By Dorit Rubinstein Reiss
Two major problems with granting religious exemptions to vaccine mandates are that they are very hard to police, and that they are routinely gamed.
Religious freedom is a core value in the United States. This makes policing religious exemptions to vaccination hard – and rightly so. The government policing people’s religion raises a number of thorny issues.
The problem is that the same people who eagerly promote anti-vaccine misinformation are just as eager to misuse religion to avoid vaccinating, and have no hesitation or compunction about coaching others to do the same. And without policing, it is easy for those misled by anti-vaccine misinformation to use the religious exemption.
In a recent hearing on a bill to remove Massachusetts’ religious exemption, a witness said that she used the religious exemption, “Not because it goes against my religion, but because I do not believe that it is necessary to put additional chemicals into my child’s body for an illness that she would fully recover from. You are proposing to take away my right as a parent and for what? To protect other people?”
This anecdote is not exceptional. In a previous paper, I pointed out that quite a bit of evidence suggests there is widespread misuse of religious exemptions.
This includes: statements from anti-vaccine activists who state publicly that they lied to get religious exemptions; surveys on the reasons people do not vaccinate; and the fact that most religions do not prohibit vaccines (in fact, many actively encourage or support them).
But cracking down on the misuse of religious exemptions is quite difficult. Employers, universities, or states offering religious exemptions cannot limit them to organized religion, because that would discriminate against those with sincere beliefs that are not part of an organized religion.
This makes sense, because the validity of your religious exemption should not depend on belonging to a religion that opposes vaccines. But it removes one tool that would help distinguish between those with sincere religious objections, and those using religion to cover other objections to vaccines.
Additionally, states cannot refuse an exemption to those whose interpretation differs from their religion’s doctrine regarding vaccination. It’s not the state job to enforce a religion’s rules on its believers, the state is tasked simply with assessing whether the religious objection is sincere. This too makes sense, but again, makes it harder to challenge religious exemption claims by members of religions that support vaccines. Assessing sincerity is tricky grounds. And dedicated anti-vaccine activists are exploiting these ambiguities to help people get religious exemptions.
While it is hard to examine closely, there is no reason to think most, or even a large share, of religious exemption requests to COVID-19 vaccines are from people whose opposition is religious. In fact, given the amount of misinformation about vaccine safety and the virus, chances are that most of the exemption requests are from people who do not want to get COVID-19 vaccines because of safety concerns or misinformation about the pandemic.
Granting exemptions on the basis of religion incentivizes these people to lie, and exemptions are more likely to be given to people who have lied well — for example, by getting input from anti-vaccine activists teaching others to game the system.
For example, Rita Palma, a New York-based anti-vaccine activist, has been actively promoting her site, My Kids, My Choice, which links to several resources on how to get an exemption, on her Facebook page.
Attorney Kevin Barry has, in a Facebook Live, promoted a Zoom webinar he is offering on how to get the religious exemption “right.”
“Later, we are going to have to see, if the religious exemption is approved, whatever restrictions the university might throw at you,” he explained during the live event. “We can find ways around that, but you’re have to get the religious exemption approved first and we are going to give you some strategies on how to do that.”
A relative newcomer, a student named Cait Corrigan, offered her followers five rules for getting a religious exemption, which include the following:
RULE #4 in writing a religious exemption: Do not mention c0v-id 19, side effects, or scientific data! Do not mention the V is under E-U-A. Your RE is a statement on your RELIGIOUS BELIEFS. Write about scripture, your religious history, & faith!
Finally, attorney Jim Mermigis has been touting the religious exemptions he wrote, calling for potential plaintiffs, and encouraging people not to vaccinate.
The tenor of all of these posts is to help people seeking exemptions get one. There is no emphasis on sincerity, instead, the advice is geared towards gaming the system.
I have said it before, and will say it again. A public policy that encourages people to lie and advantages the better liars — or those who have access to those who can teach them what to say — is a bad policy. In this case, the policy also benefits anti-vaccine activists exploiting the situation.
Implications for public universities
At present, the Supreme Court has not yet ruled that public universities requiring vaccines have to give a religious exemption. The Supreme Court has been tightening protection of religious freedom, but the guiding principle is still Employment Division v. Smith, which does not require a religious exemption from a generally applicable, neutral-on-its-face law. Universities may want to consider, on this background, not offering a religious exemption. Yes, there is a risk the Supreme Court will strike down such a rule. But, given the context — that it’s highly likely most exemption requests are from people without religious objections, and that many are selling services to help game exemptions — the Supreme Court may consider that universities are justified in not offering such an exemption.
If universities do offer religious exemptions, they may want to consider the need for careful enforcement, including examining, in detail, the advice of anti-vaccine activists, keeping a list of those openly working to game religious exemptions and looking for their involvement, and potentially interviewing individuals whose exemption requests raise red flags. They also can require a detailed exemption letter, and, in cases that raise questions, require independent corroboration — though they cannot limit that corroboration to organized religion. At the least, universities should plan how to reduce misuse of religious exemption, to avoid having exemptors undermine campus safety.