John Fea, professor of American history at Messiah University, and Michelle Mello, professor of law and medicine at Stanford University, discuss the history and legality of religious exemptions to vaccines in America.
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FASKIANOS: Thank you. Welcome to the Council on Foreign Relations Religion and Foreign Policy webinar series. I’m Irina Faskianos, vice president of the National Program and Outreach at CFR.
As a reminder, the webinar is on the record, and the audio, video, and transcript will be made available on our website, CFR.org, and on our iTunes podcast channel, Religion and Foreign Policy. As always, CFR takes no institutional positions on matters of policy.
We’re delighted to have with us Dr. John Fea and Dr. Michelle Mello. We’ve shared their bios with you, so I will just give you a few highlights.
Dr. John Fea is professor of American history and chair of the history department at Messiah University. He’s the author or editor of six books, including
Believe Me: The Evangelical Road to Donald Trump. He authored an article titled “Cherry-picking the Bible and using verses out of context isn't a practice confined to those opposed to vaccines—it has been done for centuries.” Dr. Fea is the executive editor of
Current and he is currently working on a book on the American Revolution in New Jersey and a survey of American Christianity.
Dr. Michelle Mello is a professor of law and a professor of medicine at Stanford University. A leading empirical health law scholar, Dr. Mello is the author of more than two hundred articles on medical liability, public health law, pharmaceuticals and vaccines, biomedical research ethics and governance, as well as many other topics. Dr. Mello is the recipient of a number of awards, including a 2014 election to the National Academy of Medicine, formerly known as the Institute of Medicine, and it was one of the highest honors in the fields of health and medicine.
So, Dr. Fea and Dr. Mello, thank you very much for being with us today to discuss vaccines and religious exemptions.
So, John, I thought we could begin with you togive us the historical context for the use of religious exemptions to vaccines in America.
FEA: Yeah. Sure. You know, you gave me five to seven minutes to discuss—(laughs)—the history of this.
For the sake of a talk like this, I think there are, as I see it, I think there are essentially four kind of eras in United States history in terms of religious opposition to vaccines and other attempts, like inoculation for example, to stop the spread of disease. Until you get the first vaccine—Edward Jenner’s smallpox vaccine in the late 18 century, which really comes to the United States in the early 19 century—the colonies and the early national United States treated disease, and specifically smallpox we’re talking about here, through inoculation—which, as many of you know is essentially injecting the disease into the body. There was some religious opposition to this practice. Especially, there were huge debates over it in the early 18 century in colonial New England. But much of the opposition to smallpox inoculation was based largely upon just the danger of the practice. People died as a result, and sometimes the inoculations were botched and the disease spread even further.
But having said that, there were—there were religious leaders, some of the most prominent religious leaders in the 18 century, who did take the inoculation and advocated for the inoculation, most famous being Cotton Mather, the 18 century minister in New England, and then later Jonathan Edwards, who died as the third president of the College of New Jersey—Princeton—from taking the smallpox inoculation. So, there’s this early phase, I think, of inoculation. I’ll go through that very quickly simply just to register that, at least, because this is very different than, say, vaccines.
When vaccines begin to kick in—literally from the Latin word
vaccus, for “cow,” right, the injection now of cowpox into human beings—you have this kind of second phase or this second era. Much of the legal history of this centers around mandates that local communities/towns/states put into place. Massachusetts is at the forefront of this in the 19 century, issuing mandates for the smallpox vaccines. The high point here is in the early 2h century—and perhaps Dr. Mello will say some things about this as well—with the famous 1905 case
Jacobson vs. Massachusetts in which the Supreme Court of the United States decided that a Massachusetts vaccination law did not violate the 14 Amendment and a state, essentially, could constrain individual liberties to protect public safety against smallpox outbreaks. And then, really, the only other time—and again, Dr. Mello can correct me if I’m wrong on this—that the United States Supreme Court deals with vaccines is seventeen years later in a case that, essentially, allows for mandates of children to be vaccinated to go to public and private schools.
So much of the opposition to these Supreme Court cases were oppositions based upon individual liberties, right, that government is intruding on our individual liberties, or the ineffectiveness of the vaccines so why do we have to mandate them, or perhaps there were arguments made that smallpox is no longer as much as a threat as it once was, so why do we need these vaccines. But I guess the point for this discussion is there was very little religious opposition.
Whatever religious opposition came to vaccine mandates in, say, after the Civil War and before World War II were largely from kind of out-of-the-mainstream religious sects like, for example, the Christian Scientists or the Swedenborgian Church, a small little sect in Pennsylvania. Even the Christian Scientists in—or at least in the late 19/early 20 century received so much public pressure—because their children were dying in Christian Scientist schools, the disease was spreading among the community, the received so much pressure that even Mary Baker Eddy, the founder of the movement, told followers to take the vaccine and essentially pray once they took the vaccine that the vaccine wouldn’t kill them, right, was their approach to all of this. So, I think in this period from roughly, say, 1800 to, 1940 or World War II, there’s not a whole lot of religious opposition to vaccines. There is opposition, but very rarely is it framed in religious terms.
I think that leads, then, to a third era, really that sort of takes off in the decades following the polio vaccine in the ’50s and then the measles vaccine, which was in the early 1960s, and I think most of the debate here focused on vaccination of children in schools. For example, Christians and other religious groups, I would say most of them overwhelmingly saw the vaccine as a gift from God, right? I mean, it’s amazing to read newspapers in the 1950s and 1960s, and seeing these religious leaders of all types, including evangelical Christians, talking about the polio vaccine as something that God has brought as a special gift to fight disease.
