Last term the newly empowered conservative majority on the Supreme Court demonstrated to all that precedent is not so precedential, even when it had stood for nearly fifty years.  They very nearly did it again, but just missed, targeting precedent on religious exemptions and vaccine mandates that has been around for more than twice as long.

As we pointed out here and here, for well over a century, since Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), no appellate court has ever held that any governmental vaccine mandate must contain a religious exemption.  Jacobson affirmed a vaccine mandate with criminal penalties and no exemptions at all.  But that was 1905.  In 1922, a similar claim about mandatory vaccination of school children was rejected due to “settled [law] that it is within the police power of a state to provide for compulsory vaccination.”  Zucht v. King, 260 U.S. 174, 176 (1922) (Brandeis, J.).  Then, in Prince v. Massachusetts, the Supreme Court declared that “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”  321 U.S. 158, 166-67 (1944).  Most recently, the Court stated that “compulsory vaccination laws” are not subject to “strict scrutiny” through “[t]he First Amendment’s protection of religious liberty” in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 888-89 (1990).

As we discussed in those two posts, the Court’s observation in Prince was prophetic.  Not too long before COVID-19, the misconduct of anti-vax religious sects in both New York and California was directly responsible for measles epidemics that threatened the public health.  The legislatures in both those states responded by abolishing the religious exemptions that those sects had abused.  Predictably, the anti-vaxxers sued, claiming that their “sincerely held” beliefs meant they could constitutionally infect the rest of us with potentially deadly diseases.  Predictably, they lost.  E.g., Love v. State Dept. of Education, 240 Cal. Rptr.3d 861, 868 (Cal. App. 2018) (case “involves the removal of an exemption that is not required under the law”); Brown v. Smith, 235 Cal. Rptr.3d 218, 226 (Cal. App. 2018) (“states may impose vaccination requirements without providing religious exemptions”); F.F. v. State, 143 N.Y.S.3d 734, 741 (N.Y.A.D. 2021) (“the religious exemption previously created a benefit to the covered class, and now the elimination of the exemption subjects those in the previously covered class to vaccine rules that are generally applicable to the public”); C.F. v. New York City Dept. of Health & Mental Hygiene, 139 N.Y.S.3d 273, 291 (N.Y.A.D 2020) (“the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability”); W.D. v. Rockland County, 521 F. Supp.3d 358, 405 (S.D.N.Y. 2021) (“New York’s religious exemptions went beyond what the Constitution requires”) (citation and quotation marks omitted); Doe v. Zucker, 496 F. Supp.3d 744, 759 (N.D.N.Y. 2020) (“the public health concerns in maintaining high immunization rates for vaccine-preventable diseases and in avoiding outbreaks of communicable diseases provide ample basis for the newly enacted regulations”); V.D. v. State of New York, 403 F. Supp.3d 76, 87 (S.D.N.Y. 2019) (“a state is not required to provide an exemption to mandatory vaccination laws for parents who object to the law’s requirements on religious grounds”); Whitlow v. California, 203 F. Supp.3d 1079, 1084 (S.D. Cal. 2016) (“the Constitution does not require the provision of a religious exemption to vaccination requirements, much less a PBE [personal belief exemption]”).

Thus, when COVID-19 hit, New York and California (and other states as well) had laws in place to prevent anti-vaxxers from asserting religious beliefs – whether real or feigned – in order to sabotage state-law vaccination mandates.  Based on over a century of precedent, reinforced by the recent measles-related litigation, the anti-vaxxers lost again.  E.g., Doe v. San Diego Unified School Dist., 19 F.4th 1173, 1179 (9th Cir. 2021) (religious vaccination exemption would “undermine [defendant’s] asserted interests in student health and safety”); We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 287 (2d Cir. 2021) (“if accepted, Plaintiffs’ arguments would go beyond just being inconsistent with past practices: they would have potentially far-reaching and harmful consequences for governments’ ability to enforce longstanding public health rules and protocols”); Dr. A. v. Hochul, ___ F. Supp.3d ___, 2022 WL 548260, at *6 (N.D.N.Y. Feb. 23, 2022) (“even assuming one or more plaintiffs were actually denied unemployment insurance based on their refusal to be vaccinated . . ., the burden would then fall on plaintiffs to demonstrate that the State singled out religious objectors (as opposed to those who might have refused vaccination on other grounds”).

