"Sword of Justice / La Justice"

Non-vaccinating parents are asking, in the name of religion, to risk their own child and their child’s classmates with a preventable disease. This is not a theoretical risk: the last outbreak of polio in the United States, to give one example, was in a Christian Scientist school with low vaccine rates.

Freedom of religion is one of the values on which several colonies – later states – were founded, and is embedded in the First Amendment in our constitution. It is a core value in the United States. While most major religions do not oppose vaccines, there have always been small groups and individuals who had sincere objections to vaccines. This essay explores how the law handles religious-based objections to vaccines mandates in the United States. The law in the United States does not require states to provide religious exemptions from vaccine mandates, but states can choose to do so, and most do. But, when states do adopt a religious exemption, the law makes it very hard to limit it to people whose reasons to oppose vaccines are actually religious.

Why doesn’t United States law require a religious exemption? 

While the Supreme Court has not spoken directly on the topic for decades, many other courts in the United States have examined whether a religious exemption from school immunization mandates is required [Dorit Rubinstein Reiss, “Litigating Alternative Facts: School Mandates in the Courts,” 21 JCL 207 (2018); “Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements,” 65 HLJ 1551, 1567-1570 (2014)]. To date, no court, state or federal, has ruled that a state has to provide a religious exemption. There are three reasons for this. First, since 1990, the Supreme Court has ruled that generally applicable, neutral on their face laws do not have to exempt people with religious objections [Employment Division v. Smith, 494 U.S. 872, 879 (1990)]. The state does not have to exempt you from paying taxes if you have religious objections to taxation, it does not have to allow you to smoke peyote in a religious ceremony, and similarly, it does not have to exempt you from vaccine requirements even if your reasons for opposing them are religious. Second, even before 1990, laws addressing children’s welfare did not require a religious exemption, and not vaccinating a child puts the child at risk. Third, not vaccinating also puts others and the community at risk – and freedom of religion does not extend to that. The classic case on these two issues was Prince v. Massachusetts [321 U.S. 158 (1944)], a Supreme Court case in which a woman was charged with violating child labor law by taking her young niece and nephews, under her custody at the time, to distribute Jehovah Witness pamphlets. The aunt claimed the laws violated both her religious freedom and her parental rights. The court rejected the claim, and made an analogy to vaccines mandates:

[A parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. 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.

Prince v. Massachusetts [321 U.S. 158 (1944)]

The court also added that:

[P]arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

Ibid.

The heart of Prince is that freedom of religion of parents is not absolute. And it is weakest when the parental religious choice risks the child’s welfare or risks others. School mandates are exactly that kind of context. Non-vaccinating parents are asking, in the name of religion, to risk their own child and their child’s classmates with a preventable disease. This is not a theoretical risk: the last outbreak of polio in the United States, to give one example, was in a Christian Scientist school with low vaccine rates, and 9 children were paralyzed by the time it was controlled (Louis Weinstein, “Poliomyelitis—A Persistent Problem,” The New England Journal of Medicine, February 15, 1973; 288:370-372). 

Limits on religious exemptions

For the reasons above, states are not required to provide a religious exemption from school mandates. But most states do it anyway. As of the writing of this piece, only five states (California, Maine, Mississippi, New York and West Virginia) offer no belief-based exemption from school vaccine mandates. If a state does offer an exemption, however, there are important limits on how the state can apply that exemption. First, since the religious exemption is based on religious freedom as an individual right, it is the individual’s religious beliefs that matter. This means several things. You cannot limit the exemption to people who belong to a religion that opposes vaccines, because that discriminates against people with individual objections [Dalli v. Board of Education, 267 N.E.2d 219, 222–23 (Mass. 1971)]. You cannot refuse an exemption to someone on the grounds that their official religion supports vaccines, because it is about their personal religious beliefs, not their religion’s commands [Berg v. Glen Cove City School District, 853 F. Supp. 651, 654-55 (E.D.N.Y. 1994)]. Second, several courts found that unless the law expressly allowed officials to review sincerity, they had to accept claims of religious beliefs at face value, removing oversight [Health v. Curry, 722 So. 2d 874 (Fla. App. 1 Dist. 1998); In re LePage, 18 P.3d 1177, 1180 (Wyo. 2001)].

These cases draw on a reluctance to allow states police religious beliefs, a legitimate concern. The combined effect, however, is to make policing religious exemptions – limiting them to people with religious objections to vaccines – very hard or impossible. Note that even vigorous policing of sincerity – as public schools in New York did, before the outbreak – has its issues: delving deep into sincerity can easily mean that people who had the benefit of legal advice, or more sophisticated people who are better at phrasing the claims in the right way, would get unjustified exemptions, and more direct requesters would not. It also encourages people whose opposition to vaccines is not religious to lie about their reasons.

In a real sense, having a religious exemption is a bad deal: it’s not constitutionally required, it increases the risk of outbreaks in the state by lowering vaccines mandates (though not as much as a personal belief exemption), it can reward good liars over more sincere people, and it encourages people to lie.

Just Remove this Death from Me: Rabbinic Responses to Vaccination

Contemporary rabbinic authorities have established this religious obligation as carrying scriptural authority – citing no fewer than five affirmative Commandments and three Biblical prohibitions.

Overcoming Vaccine Hesitancy

Over the years we have realized two things. One, the anti-vaccination lobby is very strong and they use social media to their benefit. Second, for any vaccination campaign to be successful it would require a positive socio-political and religious background.

Religion, Law and Vaccines

Non-vaccinating parents are asking, in the name of religion, to risk their own child and their child’s classmates with a preventable disease. This is not a theoretical risk: the last outbreak of polio in the United States, to give one example, was in a Christian Scientist school with low vaccine rates.

Community Storytellers and the Theopolitics of Vaccinations

Uprooting a fear without replacing it with helpful information is redundant. Therefore, it is time to shift focus from merely quashing anti-vaccine sentiment to intentionally building vaccine confidence. Nigeria provides a heartening case study on how this can be achieved.

Conscience, religious tolerance and public health

Even though the vaccination debate has nothing to do with religion, the public colored it with religious tones, and opted for policy inspired by the evolving culture of religious toleration and respect for individual conscience. After this move in the direction of post-reformation European culture took shape, public health turned medieval.

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