Having said that, this is also the era where you begin to see religious exemptions for the first time—the actual phrase “religious exemptions” being used. I think a lot of this has to do with the idea of religious exemptions for all kinds of things, not just vaccines, are introduced into the kind of legal and political sphere with the Civil Rights Act of 1964, which of course prohibits employment discrimination based on color, race, religion, sex, national origins. So you do see pushes here for religious exemption, but again they are still largely by sects like Christian Scientists; the Amish; in some extent I think I’ve seen cases of Jehovah Witnesses pushing for religious vaccines; but again, nothing kind of mainstream, right? There are a series of smaller cases, local cases, state cases in which these things are debated. Maybe we can get into them during the Q&A. But mostly the Christian Scientists are at the heart of these discussions, looking for some type of religious exemption.
And then if I could just bring it up to the present before I close, finally, I think COVID-19 has brought us into a kind of fourth phase. It’s a much more complicated and complex phase and debate over religious exemptions. A lot of things happened. At the end of the 20 century you had this
Lancet article published by Andrew Wakefield which suggested that vaccines, especially the MMR vaccine—the measles, mumps, rubella vaccine—led to autism in children. I think—it was completely, completely debunked. That was proven to be a fraudulent claim, but I think it did empower a certain kind of anti-vaxxer movement led by a few celebrities. Some of us may be familiar with those names.
And then with this growing anti-vaxxer community, I think, again, led by these prominent celebrities, the call for religious exemptions kind of entered much more into the mainstream than they were before, or at least as much into the mainstream as—let me put it this way. I think they entered the mainstream alongside the rise of cable news outlets, social media, and so forth in a way, perhaps, that we haven’t seen before in American history. Maybe “mainstream” is the wrong word there, but certainly you have more appeals to these kinds of religious exemptions than you’ve seen before. But I think it’s also during this period that Evangelical Christians have played the most prominent role in calling for the rights to religious exemptions in a way that they had not before.
So I think this is the point where we are at now. Again, I think most of the religious exemption claims that I see are coming from—not entirely, but coming from Evangelical Christians and conservative Catholics.
But overall, the discussion of religious exemptions has not really been delved into very much by American historians. There are some very, very good books on anti-vax movements that cover religion. But I think one of the reasons why historians have not really dug deeply is because religious exemptions is really only a recent phenomenon.
So maybe we could flesh this out a little bit more during the Q&A, but I’ll stop there.
FASKIANOS: Thank you very much.
Dr. Mello, can you talk about the legality of religious exemptions to both the COVID-19 vaccine in places that have imposed mandates and how religion is being used as a loophole?
MELLO: Well, maybe I’ll start with the last part of your question there because I think that maybe merits a little bit of unpacking. I think the term “loophole” is pretty charged. The fact is that the law has long recognized the right of sincere religious objectors to request an accommodation when there is a vaccination mandate. It might be reasonable to raise the question about whether that exemption is being stretched to a point where it was not intended to go for COVID, and I’m happy to talk about that.
But as I intimated, the law—both statutory, the laws that Congress and legislatures make, and constitutional law—has long recognized that religious liberty can be implicated by vaccination mandates and has made provision for that. And maybe it makes sense for me to just dwell separately on those two bodies of law.
The statutory law, federal civil rights laws and to a lesser extent state civil rights laws, are mostly important for employer mandates. If you’re a reasonably large employer, you are covered by the Civil Rights Act of 1964, Americans With Disabilities Act. If you receive federal funding, you’re covered by the Rehabilitation Act. And these laws protect certain classes of civil rights, including the right not to be discriminated against based on race, disability, and religion. And so employers have to offer what the law calls a reasonable accommodation for religious objections unless it would pose an undue hardship on the employer.
What does that mean? Well, a reasonable accommodation in the context of the COVID vaccine would be something like you have to get tested once or twice a week, you have to wear a mask at the worksite, depending on your occupation you have to work from home. These are the types of things that would be within the realm of the reasonable.
Now, what constitutes an undue hardship under Title 7? That’s actually a really employer friendly standard. If the employer can just argue, look, this is more than a minimal cost burden on me to do this, for example to provide test kits to everybody twice a week, it’s quite possible that a court would say, OK, you don’t have to provide that accommodation. In other words, you don’t have to accommodate a religious exemption in that way.
There is another important aspect of the civil rights law, which is that if a person poses a direct threat—meaning they—a court would deem to pose a substantial risk of substantial harm to others, that cannot be reduced by reasonable accommodation, you don’t have to accommodate their religious objection to vaccination. And that obviously has a lot of traction in the realm of infectious disease. That was the reason for the direct threat exception. Now, COVID’s not a wildly infectious disease. It’s not measles. There are other things that we know are effective in preventing transmission. But that too is available to employers who don’t want to accommodate a religious objection.
What tends to be on the employee-friendly side is how employers are supposed to treat requests for religious exemptions, which is to say they’re supposed to give people the benefit of the doubt. If the employer is aware of facts that would lead the employer to believe either this is not a religious belief, it’s something else—it’s just sort of philosophical, personal in nature, or it’s political, ideological in nature, or it’s not a sincere religious belief, then the employer can request additional information and scrutinize it a little bit. So, for example, if this was the first time the employer has ever raised a religious exemption to a vaccine— she’s gotten dozens of other vaccines in her lifetime—that’s salient information. But under the civil rights generally you’re supposed to give people the benefit of the doubt. And employers tend to get into trouble when they look too hard behind those claims of religious belief.
