By Donna Gitter
In 2021, the Supreme Court articulated in Tandon v. Newsom a legal principle that threatens to upend over a century of legal precedent recognizing the authority of state governments to ensure public health by mandating vaccines.
The ruling lays the groundwork for courts to force states to include religious exemptions to mandatory vaccines whenever they include secular exemptions, such as medical ones.
Tandon, a religious rights case unrelated to vaccines, arose in March 2020 during the start of the COVID-19 pandemic in the U.S., when the governor of California issued executive orders limiting both secular and religious in-home gatherings to members of three households or less. Religious believers brought a First Amendment challenge arguing that religious in-home gatherings must be exempted from the limitation because various secular businesses were not subject to the same limitation.
At that time, California restricted in-home gatherings while allowing more than three households to gather inside public transportation; establishments that provide personal care, like salons; government offices; movie studios; tattoo parlors; and other commercial spaces. The State’s rationale was that social gatherings presented a particular risk because people had longer interactions, particularly face-to-face conversations, and were not subject to state mandates regarding masking and social distancing. The Supreme Court refused, however, to defer to the California’s assessment of which activities were comparable to one another for the purposes of the state executive order.
The Tandon decision altered First Amendment precedent, which had held for decades that neutral and generally applicable laws that do not target specific religious practices are presumed valid under the First Amendment Free Exercise Clause. The Supreme Court upended that precedent by declaring that even if a law applies widely to both secular and religious conduct, the Court would not consider that law neutral toward religion if it treated any comparable secular activity at all more favorably than the restricted religious activity.
In enjoining enforcement of identical restrictions on in-home gatherings, whether religious or secular, the Supreme Court imposed a broader ‘most favored nation’ approach to religious-exemption claims. The concept of most-favored-nation derives from a principle of international trade law, which provides that a host state must treat all of its trading partners equally, and if the host state lowers a tariff for one trading partner, it must lower it for all trading partners. It threatens public health to interpret this principle to mean, as the Supreme Court seems poised to suggest, that the existence of a secular medical exemption to vaccine mandates means that a state must offer a religious exemption.
Such an approach is not supported by the law and will lead to dangerous consequences for a nation facing outbreaks of polio and monkeypox, alongside the ongoing threat of COVID-19. For over a century, state governments, guided by medical experts, have made public health decisions, including vaccine mandates, particularly in times of disease outbreak. Throughout that period, federal courts have respected those decisions. When considering its very first constitutional challenge to a vaccine mandate in 1905, the Supreme Court declared that there are “manifold restraints to which every person is necessarily subject for the common good.”
In the decades that followed, courts have held that states do not need to offer religious exemptions to vaccination when adjudicating challenges from religious believers that such mandates violate their First Amendment right to practice religion freely. Indeed, courts have regarded it as well settled that society’s interest in protecting against the spread of disease takes precedence over religious beliefs. Going even further, the Mississippi Supreme Court held over three decades ago that not only is religious exemption for mandatory vaccination not required, but that religious exemptions to mandatory vaccination actually violate the Fourteenth Amendment Equal Protection Clause. The Mississippi Supreme Court recognized the state’s obligation to protect vaccinated children from the risk of associating with classmates who invoked religious exemptions to vaccination.
Presently, among the fifty U.S. states and the District of Columbia, all mandate vaccinations against certain diseases, such as measles and polio, in order for students to enter day care or school. Six states — California, Connecticut, Maine, Mississippi, New York, and West Virginia — do not offer religious exemptions from state vaccine mandates for students in grades K to 12.
Health care workers in Maine and New York have brought constitutional challenges to the state vaccine mandates, alleging that the absence of religious exemptions violates their First Amendment rights. But it is important to note that mandatory does not mean compulsory; individuals are not forced to be vaccinated. Instead, those who decline vaccination may be denied certain privileges, such as the right to attend school or work in a particular sector.
The Supreme Court should recognize that a state behaves neutrally and without religious animus when it offers medical exemptions to vaccine mandates while prohibiting religious ones. The former actually further a state’s interest in promoting public health, unlike religious exemptions, which subvert this goal.
Second, as the Supreme Court itself noted decades ago, in a religious rights case, religious exemption claims could potentially be used to defeat “civic obligations of almost every conceivable kind,” including laws proscribing animal cruelty, child labor, child neglect, discrimination, and drug use, as well as laws requiring a minimum wage, military service, tax payments, and, indeed, mandatory vaccination. In that decision, the Court cited favorably a lower court decision upholding a manslaughter conviction against parents who sought to avoid a criminal charge based on their belief that religious practice rather than medical care would heal their sick infant, who ultimately died of pneumonia. The Supreme Court also has denied exemptions from federal drug laws to religious users of marijuana.
Further, mandatory vaccination laws are constitutional because they regulate behavior but not belief. Those subject to vaccine mandates that violate their religious precepts may continue to adhere to their religious beliefs and refuse vaccination if they wish to do so, but may be denied the opportunity to work in certain jobs or attend school. An individual’s personal religious belief does not entitle that person to harm others, and previous vaccine jurisprudence has established that states have the right to make such determinations regarding public health. Compliance with state vaccine mandates protects children who are too young to be vaccinated, individuals who cannot be vaccinated for medical reasons, people who are immunosuppressed, and, frankly, everyone, since no vaccine is one hundred percent effective.
As Thomas Jefferson declared, “it does me no injury for my neighbor to say there are twenty Gods, or no God. It neither picks my pocket nor breaks my leg.” However, as the pandemic has made clear, public health can be preserved only when we share a commitment to protect one another and empower our elected leaders to reach decisions driven by science, not religious belief.
Donna M. Gitter is a Professor of Law at Baruch College’s Zicklin School of Business, City University of New York, in New York City.