This column first appeared in the Los Angeles Times on July 23 and is reprinted with permission.
By Erwin Chemerinsky
Policies requiring vaccination against Covid-19 need not include, and should not include, exceptions for those who have religious objections to vaccinations.
Many universities, including the University of California, are requiring vaccination for all students, staff and faculty returning to campus. Many employers, public and private, are doing so as well. These policies are essential to protect public health. The virulent delta variant of the coronavirus has made it imperative to ensure vaccination of as many people as possible.
Unfortunately, though, many of these policies have an exception for those who have a religious objection to vaccination. These are neither required by the law nor are they desirable as a matter of policy because they make it possible for anyone to circumvent the vaccine mandate.
The University of California’s mandatory vaccination policy, for example, has an exception for those who object on religious grounds. It states that this is because the law requires such an exemption, declaring: “The University is required by law to offer reasonable accommodations to . . . employees who object to vaccination based on their sincerely held religious belief, practice, or observance.”
This is simply wrong as a matter of law. No law requires such a religious exemption. In terms of free exercise of religion under the First Amendment, the Supreme Court ruled more than 30 years ago in Employment Division vs. Smith that the Constitution does not require exceptions to general laws for religious beliefs. In an opinion by Justice Antonin Scalia, the court said that as long as a law is neutral, not motivated by a desire to interfere with religion and of general applicability to all individuals, it cannot be challenged based on free exercise of religion. In June, in Fulton vs. City of Philadelphia, the court reaffirmed this legal test.
Laws that require vaccination are the epitome of a neutral law of general applicability: a requirement that applies to everyone and that was not motivated by a desire to interfere with religion. Even if this were not so, the government can infringe on religious freedom if its action is necessary to achieve a compelling interest.
Stopping the spread of a deadly communicable disease is obviously a compelling interest and vaccinations are the best way to reach that goal. No one, in practicing his or her religion, has a constitutional right to endanger others.
Indeed, a number of states, before Covid-19, created mandates for children to be vaccinated against other communicable diseases without making exemptions for religious beliefs. Without exception, the lower courts have upheld these mandates as constitutional.
Nor do federal employment discrimination laws require a religious exception for employees. In the 1977 case Trans World Airlines vs. Hardison, the Supreme Court said that employers do not have to bear more than a “de minimus” cost in accommodating employees’ religious beliefs. Vaccine exemptions could impose a significant cost on employers in terms of illness and therefore clearly are not required.
Religious exemptions, like in the University of California policy, are for those with “sincerely held religious beliefs.” But how can this possibly be determined?
The Supreme Court has said that religious beliefs are personal, and it does not matter whether they are in accord with the teachings and dictates of a particular faith. Under this broad principle, any person could get a vaccination exemption merely by stating that he or she has a religious objection against it.
Such an easy opt-out could make the mandate illusory. That is why the only way to have a meaningful vaccination requirement is to apply it to everyone — except those for whom vaccination is not medically advisable.
As people return to the workplace and to campuses the spread of Covid-19 remains a great danger, especially with the highly transmissible delta variant circulating. The unvaccinated not only endanger themselves and other unvaccinated people, but also those who cannot get the vaccine for medical reasons. And now, there are growing reports of breakthrough infections of fully vaccinated individuals.
Universities and employers have the legal right to make sure that everyone is vaccinated. And they have the moral duty to protect health and lives.
Erwin Chemerinsky is dean of the University of California – Berkeley School of Law. He is the author of a forthcoming book, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.