Now, in nonemployment contexts, what’s most important is not these federal civil rights laws, but rather the Constitution. And here the law is a little bit less crisp, as is always the case when we compare constitutional to statutory law. And here, it is also increasingly unsettled as to what is constitutionally required in terms of accommodating religious exemptions. So let me give the basics, and then I’ll talk about three things that I think are under contestation right now. And when I say right now, I mean literally right now. Every day in my inbox there are two to three new court rulings coming down in this specific area. It is wildly unstable territory, from a doctrinal perspective.
The basics, as John intimated, the Supreme Court has never held that a religious exemption to a vaccination mandate—and here, we’re thinking about state, or city, or school district mandates—is constitutionally required. And most lower courts haven’t either. Instead, lower courts have applied something called “rational basis review” when they’ve been evaluating challenges by religious objectors. And that merely requires a judge to say: Is what the state or school district is doing here in pursuit of a legitimate state interest? And is it reasonably related to that interest? And in practice, that comes down to an inquiry that sounds an awful lot like, is it crazy? If it’s not crazy, the court is going to defer to what the government has done.
And that’s been the lay of the land for vaccination mandates for a very long time. Now, when somebody’s religious objection gets denied by a school district, let’s say, courts will look at the procedures used to deny that request and make sure that they are fair procedurally, and that the hew closely to our standards about what constitutes a sincerely held religious belief. And here the analysis looks pretty similar, as it does under federal civil rights law. They’ll look at, you know, is this person articulating something that sounds like it’s about God or a belief system that stands in the place of God? It’s bigger than vaccines. It’s kind of an organizing framework for their life. And does it actually prohibit them from taking this vaccine?
They don’t require that petitioners be members of a recognized or established religion. They don’t require that they attend services or make other performative gestures demonstrating their allegiance to the religion. They don’t require that a clergy member provide an attestation saying: Yes, indeed, our religion prohibits this from happening. Nevertheless, even without those indica, they may still—and often do—find that a belief is not religious in nature. For example, some cases have involved vegans arguing that veganism stands in the place of a supreme being in terms of the organizing framework for their life. And most courts have said, hmm, not quite. That does not rise to the level of a spiritual or religious belief.
OK, so that’s the basic. For a long time, lots of deference to organizations that want to impose vaccination mandates, even in the face of religious objections. What’s being contested now in courts across the country, and I believe soon at the Supreme Court, is three things. First, what is it exactly that constitutes a sincerely held religious belief? Now, I’ve outlined certain things that the courts have established you don’t have to show, like your pastor agrees with you about the religion having—you don’t have to provide this attestation that the religion bars you from receiving the vaccination. What’s going on now though kind of steps beyond this.
It’s not that the person is failing to produce a letter from a clergy member saying, yes, I back them up on this claim. It’s that the clergy members have actively gone out in public and said: No, we don’t bar COVID vaccination in our religion. Our religion either has nothing to say about this, or we are going on record as saying in our church we want people to get COVID vaccines. It is acceptable. It’s consistent with doctrine to get COVID vaccines. There is no bar here. And nevertheless, there is a person who identifies with that religious belief system who comes forward and says: Yes, but my interpretation of the Bible, of Catholic doctrine, is that I shouldn’t get this vaccine. And it doesn’t matter that the religious leader has said this.
What do you do in that situation? Right now, the lower courts are split. The Second Circuit Court of Appeals, which is a fairly high-level federal court of appeals, just days ago joined at least one other district court, a lower-level federal court, in holding that a member of a religious denomination can assert their own interpretation of doctrine. And they cited a Supreme Court case that indeed seemed to suggest something along that line. At least two other courts have held otherwise. For example, there was a case against UMass brought by a Catholic athlete. And the court said, look, UMass doesn’t have to accommodate her request. She did not provide any reason to think that the Catholic Church is opposed to vaccines. And they’ve come out as saying that they are not.
So there’s a split right now. And it’s really important. It’s really important because religious leaders have begun to line up in making public statements either in favor of—or, let’s say either not opposed to or opposed to the vaccine. So it matters whether those statements, or to what extent those statements, have legal weight. The second reason is many people have begun filing religious exemptions. And it’s not always clear, as your suggestion when we opened the session here kind of intuited—is that it’s not always clear that it is sincerely religious, as opposed to something that looks more ideological. And so when you have a very, very large group of people looking to kind of shoehorn complaints about the COVID vaccine into religious beliefs, it really matters how wide the interpretation of sincere religious belief is going to be.
I think, as John suggested, the group of people who is opposed to the vaccine now is just orders of magnitude larger than it has ever been for any other vaccine, and much broader in its reach across different religions or different age groups. It’s a new phenomenon. That makes it harder to tie to religious beliefs and might raise a suspicion of something else going on. And then the third reason that this really matters is that some pastors have started issuing letters by the hundreds or thousands for parishioners attesting to their—you know, to say that their church opposed COVID vaccination. And then people are sort of wielding these to try to get religious objections granted. So this first question, what constitutes a sincerely held belief, really matters.
