Measles was once a public health scourge: About 6,000 people died from it on a yearly basis from 1912 to 1922, and as late as the 1950s, about 48,000 people were hospitalized for measles annually.
Given its high mortality and morbidity rates, measles was an ever-present shadow in nineteenth and early-twentieth-century communities; most people knew, or at least knew of, someone who had suffered from a serious case of the disease. Today, on the other hand, few Americans have more than a vague grasp of the disease’s symptomology. In fact, in 2000 the Centers for Disease Control and Prevention (CDC) declared measles eradicated.
This rapid transformation of American public health is attributable to the introduction of the measles vaccine in 1963.
Fifteen years after the CDC’s declaration of the triumph over measles, however, the disease was back in the news in 2015. An outbreak ultimately traced to Disneyland sickened 157 people.
If an effective measles vaccine is now widely available, why did this outbreak occur? The answer is that an increasing number of parents do not vaccinate their children.
Although studies linking childhood vaccination with autism are now widely discredited, these studies have contributed to the growth of a public movement against vaccination.
Colloquially known as the “anti-vaxxer” movement, it is prominent in certain wealthy, educated communities.
Though parents who do not vaccinate their children are decidedly in the minority, they were sufficiently vocal to compel 2016 presidential candidates to address the issue of vaccination.
While vaccination is a hot political topic, it is largely settled as a matter of law. Ever since the Supreme Court’s 1905 decision in Jacobson v. Massachusetts,
state governments have possessed the authority to enforce mandatory vaccination laws. Furthermore, courts have long recognized that states are not required to provide religious exemptions to these vaccination mandates,
though most do.
The Supreme Court recently denied certiorari in a Second Circuit case that rejected substantive due process and free exercise challenges to a vaccination requirement, indicating that the Court does not plan to change its stance on the constitutionality of compulsory vaccination anytime soon.
In contrast to the stability of the compulsory vaccination doctrine, the law of religious exemptions generally is in a state of greater upheaval. This Note will place the recent surge in religious exemption claims—most notably, claims for religious exemptions from the Affordable Care Act’s
contraceptive-coverage requirement and from statutes prohibiting discrimination in public accommodations—in the context of vaccination law. In light of the Supreme Court’s recent decision in Burwell v. Hobby Lobby,
it is unclear how courts should respond to the new spate of religious exemption challenges. More recently, in remanding Zubik v. Burwell to the circuit courts, the Supreme Court specifically declined to describe how courts should determine the balance between free exercise values and the government’s interest in ensuring full health care coverage.
Thus, the heated judicial and scholarly debate remains active, and the questions about how courts should weigh the burdens faced by parties seeking religious exemptions with the burdens regulatory beneficiaries would face if the exemptions were granted remain live. The long-settled—yet relatively neglected—treatment of religious exemption claims in the compulsory vaccination context offers conceptual and doctrinal resources that can help resolve this debate.
This Note proceeds in three parts. Part I summarizes current religious freedom and vaccination law. This Part pays particular attention to the Religious Freedom Restoration Act and its state equivalents, since many claims for religious exemptions (including the one at issue in Hobby Lobby itself) arise from these statutes. Part II analyzes the Supreme Court’s reasoning in Hobby Lobby and scholarly reactions to it, focusing on doctrinal confusion over the extent to which courts should consider third-party harms when granting religious exemptions. Finally, Part III proposes that vaccination jurisprudence offers a way out of this doctrinal confusion. Specifically, this Part demonstrates that the substantial burden analysis in vaccine-exemption cases has historically included a consideration of third-party harms, and it argues that such an analysis is equally appropriate in more contested areas of religious exemption law.
This Part begins with a discussion of the Supreme Court’s Establishment Clause
jurisprudence in section I.A, which notes the various tests that have been applied to determine whether a given government action violates the Establishment Clause. Section I.B will then address the Supreme Court’s Free Exercise Clause
jurisprudence and Congress’s enactment of the Religious Freedom Restoration Act (RFRA)
and Religious Land Use and Institutionalized Persons Act (RLUIPA).
In discussing both the Free Exercise and Establishment Clauses, this Part will analyze the role that third-party harms play in courts’ discussions of religious freedom claims.
