by Ed Mechmann

There is an old maxim in the law that “hard cases make bad law”. The converse is also true – “bad law makes hard cases”. Take the example of the controversy over religious exemptions to mandatory vaccination laws.

Let me make something clear right away. I am not anti-vaccine and I am not a vaccine skeptic. I am old enough to remember when the polio vaccine was considered a miracle, and I have known people who suffered from that horrible disease. I consider wide-spread vaccination to be an unqualified success in eliminating vast amounts of human suffering. I accept the universal conclusion of public health authorities that vaccines do not cause conditions like autism or weaken the immune system, etc. I do not accept the conspiracy theories that make the rounds of the internet and social media. I’m not interested in debating these points or writing about them. If anyone is interested in the Church’s teaching on this topic, please see these FAQ’s from the National Catholic Bioethics Center.

My concern is about the religious liberty implications of mandatory vaccine laws. Until earlier this year, New York permitted a parent to petition their child’s school for an exemption from mandatory vaccination, based on “genuine and sincere religious beliefs” (former Public Health Law § 2164(9)). Only a very tiny number of religious exemptions were granted every year – fewer than 0.8% of school children. The availability of the exemption has been controversial for some time, because it has been suspected that some parents are actually using it based on non-religious beliefs about the safety of vaccines.

Until recently, this was really a low-level controversy. However, in the past few years, there have been episodic outbreaks of measles in areas where vaccination rates are relatively low due to religious objections. Again, without getting into the merits of those objections, public health authorities began to clamor for an end to the religious exemption. In June of this year, our State Legislature repealed the exemption.

Here is the where I am deeply concerned about the implications for religious liberty. A coalition of parents sued New York State, arguing that the removal of the exemption violated their religious liberty. Just the other day, a state court in Albany denied their request for an injunction against the law. With the school year looming, the parents are thus facing an impossible dilemma – either violate their religious beliefs, remove their children from school and teach them at home, or leave the state.

The court’s decision was largely based on two past decisions, one by the Supreme Court ( Employment Division v. Smith) and one by our New York State Court of Appeals ( Catholic Charities v. Serio). These decisions were disastrously wrong about the meaning of the Free Exercise Clauses of our state and federal constitutions and have made it virtually impossible for a person to claim an exemption from a law that imposes a serious burden on their religious beliefs.

This, in a nation that has long respected the right of religious minorities to refrain from doing things that are otherwise required, out of respect for their religion. Prior to those cases, there was a long line of court decisions and statutes that allowed Quakers to decline military service or anything related to it, Jehovah Witnesses to sit during the Pledge of Allegiance, Jews and others to avoid working on the Sabbath, to refrain from saying things that are inimical to their faith, and so on. There was robust protection for religious freedom and freedom of conscience.

Of course, religious freedom is not unlimited – it cannot be exercised if there is a serious threat to public order and the common good. And there is a significant argument that mandatory vaccination laws would satisfy that standard. But under the Smith and Serio decisions, the government doesn’t even have to show that the public need outweighs the burden on the person’s faith. Smith and Serio both knock the religious believer completely out of the box if the law is considered “neutral” and “generally applicable” – no exemptions are required for anyone for any reason. Serio even goes so far as to say that the religious believer has the onus of proving that the law is an unreasonable restriction of their faith – contrary to the traditional principle that government always bears the burden of justifying actions that infringe upon constitutional rights.  

These decisions apply a different and lower standard to violations of religious freedom than apply to any other constitutional right. Compare this with the deeply deferential treatment given to abortion rights or “gay rights”, which are never mentioned in any constitution and have no roots in our nation’s history or tradition, and you can see the twisted effect of bad law. It’s this bizarre legal situation that allowed the court in the vaccine case to argue that the deliberate removal of the religious exemption “does not in and of itself turn the law into one that targets religious beliefs”. That can only be described as pretzel logic, and its absurdity is patent on its face.

The law right now shows contempt for religious belief and makes religious believers second-class citizens, where their most deeply-held principles are given virtually no respect and their duties towards God are dismissed as irrelevant. Our nation was founded on the notion that religious faith was worthy of tremendous respect, and that it was an act of tyranny to force someone to violate their beliefs. Regardless of what one thinks about vaccinations, this hostility towards religion should be a very grave concern for all.