The second question is whether a government unit can offer a medical or a pregnancy exception to a vaccination mandate, but not offer a religious exemption. Historically, as John said, the answer has been yes. And the trend in the states has been in that direction, towards eliminating everything but the medical exemptions. But again, just this week there was a ruling relating to one of our California school district’s vaccination mandates for students that suggest otherwise. That San Diego Unified School District has an exemption carve out for pregnant students. Not clear why. Not really medically based. (Laughs.) It had that, but not a religious exemption.
And the Ninth Circuit Court of Appeals, another big federal court of appeals, issued a kind of summary opinion, not much reasoning, but sort of hints that the reason it found that unacceptable is that under a prior Supreme Court ruling called Tandon, relating to broader stay at home orders that affected religious congregations in the earlier stages of COVID, you cannot treat any comparable secular activity more favorable than you treat religious exercise. So what the court saw in that school district mandate was unequal treatment of people who had pregnancy-related objections on the one hand, people had religious objections on the other hand. The pregnant people were treated better than the religious objectors, and that’s not OK according to this appellate court’s interpretation of this decision in the Tandon case.
Furthermore, just before Halloween, the Supreme Court issued an opinion that didn’t tell us much as a majority, but three of the conservatives issued a dissenting opinion that made it very clear that they think Maine’s healthcare worker mandate, which has no religious exemption, is unconstitutional for the same reason. So this would be a big sea change in public health law, if—as I think it inevitably will be—the Supreme Courts holds on its face that religious exemption is now going to be required if you offer a nonreligious exemption of any kind.
And that leads into the third area that’s under contestation right now, which is a little bit more difficult to explain, but I’ll try to do it quickly and simply. And that’s the question of what standard of judicial scrutiny applies, when vaccination mandates get challenged. As I mentioned before, usually courts apply a rational basis for review, asking only is there a legitimate state interest here and is this intervention reasonably related to that interest. There is a different standard called strict scrutiny, which almost always results in the invalidation of a state’s action. And it asks instead whether the state has a compelling interest that cannot be achieved through any means more narrowly tailored than the one that it has chosen.
In this case that I mentioned before, Tandon vs. Newsom, involving California’s stay at home orders, a five-to-four majority of the Supreme Court adopted what legal scholars have come to call this most favored nation rule, that says a law that looks general has to be treated as targeting religion, and therefore has to get strict scrutiny if it makes an exception for some secular activities but not for comparable religious activities. So even if your vaccination mandate applies to everybody, again, if it has an exception for pregnant people, or people who have a history of a contraindication medically, but not for religious exemptions, now you’re in strict scrutiny land. And now courts are going to make it very difficult to uphold that claim.
Further muddying the waters, in June of this year in a case called Fulton vs. City of Philadelphia, the Supreme Court held that it won’t consider a law to be neutral—in other words, not targeting religious practice—if it contains any process for considering individualized exceptions or exemptions. So, think about that. Now if you have any process through which people could apply for a medical exemption, or potentially also a religious exemption, but there is room for the state to, like, exercise some discretion in considering those requests, now that’s not a neutral law. And if it’s not a neutral law, it gets strict scrutiny.
So where are we now? Nobody knows. One read of the situation is none of this really matters too much because virtually all mandates do contain religious exemptions. So it’s unlikely to attract the Supreme Court’s attention. I don’t think that’s right. (Laughs.) First of all, a lot of mandates don’t contain religious exemptions. A lot contain religious exemptions that aren’t well administered. So I think it’s very likely the Supreme Court will turn to this.
Another, and I think better, read of the situation is that it kind of creates a potential catch-22 for organizations adopting mandates. If you don’t have a religious exemption, you might get strict scrutiny under Tandon because these medical contraindications are treated more favorably than the religious objections. But if you do have a religious exemption process, well, now you’ve got a problem because now you’ve got this process for considering individualized exemptions, and that could trigger strict scrutiny. So it seems like either way you turn, as a mandate designer, you might have a problem.
Now, just this week the Second Circuit in the New York City case tried to toe the line saying, well, a state could carve out some objectively defined categories of people who are exempt, and therefore it wouldn’t be this individualized process of exemption and it could potentially evade strict scrutiny on that basis. But you have to be really careful about how you do this. You can’t, for example, give too much discretion to people who are evaluating these exemption requests.
So to summarize here, there are three critical issues on which we have no idea where things are going to land in terms of the law. And, again, this is really astonishing to people who study this area of law. It is just introducing incredible tumult in an area that I’ve always been able to teach in about fifteen minutes to law students because it’s so well settled. And it has really, really profound implications in a setting in which a quarter to a third of the country is deeply resistant to receiving vaccines, the situation in which we’re not confronting the omicron variant, we potentially need to revaccinate and to extend vaccination beyond the 65 percent ceiling that we’ve hit here. So, again, the implications are really profound.
FASKIANOS: Well, thank you for that. That really was informative and very complex. And you really gave us insight into how to think about it.
I want to go to all of you now for your questions. You can either raise your hand by clicking on the “raise hand” icon, or—and when I call on you, please unmute yourself and state your name and affiliation. And if you want to write your question in the Q&A box, feel free to do so, but I ask that you include your affiliation so that I can read it, and also identify you properly. You can also, if you want to direct your question to either John or Michelle, please do so.
So I’m going to take the first question from Lawrence Whitney, who has a raised hand. So please unmute yourself. There you go.