Following the analysis of the Supreme Court’s religious freedom jurisprudence, this Part turns to the law of vaccination. Section I.C.1 analyzes the leading Supreme Court cases on vaccination, Jacobson v. Massachusetts
and Zucht v. King,
and a related discussion of vaccination law in Prince v. Massachusetts.
This section will also discuss why religious freedom claims—rather than Fourteenth Amendment due process claims—have become the predominant avenue for challenging vaccination programs. Section I.C.2 proceeds to address state law on vaccination, analyzing state vaccination programs, including statutory provisions for religious exemptions. It will also discuss how state and federal courts have dealt with religious freedom challenges to these vaccination and exemption schemes and identify the features of schemes that tend to be upheld.
A. Establishment Clause
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.”
Professor Frederick Gedicks and Rebecca Van Tassel describe this clause as “a structural bar on government action rather than a guarantee of personal rights”;
the Free Exercise Clause,
discussed below, has filled the complementary latter function.
The Supreme Court has, at various times, laid out different tests for determining whether a government action violates the Establishment Clause, including the Lemon test of Lemon v. Kurtzman
and the “endorsement test,” discussed, for example, in County of Allegheny v. ACLU.
However, the Court has decided a number of Establishment Clause cases without using either test
and, as will become relevant in the discussion of Burwell v. Hobby Lobby,
has seemed to find no Establishment Clause problem
Cutter v. Wilkinson
provides an interesting illustration of the interplay between consideration of third-party harms and the Court’s Establishment Clause jurisprudence. The Cutter Court rejected an Establishment Clause challenge to RLUIPA, but it stated that “[p]roperly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”
The case was brought by a group of prisoners, each of whom practiced what was termed a “nonmainstream” religion.
Petitioners contended that the prison failed to abide by § 3 of RLUIPA (which forbids the imposition of a “substantial burden” on federal prisoners’ free exercise of religion
) since it did not accommodate their religious beliefs.
The prison had moved to dismiss on the grounds, inter alia, that this provision impermissibly privileged religious rights above other rights in violation of the Establishment Clause.
The Supreme Court rejected this challenge—but offered several examples of countervailing concerns about third-party harms that might outweigh the interest in religious accommodation.
In the case at hand, the Court remanded because the record below was insufficient to determine whether the burdens to nonbeneficiaries were too great to justify granting the accommodation.
At least two other Supreme Court cases, Estate of Thornton v. Caldor
and Texas Monthly v. Bullock,
are relevant to a discussion of impermissible imposition of third-party harms.
In Caldor, the Court rejected a state law granting employees a right not to work on their chosen Sabbath.
In Texas Monthly, a plurality of the Court rejected a law exempting religious newspapers and magazines from a state sales tax.
In both cases, the Establishment Clause problem the Court identified related to the State’s disregard for the possibility that the laws in question would have negative effects on third parties. The Court clearly articulated this value in Caldor:
[The statute’s] unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses, so well articulated by Judge Learned Hand: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” As such, the statute goes beyond having an incidental or remote effect of advancing religion. The statute has a primary effect that impermissibly advances a particular religious practice.
The court in Caldor applied the Lemon test
and found that the Connecticut statute impermissibly advanced religion.
But the Court also emphasized, as shown in the quote above, that this impermissible advancement was clear from the disregard the Connecticut statute manifested for potential harms imposed on employers and fellow employees.
In other words, in Caldor, the fact that the statute at issue facilitated Sabbath observers’ exercise of religion at the expense of nonbelievers illustrated and signaled the Establishment Clause violation.
In Texas Monthly, burdens on nonbeneficiaries were similarly central to the Establishment Clause analysis. The Court identified the tax exemption at issue as burdening those ineligible for it “by increasing their tax bills by whatever amount is needed to offset the benefit bestowed on subscribers to religious publications” and noted that “[t]he fact that such exemptions are of long standing cannot shield them from the strictures of the Establishment Clause.”
The Court did not discuss in detail the facts that led to the determination that the tax exemption imposed a measurably increased financial burden on subscribers to nonreligious publications but seemed instead to regard the likelihood that a financial burden would be imposed on nonbeneficiaries as sufficient to create an Establishment Clause violation.
It is clear from Cutter,
that courts must consider the extent to which granting a religious exemption burdens or imposes harms on nonbeneficiaries (i.e., third parties). Even under the RLUIPA–RFRA framework, the Court has indicated that in some cases, extreme public safety concerns or other third-party harms could necessitate the denial of an exemption.
