This article first ran on Religious Dispatches on Oct. 8 and is reprinted with permission.
By Andrew L. Seidel
The Spirit of 1776 was as much about science as it was about freedom. George Washington required the entire Continental Army to get inoculated against smallpox — the first army-wide vaccination in history. Mortality dropped from 30 percent to 1 percent. Mandatory vaccinations just might have won America its freedom. From that auspicious beginning, Americans have let vaccine science protect our soldiers in the military, our students in school, our healthcare workers on the front lines — everyone.
Vaccine mandates are undoubtedly constitutional. The Supreme Court explained back in 1905 that freedom can be limited, especially when wielded to harm others’ rights: “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.”
During WWII, the court specifically said that religious freedom is no excuse to shun vaccines: “The 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.” Even the late, uber-conservative Justice Antonin Scalia singled out religious exemption from “compulsory vaccination laws” as not required by the First Amendment. Most state courts have independently reached the same conclusion.
In hundreds of cases across more than a century, the law is clear: vaccine mandates are constitutional and religious exemptions are not constitutionally required.
People are fond of saying that freedom isn’t free, but nor is it absolute. And thinking in constitutional absolutes is killing Americans. Literally. The claim that the Second Amendment protects a sacred and unlimited right is a legal narrative recently invented, deliberately advanced, and grossly manipulated by the NRA — and it’s killing Americans. The Supreme Court’s political manipulation of the constitutional right has allowed guns to become as much of a public health crisis as Covid and has thwarted sensible gun regulation. This Supreme Court is considering another Second Amendment case this term that will likely entrench the absolutist misunderstanding of the right further.
There is currently a crusade, much like the NRA’s, to weaponize the religious freedom right guaranteed by the First Amendment. To make the right to act on a religious belief as absolute as the right to believe. This has never been true under our Constitution.
Drawing these lines is not difficult, though in this case it’s a matter of life and death. You are free to believe whatever you want. But your right to believe does not include the right to risk the lives, health and safety of anyone else. You might believe you can safely operate a car while drunk; but if you get behind the wheel, we punish that reckless behavior. Vaccine refusal is reckless in the same way drunk driving is. Whether the belief is religious or not doesn’t change the calculus.
If you need an easier example, just think of ritual human sacrifice. Is murder permitted if the murderer believes his god commands it? If religion were a license to violate another’s rights, that would not be religious freedom, but religious privilege — your right to believe would trump my rights. This version of religious freedom is inherently unequal.
No major religion has a theological objection to vaccines. In one NPR story, a pastor admits that there’s no religious objection to vaccines, but also confesses that he’ll sign off on religious exemptions, not because of theology, but because a vaccine mandate “just seems a little harsh right now.” He may be well-meaning, but rarely do we get such a clear example of the rampant abuse of religious freedom. He admits religion isn’t the issue, but is using religious privilege to recklessly risk other people’s lives. As Chrissy Stroop recently pointed out in her column, “sometimes religion is the problem.”
This Supreme Court hasn’t yet ruled on religious exemptions to mandatory vaccinations in the Covid-era, but it’s almost certain that the five Covid justices will side with Christian privilege. They’ve already weaponized religious freedom against public health orders, among other things. I’d bet on a decision in favor of mandatory religious exemptions from vaccine mandates whenever the shadow docket presents an opportunity for the court to decide such a case.
The difference between the decades- and even century-old Supreme Court cases mandating vaccines and today’s, isn’t just the recently weaponized religious freedom, but also because “in most instances, communities had achieved the luxury of herd immunity,” as FFRF Co-President Annie Laurie Gaylor put it recently. Once the hard work of getting to herd immunity is done, a religious exemption might not seem like a big deal. But we have to get there first.
“We don’t have that luxury when it comes to Covid-19,” Gaylor told me, “and even before this pandemic, we’ve seen the health and fiscal cost of vaccine exemptions, especially religious exemptions, for decades in this country.” Gaylor is right: in 2015 alone, unvaccinated people cost the country $7 billion. The only exception to this mandate should be medical — those people who are, for instance, immuno-compromised. Herd immunity protects these vulnerable people.
Herd immunity for Covid-19 is far away because a lethal virus was politicized by Christian nationalists. Professors Andrew Whitehead and Sam Perry, leading scholars on Christian nationalism, have so many receipts. They’re not alone.
Today’s anti-vaxxers, be they religious or political, are accustomed (and inured) to the benefits of modern medicine. They want life to get back to normal but fail to realize that that normal was achieved with mandatory vaccination and no religious exemptions. If we’re to be free of the pandemic that’s killed 710,000 of our friends, brothers, sisters, and parents — more Americans than all our wars combined — we need to recover that spirit of 1776. Mandatory vaccination now. Religious exemptions be damned.
Andrew L. Seidel is FFRF’s director of strategic response and author of The Founding Myth: Why Christian Nationalism is Un-American.