WHITNEY: Hi. Lawrence Whitney, ACLS leading edge fellow at the National Museum of American History.
And I’m interested in the issue of a lot of religion scholars are looking at the way in which religion has become heavily politicized, particularly during COVID. And, for example, some research indicates that the label of evangelical no longer applies, particularly as a religious category but as much more a political category, right? So that we have Hindus and Jews and Muslims identifying as evangelical, largely because they understand their religious affiliation and conservative political views to be the defining characteristic of what it means to be evangelical.
So I wonder if you could comment on the extent to which these religious exemption requests are really mechanisms for getting politically motivated behaviors through what would otherwise be an unavailable avenue of access, right? You can’t get an exemption for your political views, but you can for your religious views. So we turn our political views into religious views in order to get through the mandate wall. And the ways in which you may or may not see that playing out. And how that causes us to rethink what a religious exemption is. Thanks.
FEA: Thanks for that question. I think you’re exactly right about the word “evangelical,” how it’s taken on a kind of—especially since the Trump era—has taken on a kind of political dimension. Well, really before Trump as well. Here’s what I see, and sort of putting a historical kind of gloss on it as well. And Michelle talked about this, right? What is sincerely religious belief? Is there some other kind of thing going on here, or is it religious belief? Historically like I said in my little talk, there have been two ways in which people have opposed—two major ways in which people have opposed vaccines. One is, like, the vaccine doesn’t work, or the science is bad, or it’s going to hurt me. And then second, this claim of liberty, right? Some kind of threat to my liberty.
What evangelicals have done in the last forty or fifty years is they’ve essentially articulated a vision of America that is fused with their conservative religious faith. And what does that look like? I’ve talked to dozens of—here in Pennsylvania—dozens of medical professionals, school nurses, and so forth, who have shared with me the kind of things that they’re seeing these religious exemption forms that they get. And what you’re seeing is you’re finding that historic position of defending one’s liberties, one’s rights as an American, which has been there from the beginning.
And it’s now being fused with kind of—and this is what I talked about in that piece in the
Conversation that Irina mentioned in my bio—fused with these cherry-picking of kind of Bible verses. You know, things like my body is a temple of God or, in Luke 17, Jesus touched the leper and healed him, so I don’t need a vaccine to be healed. You know, these kinds of very commonsense, literal, inerrant interpretations of scripture. And they’re fused together.
And usually when they’re fused together it looks something like this, right? The vaccine is a threat on my liberty and rights as an American, but my rights and liberties as an American come from God, right? So this is not just a constitutional or a Declaration of Independence, right, endowed by our creator with certain inalienable rights kind of threat. This is also a threat to the kind of divine order, the kind of nation that the United States is supposed to be. And it’s deeply embedded in these ideas of Christian nationalism, or the idea that America is somehow a Christian nation, is a special nation, is blessed by God. And God has given us rights in an exceptional way that no other nation has.
So, I’m not the legal scholar here—I mean, this is kind of how you kind of need to—how do you pull that apart, right? If you have a sincere belief that God created the United States as a Christian nation and endowed us with certain inalienable rights, including the right of government not to interfere in your decision not to get a vaccine, is that a religious exemption? Most evangelicals, including in the recent case of the two evangelical seminaries—a Southern Baptist Theological Seminary and Asbury Seminary—who are suing the state of Kentucky over this right now, that is their position. This is a clear violation of their religious liberty, despite the fact that it’s mostly rights-oriented language kind of baptized with Bible verses. At least, that’s my take on that.
FASKIANOS: OK. Let’s go onto the next question. So I’m going to go next to Galen Carey.
CAREY: Hi. I’m Galen Carey with the National Association of Evangelicals.
So as a religious matter, we’re among those religious leaders who have been strongly encouraging acceptance of the vaccine, and as a matter of loving our neighbor as well as being good for us ourselves. But as an empirical matter, I have the distinct impression that the vaccine mandates may themselves actually be a threat to our public health by hardening opposition to them. And if we consider that the vaccine mandates, especially on companies, may in the end not actually produce that much more vaccination, and it takes employers off the hook because now they can just say, well, it’s a matter for the course, blah, blah, blah.
Whereas, without the mandates they may have put in their own private mandates just as a matter of business practice. So I wonder, is there any empirical evidence as to whether vaccine mandates are actually—have been shown to increase the rate of vaccination? Or do they actually, especially in our context now, maybe they actually work in the opposite direction?
MELLO: So I don’t think we have empirical evidence about that from COVID. Prior to COVID we had lots of evidence about vaccination mandates, and it’s all that they’re very effective in inducing compliance—again, because very, very few people object to most vaccines. You know, maybe it’s 1 percent, 2 percent, maybe 3 percent. But it’s a tiny fraction of the population. So even if you let those guys go with some flimsy objection, you do really, really well with mandates. Most people go along. When you’re in a 25, 35, 40 percent objector situation, as we are now, it’s a very different calculus.
And I share your concern that mandates, at the point at which they were imposed—which was beginning with colleges and private organizations starting June of this year and then now gradually extending down into school districts—at that point we were already pretty well saturated from the people who were interested in getting vaccines. There was, however, a group of people that I think there was reason to think could be picked up through mandates. It has surprised me to see how many people remain in the wait and see category now over a year—or, almost a year into the availability of the vaccine. And that cuts across a lot of different groups, but it’s especially high among certain ethnic minority groups, predominantly Latinos, where we really worry about COVID burden in that population.