B. Free Exercise Clause
The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].”
The standard the Supreme Court has applied in evaluating free exercise claims, like the standard applied for Establishment Clause purposes, has varied with time. Two midcentury cases, Wisconsin v. Yoder
and Sherbert v. Verner,
are often viewed jointly as the high-water mark of free exercise protection (and, indeed, are consequently referenced in RFRA
). The Court in Sherbert held that the denial of unemployment compensation, when an employee had quit because of her religious practices, violated the Free Exercise Clause.
In so deciding, the Court stated, “‘[I]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.’”
In Yoder, the Supreme Court held that members of the Amish community cannot be required to send their children to school beyond eighth grade,
and the Court used similarly strong language on religious exercise:
[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.
Notably, though Yoder expressed a very high standard for government interests that could overcome individual free exercise rights, it did indicate that such interests do exist. The Court made a point to note that no “harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred,”
and it cited Jacobson v. Massachusetts,
a Supreme Court case upholding a state vaccination law, by way of comparison.
Almost two decades after Yoder and Sherbert, considered to be full-throated expressions of free exercise rights, the Court took a different approach in Employment Division v. Smith.
In that case, the Court held that the State need not satisfy strict scrutiny as to a neutral, generally applicable law that happened to affect religious exercise.
In response to the Smith decision, Congress passed RFRA, which requires that the government demonstrate a compelling interest and adopt the least restrictive means whenever it substantially burdens a person’s free exercise of religion.
RFRA was an explicit attempt to return to Yoder and Sherbert’s stricter standard for the analysis of free exercise claims.
Although RFRA initially purported to constrain states as well as the federal government, the Supreme Court held in City of Boerne v. Flores that Congress exceeded its Fourteenth Amendment authority in applying RFRA to the states.
Following that decision, Congress enacted RLUIPA
to remedy RFRA’s defects: RLUIPA applies only when the substantial burden is imposed by a state program that receives federal funding,
when it affects interstate commerce,
and in certain cases in which the burden affects the implementation of land use regulations.
Federal free exercise claims now arise under RFRA and RLUIPA; moreover, many states have enacted their own religious freedom restoration acts,
some of which, controversially, do not even require a “substantial” burden before strict scrutiny is triggered.
Claims for religious exemptions may arise under a state RFRA, under the federal RFRA or RLUIPA, or under the Constitution’s Free Exercise Clause. It is important to recognize, though, that these state and federal statutes impose an additional level of statutory protection for free exercise, beyond that which the Supreme Court in Smith held to be constitutionally required.
Moreover, both statutes provide that they are not intended to affect the Supreme Court’s Establishment Clause jurisprudence.
There is a strong argument deriving from Cutter, Caldor, and Texas Monthly that the Establishment Clause mandates consideration of third-party harms.
As a result, some have argued that when a religious exemption would impose harms on third parties sufficient to cause an Establishment Clause violation, the exemption is constitutionally barred before any statutory balancing test is applied.
However, this approach is complicated by the fact that RFRA and RLUIPA have themselves developed “quasi-constitutional status,”
at least according to some courts.
Moreover, the Supreme Court has decided some free exercise cases in a manner that, as Professor Gedicks and Van Tassell argue, “exhibit[s] the same aversion to cost-shifting accommodations as is manifest in its Establishment Clause decisions.”
United States v. Lee
and Tony & Susan Alamo Foundation v. Secretary of Labor
both illustrate Supreme Court precedent for resisting religious accommodations asserted on free exercise grounds when the accommodations impose costs on third parties.
Lee dealt with an employer who raised religious objections to paying Social Security taxes on employees;
Alamo Foundation involved an employer who objected on religious grounds to paying employees a minimum wage.
In both cases, the Court discussed the effects an exemption would impose on third parties as militating against the allowance of such an exemption on free exercise grounds. In Alamo Foundation, the Court noted that “exceptions to coverage would affect many more people than those workers directly at issue in this case and would be likely to exert a general downward pressure on wages in competing businesses.”
In Lee, the Court focused on the importance to the social security system as a whole that all employers participate:
The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees. . . . The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system.
Moreover, the Court in Lee assumed the sincerity of the employers’ beliefs and accepted their contention that their beliefs conflicted with the requirement of making Social Security payments.
