a process for a medical exemption where the people's claims are going to be considered on an ad hoc basis? I think I shouldn't get the vaccine because I have an immunodeficiency and so I apply for a medical exemption and there's somebody in the health department that is going to read my request and make a decision on it.” That seems like the kind of thing that the Fulton court was contemplating, and if it is, that means that any such mandate is not going to get rational basis review; it's going to get something much more stringent called strict scrutiny, which is almost always fatal to what the government is trying to do.

Nehemia: Okay, the opposite of the rational basis review - is strict scrutiny.

Professor Mello: Yeah, so in that case, the state has to show they have got a compelling interest, which, again, stemming Covid is, the Supreme Court has already said so. But also that the law is what the court calls narrowly tailored, meaning there's no way to achieve the state's purpose that is less burdensome on individual interests, in this case religious liberty.

So what does that mean in practical terms? It means that possibly, vaccination mandates that contain any individualized exemption process, whether it's medical or something else, might get strict scrutiny, and the state would have to show that it can't stem Covid through other means, whether it's granting a broader set of exemptions or saying to people, "Well, you don't want to get vaccinated, you could wear a mask and test twice a week instead.” And that's going to be really difficult for the state to do.

So that's the fear. Again, this is all very uncertain terrain, and the lower courts are giving us mixed signals about whether they're going to take this approach or not. There have been circuit court cases, court of appeals cases, kind of taking different approaches.

But on November 28 of this year, a panel of the Second Circuit Court of Appeals said that New York City's school employee mandate, which considers requests for both religious and medical exemptions, would still be considered neutral, even though it has this individualized process, as long as it was careful to define very objectively defined and verifiable categories of people who could be exempted, didn't look too individualized.

So we don't know what's going to happen, but a possible outcome is that you get strict scrutiny whether you have religious exemptions or not, because if you have them, now that kind of looks like an individualized exemption process that would trigger strict scrutiny. And if you don't have them, then under Tandon that looks like you are treating non-religious reasons more favorably than religious reasons, and so it's not neutral for that reason, and so you're back in strict scrutiny land. And if you're back in strict scrutiny land, I think it will be hard to sustain these mandates.

Nehemia: Okay. Now, I come from a very different background. I'm not a public health advocate, I deal with history. And when you mentioned this NGLA, it triggered for me something. We're in December 2021, and we just ended the holiday of Hanukkah, the Feast of Dedication that Jews celebrate. Hanukkah was triggered by this law that the Seleucid Greek Empire imposed, that every citizen, no matter who they were in their empire, needed to participate in a sacrifice to the Greek god Apollo by eating a pig. And Jews revolted, because they said, "We can't do that.” And the Greek response was, "But this wasn't targeted at you. Be loyal to the empire. You’re a citizen, follow the law.”

So I know some people in my audience are thinking, "Yeah, you're not targeting us as Jews, as Christians, people from other backgrounds who are listening, but it affects us in the way that it doesn't affect someone who's secular, who's maybe from a religion that doesn't have some of those restrictions.” So how would you respond to that?

Professor Mello: Yeah, well, the historical example you gave is really interesting, that might support a second kind of religious liberty claim, which is that the state also can't adopt laws that effectively establish a certain religion by requiring the practice of that religion, or clearly favoring one religion over another.

Nehemia: Fair enough.

Professor Mello: But the more general point you make is that lots of laws have the incidental effect of burdening a certain type of religious practice, and the court is very experienced in evaluating those claims. And that is the whole reason why we have this category of NGLA laws that comes from a case - again, not about public health - called Employment Division v. Smith, where employees are objecting to various workplace rules that incidentally burden people who want to practice their religion on certain days of the week, for example.

And this is the balance that the court has struck, just to recognize that we're not going to hamstring the state or cities in all kinds of rulemaking that they have to do that happens to affect members of one religious sect over another, as long as those are reasonably related to a legitimate purpose.

And the question now is, you know, is that standard too low? Should we in fact be giving greater respect to burdens on religious liberty that are not intentional, not undue, but that exist, by giving courts more berth to scrutinize the necessity for those burdens.

Nehemia: Okay. You know, there's this motto in certain circles, “my body, my choice.” I've now heard a lot of people, for example, Senator Ted Cruz, who has adopted that motto - and he's been vaccinated - but he says it should be up to the choice of the individual, just like it is in Roe v. Wade. So what would your response to that be?

Professor Mello: Well, this is, of course, not a claim that is based in religion, it's just as a sort of personal or even political philosophy.

Nehemia: But based in ethics, I would think.

Professor Mello: Yeah, and it's based in a notion of libertarian ethics, or classical liberal ethics that places a heavy primacy on personal autonomy. And there's no doubt that is a critical part of our nation's moral founding - the notion that individuals ought to have a very substantial share of personal freedom.

However, classical liberals and even libertarians have always recognized that our right to individual liberty stops right at the point where it begins to infringe on the personal liberty and security of others. So we don't have a freedom to assault one another, and we don't have a freedom to spread contagious disease, we never have. That's always been the boundary of individual liberty.