So it was not irrational to think that by imposing employment-based requirements you could pick up a bunch of people who were not in the definitely not category. They were in the middle, or they were leaning, but hadn’t made up their mind. Or they faced access barriers still, that employers had a direct interest in rectifying once they were required to ascertain their vaccination status. The question is, at this point how much more mileage do you get out a mandate? And in particular, for me, how much are you going to get by mandating it for kids?
And there, I think the case is much, much more marginal. I think we’re down to, at this point, a pretty small group who are in the middle or the lean no categories. A much larger group, especially among Republicans, 31 percent, evangelical white Christians, 25 percent who are in the definitely not category. And I don’t see a mandate as doing much other than hardening resistance. That doesn’t mean people won’t comply. They may. But my concern, as somebody who works in public health, is what about the next vaccination? What about childhood vaccinations for their kids? Have we now reinforced a sort of siege mindset among people who don’t trust the government to make health decisions for them that could spillover into vaccines? Because, frankly, I’ll be much more concerned if those folks don’t take their kids in for measles vaccination than I am about COVID vaccination.
FASKIANOS: OK. The next question comes from Dr. Nehemia Gordon at Bar-Ilan University.
Some of those opposed to forced vaccinations have adopted, quote, “my body, my choice” as their motto. This sounds like a compelling argument. Why doesn’t this apply to forced vaccine mandates from both an ethical and legal perspective?
MELLO: Well, I think—(laughs)—it’s not clear what is meant by that. But of course, our dominion over our bodies has never been absolute. And the reason is that certain behaviors that we engage in or health decisions that we determine not to make affect other people, affects their health. And that’s why vaccination mandates have always been sustained historically, as have a limited number of other medical interventions that involve incursions into the body to prevent harm to others.
Again, up until very recently even hardcore Libertarians accepted this principle. This was, like, John Stuart Mill 101 that we all have an equal share of liberty, right up to the point where our exercise of liberty affects the liberty of others. And it’s really quite a modern concept to assert that one’s right over the body is absolute. Also, of course, ironic that many of the same voices espousing that theory have such interesting views when it comes to abortion.
FASKIANOS: Thank you.
Next question. We’ll take a spoken question from Douglas Kindschi. I hope I pronounced your name correctly.
KINDSCHI: Yes. You pronounced it correctly.
My question is a follow-up, I think, on the issue of religious liberty. And maybe it’s related also to the “my body, my choice.” What about when the objection to vaccine is extended to objections for actual testing? In our university, if you do get an exemption, you’re required to have weekly testing. But the same argument is now being used against weekly testing.
MELLO: Sure. And that makes sense, because if I think that I have absolute dominion over my body, that would extend to be required to stick a swab up my nose. It would extend to being required to divulge personal health information to my employer or my school. So it makes sense to me that people’s objections are not limited to needles and vaccines going into the body, because fundamentally, as we’ve talked about already, I think this has only something to do with the vaccine itself and has much more to do with the surrounding context for vaccination mandates, which is that many people already feel incredibly put upon by public health authorities as a result of living under all kinds of restrictions over the past two years, restrictions that have bankrupted businesses, torn families apart, created mental health problems.
They were sort of primed to hate any mandate for any kind of COVID-related intervention that imposes further burdens, even something as minimal as the testing. I mean, you can’t get much more minimal when it comes to intrusions than that. It takes literally thirty seconds, involves no pain, very little inconvenience, and the information is treated quite carefully, I think, as is required by law. So I think what you’re seeing here is a more generalized complaint that has something to do with the sanctity of the body, but maybe has more to do with just being fed up with the intrusion of government into people’s lives.
KINDSCHI: Is there a HIPAA issue here?
MELLO: No, there isn’t.
FEA: But I think just to add to that, Irina, at the sort of more macro, kind of cultural-intellectual level on this question, I mean, this idea of Libertarianism, as Michelle said, even Libertarians had this larger understanding some kind of social solidarity or of society. I think Jill Lepore has a good article at
The Guardian, for those of you who read American history, about the crumbling of this idea of society, right? I think you can see it really emerging in sort of the Reagan era, where you have individualism becoming so celebrated, at the expense of any kind of social solidarity, any sense of society.
I give book recommendations all the time to my students. There was a Princeton intellectual historian named Daniel Rodgers, who wrote a fabulous book in 2001 called
The Age of Fracture, in which he made the case that in the Reagan-era any sense of kind of community, national community, solidarity within community, love of—love of neighbor, if you want to put it in Christian terms, slowly began to erode. And you have people like Margaret Thatcher in the 1980s saying things like, “there’s no such thing as society,” right? We are individuals.
So I think there’s—, flying about thirty thousand feet on this, there are sort of long-term structural shifts that have taken place in American culture over the last fifty, forty years or so. That also explains this kind of emphasis on—this kind of Libertarian individualistic emphasis that I think is just blossoming right now with these vaccine—in opposition to these vaccine mandates.
FASKIANOS: Thank you. I’m going to take the next question from Shannon McAlister of Fordham University, who’s written a question. She’s directed it to you, Michelle.