However, it appears that at least three of the Supreme Court’s precedent-pulverizing justices are interested in doing away with the century-plus of precedent rejecting religious exemptions to state vaccine mandates.  On the last day of the term, Justices Thomas, Alito, and Gorsuch dissented from the Court’s denial of certiorari in the aforementioned Dr. A appeal from New York.  Dr. A. v. Hochul, 142 S. Ct. 2569 (2022).  Indeed, with respect to two of the plaintiffs in that litigation – Catholics claiming to be more Catholic than the Pope (since Pope Francis is vaccinated and supports vaccination as a “moral obligation”) – the same three were willing to go so far as to enjoin New York’s vaccination effort unless it allowed the sort of religiously-based sabotage that all prior appellate vaccination precedent rejected.  See Dr. A, 142 S. Ct. at 552-53 (2021) (two “Catholics” rejecting COVID vaccination, notwithstanding Pope Francis).

The three-justice dissent in We the Patriots USA, Inc. v. Hochul, 142 S. Ct. 734 (2021), questioned the above-described precedent – on the ground that failure to give “religious” anti-vaxxers preference over non-religious anti-vaxxers somehow uniquely burdens religious belief.

[T]here remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves.

Id. at 2570.

What is the “exemption” these three are complaining about?  “The New York mandate includes a medical exemption but no religious exemption.”  Id. at 2571 (emphasis added).  Under that reasoning, unless a state is prepared to force vaccines on those (such as people with an allergy) it would physically harm – then the state has to provide a broad religious exemption as well.  To us that’s the same kind of stark disregard for people’s health that motivates abortion bans with no “life/health of the mother” exceptions.

To gin up some sort of circuit split the three dissenters cite various cases – none of which have anything to do with vaccination (as we mentioned above, vaccination precedents are unanimous).

The pro-strict scrutiny cases are:  Monclova Christian Academy v. Toledo-Lucas County Health Dept., 984 F.3d 477, 482 (6th Cir. 2020) (closing all schools, including religious ones, but letting non-educational businesses stay open); Midrash Sephardi, Inc. v. Surfside, 366 F.3d 1214, 1234-35 (11thCir. 2004) (zoning ordinance excluding churches); Fraternal Order of Police v. Newark, 170 F.3d 359, 365-66 (3d Cir. 1999) (police no-beard requirement); Mitchell County v. Zimmerman, 810 N.W.2d 1, 15-16 (Iowa 2012) (forbidding anyone, including religious dissenters, from operating vehicles with “steel-cleated wheels” on paved public roads).

The pro-rational basis cases are three vaccination cases allowing health, but not religious, exceptions:  We the Patriots, supra; Doe v. San Diego, supra; and Does 1-6 v. Mills, 16 F.4th 20, 29-31 (1st Cir. 2021); along with 303 Creative LLC v. Elenis, 6 F.4th 1160, 1186 (10th Cir. 2021) (public accommodations law prohibiting anti-gay discrimination), cert. granted on other grounds, 142 S.Ct. 1106, 212 L.Ed.2d 6 (2022) (First Amendment).

The hodge-podge of pro-strict scrutiny cases that the dissenters cite in We the Patriots exhibit two rather obvious differences from vaccine cases. First, if exceptions for people with health problems in a mass vaccination effort are discouraged, people could die.  It’s that simple.  Vaccines are FDA-regulated products because they have inherent risks, at least with some people, which is why Congress passed the Vaccine Compensation Act.  None of the cases that found strict scrutiny involved any remotely similar health risk – unless somebody gets run over by steel cleated wheels.  Nobody’s going to die because they have to shave a beard.

Second, the cases where strict scrutiny was imposed involved an inherent risk that directly causes harm to third persons.  Vaccination doesn’t protect only those vaccinated, but the rest of society as well.  As the Court stated in Prince, “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”  321 U.S. at 166-67.  We can’t improve on that.

Since the Crusades, if not before, people asserting “sincerely held” religious beliefs have claimed the right, indeed the duty, to kill non-believers and heretics.  Some religious “reconstructionists” in the United States and elsewhere still hold such beliefs.  But current criminal law, while not recognizing any religious exception to murder, does recognize an exception for justifiable homicide (so-called “self-defense”).  Does that make our murder statutes unconstitutional?  That extreme hypothetical simply eliminates COVID-19 (or some other infectious agent) as the middleman for religious fanatics.  We don’t want to start down that slippery slope.