So it's surprising to hear conservatives, who have long subscribed to this particular view of personal autonomy, saying that the right to bodily autonomy extends to the right to impose harms on others. It's very surprising. It's out of step with both conservative and liberal thinking, of long vintage.

Nehemia: Okay. And can you say something about... the example that comes to mind for me is Typhoid Mary, who ended up being isolated for 30 years because she was an asymptomatic carrier of typhus. I don't know that anybody would say- well, she has the right to go and continue being a cook because it's her liberty, right?

Professor Mello: That's right. And to take a modern analog, if suppose we had an unhoused individual with active tuberculosis roaming around the streets of San Francisco.

Nehemia: I think you have a lot of those in San Francisco, actually.

Professor Mello: They are there. I suspect that people like Mr. Cruz would not say that that individual should be at liberty to do whatever they please on the streets of San Francisco. They would likely support a public health order that requires that individual to take tuberculosis therapy drugs or to be confined until a period where their active infection reaches latent status and they're no longer infectious.

So again, I think this is political rhetoric that's being deployed for a political gain. It doesn't reflect well-reasoned thinking about public health and liberty, because even those individuals don't believe that in absolute terms. They surely would not support the right of somebody with Ebola virus disease or even Covid to roam around and infect others.

Nehemia: Let me ask you another application, which is, I suppose, hypothetical at this point. But if they were to develop an HIV vaccine, would you be in favor of a government mandate forcing that on... I'll just say, high risk groups who are of high risk to spread that?

Professor Mello: You know, I think I would have to think a lot more about that what we mean by "high risk" and how that can be...

Nehemia: Let's say intravenous drug users who we know they're intravenous drug users, they can't control themselves, they can't help it. Should they be forced...?

Professor Mello: Well, I think in that specific example, whether I think they should have the vaccine is quite different from the question whether and how I would force the vaccine on them. That is a group that is unbelievably difficult to reach, and things that are coercive tend to undermine our ability to reach them. So while I'd certainly support a program that would bring that vaccine to them... One thing we have to keep in mind about mandates is they have to be enforceable. Mandates have to be enforceable. And we don't hold people down and inject people in this country. That's not what we mean by mandates. We never do that.

What we do is condition access to some benefit on receipt of the vaccine, on complying with the mandate. So what are the benefits that we have to offer? School entry, employment, government welfare benefits – these are the kinds of things that are available to us, and this particular population that you’re talking about here, they don’t tend to avail themselves of any of those benefits.

So again, reaching them is really hard, and if we can enforce a mandate, it does us no good. It just tends to alienate a population without achieving any of the benefit. So for that specific example, I would want to think about what other tools we have at our disposal to reach a population that does not want to have HIV, would likely accept that vaccine, but a requirement may not be the best way to connect them with the vaccine.

Nehemia: Maybe I'm saying something extreme here, but if people opposed to the vaccine responded in extreme ways to these government mandates, you're saying you would drop the request for the government mandate, it sounds like, right?

Professor Mello: So that's the rub when we think about extending even Covid vaccine mandates to the general adult population. I think it's well-justified on ethical grounds, but I worry about our ability to enforce that mandate. Again, we have to have a lever, so what's our lever? With Covid vaccination mandates we have basically two levers if you're not in school. One is you can't get into places unless you've been vaccinated. I think that's a pretty nice lever in terms of restricting access to concerts or restaurants. But if people who are really committed to not getting the vaccine will simply say, "Fine, I haven't eaten in a restaurant in a year, I'll just keep not eating at a restaurant.”

The other is employment, and I think that has proved to be a pretty powerful inducement. I think it's justified, but there will still be a group of people who are hardcore resistors, who even those two levers are not going to be sufficient to get them into the vaccine.

So then the question is - do we undermine things more by imposing this vaccine, recognizing that we're not going to get that entire group? You know, I'm still sort of thinking that over. I think there's no doubt that these mandates have provoked a backlash that has hardened people who are otherwise disinclined to get the vaccination. There's a group that's never going to be reached with these mandates, but does that mean we shouldn't do it for everybody else? Probably not. We're at the point where we have a vaccine that is amply justified in terms of its safety record, very good safety record, very, very good efficacy record. I think that justifies imposing it on people, but I'm not naive enough to think that that means we're going to get everybody. There will be a group of people who simply don't get it.

Nehemia: Well, Professor Mello, thank you so much for joining me on the program and clarifying some of these issues. It's really hard to get accurate information about what's going on, and obviously, you have your perspective of what you want to happen. But what I wanted the audience primarily to hear is what actually is happening and what could potentially happen. And I think my takeaway from what you're saying is we don't really know where this is going to go. Is that fair to say?

Professor Mello: Yeah, we don’t know but it’s going to be an interesting year.

Nehemia: It will be. Alright, thank you so much.

Professor Mello: Thanks for having me.

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The post Hebrew Voices #137 – Religious Exemptions for Covid Vaccines appeared first on Nehemia's Wall.