Would you kindly share the sources, laws, courts decisions for the court’s practice of not requiring employees seeking religious exemptions to be members of established religions or to attend services or to provide a letter attestation from clergy indicating that the vaccinating is religiously prohibited? Maybe we can send that out in a follow-up email—
MELLO: Yeah, maybe I’ll just recommend, a good starting point would be to look at the Equal Employment Opportunity Commission’s website, EEOC, which has extensive guidance relating to accommodating religious exemption requests. That guidance specifically relates to federal civil rights statutes, but the analysis for constitutional claims is quite similar.
FASKIANOS: Great. The next question is from Patrick Stefan, who’s U.S. Army.
Interested in the ways by which courts are entering the fray of defining what religion is and what the boundaries of religion are. It seems that post RFRA the definition of religion has lost any sense of boundary that it might have had in the past based on Protestant Christianity. Thinking about the work of Winnifred Sullivan in particular. I’m wondering what your thoughts are on how the highlight of religion on such a large political and legal scale in our culture with COVID vaccines might shape the way the courts understand the boundaries between what makes something religious as opposed to philosophical or ideological.
FEA: I’ll let Michelle respond to that, but we no longer live in Will Herberg’s 1950 Protestant-Catholic-Jew synthesis anymore. I think, again with this age of fracture, the very definition of, is religion, I mean, that’s something for the courts to decide, obviously. But it’s always had a kind of transcendent kind of dimension to it. Almost a kind of faith-based irrational dimension to it. I think all religions in some ways have some degree of irrationality to it. But yeah, I mean, it doesn’t really matter what I think. I guess it matters, right, you show the courts decide on that, when it comes to vaccination.
MELLO: Yeah, and the issue is more general too. It transcends vaccination, as I’ve already talked about. It’s also been a major issue in challenges to stay at home orders and other public health interventions. I don’t know what’s going to happen. I do know that the so-called standards by which courts evaluate questions like what is sincere, what is religious, what is belief, are pretty squishy. Nobody’s really very happy with them. They (INAUDIBLE) a lot of different directions. I also know that the single most important legal development of the last four years has been the changeover in the Supreme Court towards the justices who are very strongly in favor of expansive protection for religious liberty.
So it would surprise me greatly if the Supreme Court got into the business of deciding that certain things were not religion or religious belief. It seems much more consistent with the worldview of the new conservative majority to say that they’re going to give religious belief claims a wide berth, and really require a very, very strong justification. It also seems possible to me that they’ll be able to sidestep core issues about what’s religious and what’s not using a trick that they’ve deployed over and over again in public health law cases, which is to instead focus on the specific question of is there something else the state could have done besides this thing—whether it’s a vaccination mandate, or a mask mandate, or whatever—that would have been less burdensome and worked just as well?
And then we get into a debate, not very well informed by science, about whether the thing that the state did was really necessary, or they could have done something different, is there a better policy out there? And we don’t have to confront hard questions about the scope of religious belief. So that’s where a lot of the fighting has been around. And again, because we have such good alternatives now to vaccination for COVID, if people are willing to do them—which most of the people who resist vaccines are not—but, if you’re willing to test twice weekly and wear a really good, solid mask everywhere you go, that works pretty well. So, there are opportunities to sidestep this question for a while longer. And I suspect the folks who are opposing vaccination mandates would probably like that to be the case, because I think this issue is not likely to be decided in a way that favors people who are trying to do intrusive things in public health.
FEA: It’ll be interesting to see because, again, the conservatives on the court are obviously, as Michelle said, very interested in these questions of religious liberty. But many of the conservative kind of vox populi, the evangelicals, the conservative Catholics, right, it’ll be interesting to see how they respond to when the Supreme Court makes a religious liberty case or defends the religious rights of, say, a Muslim, or a Native American Indigenous religion, or something to that effect. I mean, just from purely kind of political and cultural perspective. So, if you’re a member of the Christian right, be careful what you wish for when you want religious liberty to be protected, right?
FASKIANOS: Right. Just going to the idea of religious leaders—and, Michelle, you had mentioned that this is the first, and I don’t want to misquote you, but religious leaders coming out and speaking strongly about getting the vaccine. Saying they’re opposed to it, or not opposed to it, it’s in our religious doctrine or not. So is that the right approach? Probably not the right approach? Should religious leaders stay out of it? I mean, we’ve seen that there’s been a lot of push from the Biden administration to really have faith leaders help get the message out, because we’ve seen that people who may not trust government are more likely to respond to, be it a religious leader or, their medical professional friend. So what’s the balance? And, John, I’d love to hear your perspective too, because you also mentioned about past pastors in the three eras, four eras, that have spoken out or not spoken out. So where are we? What should religious leaders be doing?
MELLO: Yeah. I mean, I don’t think these statements are necessarily going to carry the day in court, but I do think they’re important. It’s important to clear up any confusion that may exist among adherents to a religious denomination about what their obligations as far as practitioners are. And even if there isn’t such confusion, as you mentioned, trust and leadership from the community are really critical components to making a vaccination campaign successful, especially in the political environment in which we live now. Up until COVID local public health leaders in government had the trust of an overwhelming sort of majority of the public. And when they asked people to do something, people did it.
And that’s not the case anymore. And so there need to be proxies in organizations that are trusted and are visible in the community. And I know that it’s not difficult for some religious leaders to say things that fly in the face of the governing prevailing political sentiment in the community, but I think it can be very important, again, for people who might have misapprehensions about what the religious beliefs require, but also for people who are just trying to find their way amidst a sea of conflicting messages—many of which contain information that’s not accurate, many of which are pushing a political agenda that is against the self-interest of a community.
