The wall of separation between church and state is a perennial conflict in the United States. While freedom of religion is a protected civil liberty in the United States, so is, in nearly every sense, life. In the world of Covid-19, these two notions regularly come into conflict. One instance of this phenomenon is the conflict over religious exemptions for Covid-19 vaccines at US colleges. There is no doubt that religion must remain a sphere separate from government intervention, lest the freedom to practice faith come closer to shattering. In the realm of higher education, however, American universities should not permit students to obtain religious exemptions for Covid-19 mandates.
Private universities, unlike public institutions, are subject to statutory law rather than the Constitution, but a constitutional analysis of religious exemptions answers the normative question of why exemptions should be abolished at all colleges. When the Supreme Court analyzes cases related to religious freedom, it historically has conducted an informal sincerity test to determine if the claimants have a legitimate religious objection to the law. The Court must also determine whether the law is neutral and generally applicable, meaning that it does not specifically target a single group’s religious practices. Laws that are determined not to be generally applicable are then subject to the strict scrutiny test, through which the Court determines whether there is a compelling governmental interest in imposing the law anyway. Vaccine mandates at American colleges would pass this constitutional process, rendering religious exemptions illegitimate.
Religious exemptions for Covid-19 vaccinations are fairly common at American universities. NBC News surveyed over 800 colleges that have imposed vaccine mandates and found that 80 percent permit students to cite religious faith as a reason for not receiving the vaccine. However, most major religious denominations in the United States do not oppose Covid-19 vaccinations. In fact, many religious groups have joined the majority of the country in heralding the vaccine as a miraculous and vital life-saving mechanism. This reality raises the question: If sincere religious beliefs are unlikely to preclude people from getting the vaccine, how often are religious exemptions exploited by those who simply oppose vaccinations in general? It is impossible to get comprehensive data on this phenomenon, but it certainly exists. A legal group called Heritage Defense disseminates free information on how parents can avoid immunizing their children via religious exemptions. In Tulsa, Oklahoma, Pastor Jackson Lahmeyer has promised to sign the religious exemption forms of anyone who donates to his church–within two days of his announcement, 30,000 people expressed interest. Anti-vaccine advocates can also turn to burgeoning private Facebook groups to get tips on how to manipulate religious exemptions to avoid vaccine mandates. Particularly given the inordinate amount of misinformation about the efficacy of Covid-19 vaccinations, it seems likely that many people, including college students, request exemptions on the basis of vaccine hesitancy rather than sincere religiosity.
Further arguments supporting religious exemptions extend beyond the sincerity test to neutrality and general applicability concerns. In the 1990 Supreme Court case Employment Division v. Smith, the Court ruled that members of the Native American Church, whose religion dictates the use of the drug peyote for spiritual reasons, could not be exempt from laws against ingesting the drug. The majority’s reasoning, written by Justice Antonin Scalia, was that if generally applicable laws such as the prohibition of peyote have merely incidental impacts on religious practices, they automatically do not violate the First Amendment. However, supporters of religious exemptions argue that vaccine mandates are not generally applicable because medical exemptions are almost always granted. This specific argument relates to the 2020 case Fulton v. City of Philadelphia, in which the Supreme Court ruled that Philadelphia could not refuse to contract with a Catholic foster care agency that rejected certification to same-sex couples. The city’s argument centered around a non-discrimination provision in its contract with the foster care agency, but the majority decision reasoned that this provision was not generally applicable because it permitted other, nonreligious exceptions “at the sole discretion of the Commissioner.” When it comes to vaccines, some use this line of reasoning to conclude that the presence of medical exemptions violates the neutrality and general applicability of vaccine mandates.
There is debate over whether that general applicability argument is legitimate, given that allowing medical exemptions can hardly be construed to target a particular religion. However, if the Court agreed that vaccine mandates are not generally applicable, universities would then have to pass the strict scrutiny test to prove that they have a compelling interest in disallowing religious exemptions. Arguably, they do. College students live, eat, and constantly interact with each other. When there are a greater number of unvaccinated students in the population, the Covid-19 virus spreads more quickly. The risk of a vaccinated person getting seriously sick from exposure to an unvaccinated person may be quite low, but that does not justify disregarding it entirely. Universities have an overriding interest in protecting the health of their student bodies, and while allowing medical vaccine exemptions supports this interest, religious exemptions hinder it. This is particularly true on campuses where the numbers of religious exemptions are extremely high; for example, at Indiana University, nine percent of the school’s population has been permitted to remain unvaccinated due to claimed religious or philosophical values.
Another facet of the strict scrutiny test is whether the law is narrowly tailored to limit its impact on religious freedom. In August 2021, the US District Court for the Western District of Michigan decided that Western Michigan University’s denial of religious vaccine exemptions was not narrowly tailored because it refused students the option to undergo increased testing and mask requirements in return for remaining unvaccinated. Yet, masks and tests are hardly equivalent to a vaccine, particularly if unvaccinated students are eating in dining halls, going to parties, and fully participating in campus life. This alternative would violate the compelling interest of the university such that the narrowly tailored argument holds little ground.
Religious exemptions for the Covid-19 vaccine at American colleges definitively do not benefit student populations, and though the topic remains in dispute, a constitutional analysis seems to indicate that universities have a compelling interest in abolishing the exemptions. If college students at vaccine-mandated universities wish to remain unvaccinated, they are the ones who should go somewhere else, not the majority of vaccinated classmates their choice threatens. After all, colleges do not have to mandate Covid-19 vaccinations. In fact, of the 50 largest public universities in the United States, 26 do not require students to get the vaccine, a reality that entirely eliminates the religious exemption debate on those campuses. At colleges that do mandate the Covid-19 vaccine, however, the manipulation of religion as a tool for vaccine avoidance is both insulting to legitimate religious principles and damaging to the public health of the wider school community. After a year and a half of online school, lost in-person experiences, and health-related stress, students deserve to feel safe on their college campuses. It is their well-being, not that of a small minority of anti-vaccine students, that must be prioritized by the American universities in which students place their trust.