FEA: And, I mean, one of the reasons why there was not a lot of push for religious exemptions or even religious opposition to vaccinations in the early 20 century was because in the progressive era there was this kind of common sense that you trusted experts, you trusted scientists, you trusted medical professionals, right? Much of the resistance has emerged with this—has coincided with this kind of emerging populism, right, that we see that distrusts experts, that distrusts science, and so forth. So, as far as religious leaders—and this cuts both ways, right? I mean, again, Biden has tried to get religious leaders to speak out.
But there are also very, very powerful religious leaders based on very little scientific evidence whatsoever who are promoting resistance to vaccines based upon these kinds of religious, spiritual kind of Christian things. Even going to the extreme—you all heard these crazy things like, you know, Satan or something is inside the vaccine, or the vaccine is whatever. And in a populist society, in which we’ve lost sort of trust in kind of science and experts and so forth, that’s really, really hard to overcome. So there are religious leaders, I think, that are also kind of problematizing this whole thing.
Then you have other people who you didn’t expect to—I’m thinking, again, the evangelical community is the community I know best. But you have, like, Franklin Graham, the son of Billy Graham, Robert Jeffress, the big pastor at Baptist Church of Dallas, who have come out and said, get the vaccine. In fact, Jeffress just recently opposed the requirement for mandates in the military—or, supported it, rather, in the military, which is outrageous—or wild, I should say—considering all the things he was saying during the Trump era.
So, but no one seems to be listening to these voices. It’s kind of like when Trump said he was going to get the vaccine and he got booed off—or, he said “get the vaccine.” He got booed off the stage, right? (Laughs.) If anybody is a kind of authority to many of these populist Christians it may be Donald Trump, but even that doesn’t work. So it’s a very complex situation. I’m not sure how to get around it or how to deal with it. But, I think it cuts both ways.
FASKIANOS: All right. I’m going to try to squeeze in this last question from Guthrie Graves-Fitzsimmons from the Center for American Progress.
Trump vs. Hawaii was one piece of evidence that the current SCOTUS justices do not apply their defense of religious liberty equally to Christians and non-Christians. What evidence is there that they would apply their thinking equally to all religious groups, and that they are not deferential to conservative Christians?
MELLO: I don’t know if I can answer that. I mean, for one thing, the court that we have now, it’s not the same court that we had at Trump vs. Hawaii. And I think that that case in which the court upheld Trump’s travel ban against an Establishment Clause claim on the basis that, well, while some non-Muslim countries weren’t implicated by the ban and—or, sorry—some Muslim countries were not implicated and some non-Muslim countries were implicated, it wasn’t a law respecting the establishment of religion. You know, it’s one data point, but it doesn’t directly give us information about how it would have viewed a similar challenge by a conservative Christian religion. So I simply don’t know whether the court’s expansive protection of religious liberty will be expansive enough to embrace all religions equally or not.
FASKIANOS: John, anything to—
FEA: No idea. No idea. (Laughter.)
FASKIANOS: All right. So I will give you each, like, thirty seconds to wrap up on and leave us with the one thing you want to leave us with.
FEA: Do you want me to go first, or you want to?
MELLO: Sure.
FASKIANOS: Sure.
FEA: I mean, I would just say from a historical perspective—and I think Michelle echoed these points too, we are in a new moment. Historians talk a lot about continuity with the past and also change over time. I think in terms of continuity,, there is still this argument about my body, my rights, please don’t interfere with my choices for my family and my children and so forth. So I think you see continuity there, all the way back to the early 19century on these issues. But there’s also been a profound change. And this is something new, I think, that we’re going through right now with the large numbers of vaccine-resistant people, or at least resistant to the mandate. So I think from a historical perspective I think it’s both/and, as if often is.
FASKIANOS: Michelle.
MELLO: I guess I would just end by saying it’s somewhat disappointing to me that these really weighty questions about religion and public health are being decided in this particular context, where, as John has said, there’s a lot mixed up in there that doesn’t really look like religion but may, and has, in my view, heavily influence the way judges resolve these cases. I would much prefer to see claims about religion fleshed out in a sterile context, where it’s clearly and truly burdening a recognized religious practice, and not a blurry situation where the line between religion and political ideology has been lost, and not in the lower courts, which especially given appointments over the last four years, have become very unpredictable places to have disputes resolved, especially for questions of first impressions.
So I guess, as I said before, one thing that worries me about all of this is that we will get some law coming out of this that is in many respects sui generis to this very unusual moment that we find ourselves in, yet is going to have profound, long-lasting implications for all kinds of things in the future in public health and outside of public health.
FASKIANOS: Very worrisome. Thank you both for your time today. This is a really important and informative discussion, and we really appreciate your bringing your expertise to it, and your perspectives. So thank you. Thanks to all of you for your questions. You can follow John Fea’s work on Twitter at @ johnfea1. And Michelle’s work at @michellem_mello. We also encourage you to follow CFR’s Religion and Foreign Policy Program on Twitter at @cfr_religion. And please email us at
[email protected] if you have suggestions for topics that we should cover in future webinars. So, again, thank you, Dr. Fea, Dr. Mello for all the work that you’ve done and are doing. And we look forward to continuing the conversation with all of you on the webinar. So thank you.
MELLO: Thank you.
FEA: Thank you.
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