Even assuming the sincerity of the employers’ beliefs and finding the existence of a violation of their free exercise rights, the Court in Lee would not countenance the “impos[ition] [of] the employer’s religious faith on the employees”
who did not share that faith.
Though the RFRA framework, as discussed, protects free exercise of religion to a greater extent than is constitutionally required, the aforementioned Supreme Court precedent in the area of free exercise mandates at least some consideration of third-party harms.
In other words, regardless of the statutory standard that is applied, given this precedent, third-party harms must be part of the free exercise analysis.
1. Supreme Court Cases. — The Supreme Court has spoken directly on vaccine-related issues only twice. The seminal case is Jacobson v. Massachusetts, in which the court rejected a Fourteenth Amendment challenge to a mandatory smallpox vaccination,
holding that it was a constitutional exercise of the State’s police power to require this vaccination.
The Court acknowledged that it had not specifically delineated the outer constitutional limits of the State’s police power but stated it had “distinctly recognized the authority of a State to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States.”
The Court rejected petitioner’s argument that the State unconstitutionally invaded his liberty by providing a fine or imprisonment as punishment for refusing to submit to a compulsory vaccination law.
Asserting the general principle that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,”
the Court found that given the increasing prevalence of smallpox in Cambridge, “it cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety.”
Jacobson does not deal with a Free Exercise Clause or Establishment Clause challenge to a vaccination requirement, and it was also decided before the First Amendment was held to apply to the states.
Consequently, it does not directly address the viability of free exercise challenges to vaccination laws. However, Jacobson certainly establishes that vaccination regimes fall well within the State’s police power—despite the element of infringement of bodily control inherent in mandatory vaccination programs
—provided these programs do not contravene any other constitutional requirement.
The second Supreme Court case to address the constitutionality of a vaccination law was Zucht v. King, in which the Court upheld a San Antonio city ordinance requiring students to be vaccinated in order to attend public or private schools.
The challenge to the ordinance, like that in Jacobson, was premised on the Fourteenth Amendment: The petitioner alleged deprivation of liberty without due process.
and following cases,
the Supreme Court again concluded that the ordinances fell within the local government’s broad power to protect public health interests.
The Supreme Court indicated in Jacobson and Zucht that it would be highly unlikely to invalidate a vaccination requirement on Fourteenth Amendment due process grounds.
It is likely that this route to challenging a vaccination requirement, or a student’s exclusion from school for failure to comply with vaccination requirements, is effectively foreclosed for the foreseeable future.
This reality may be one reason why people who do not want to vaccinate their children—possibly for any number of reasons
—now often seek religious exemptions.
This state of affairs is analogous to Professor Elizabeth Sepper’s account of the replacement of the economic substantive due process claims of the Lochner
era with religious liberty claims.
The Supreme Court has ruled on the constitutionality of vaccination regimes on the aforementioned two occasions only. However, in a 1944 case, Prince v. Massachusetts,
the Court addressed in another context the tension between the parental rights to control children’s upbringing and the State’s interest in providing for the public health and welfare.
In Prince, a Jehovah’s Witness challenged a child labor statute that prohibited children from distributing materials and fundraising in public streets.
The Court held that Massachusetts did have the power to prohibit child labor in this context without violating the parents’ free exercise or equal protection rights.
Some of the Court’s comments in support of the general proposition that the family can be regulated in the public interest are particularly relevant to the vaccination context.
The Court said that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
In brief, although the Supreme Court jurisprudence in the area of vaccination is limited, at least three points are clear. First, generally speaking, the Court has taken a broad view of the States’ ability to create vaccination regimes in exercise of their police powers and in protection of public health.
Second, the risk of “expos[ing] the community” to health hazards functions as a major counterweight to the liberty interests of an individual who does not want to abide by a vaccination requirement.
Third, even in light of the tradition of protecting parents’ rights to raise their children as they see fit,
the interests of the children and of the community at large also weigh against the allowance of exemptions to state regulations enacted to protect public health and safety.
1. State Approaches. — All states have laws mandating that children receive certain immunizations before starting school,
and all states also allow medical exemptions to these requirements.
Moreover, almost all states allow religious exemptions;
the only states that do not are Mississippi,
and—most recently, and in direct response to a highly publicized measles outbreak at Disneyland
Of the states that do allow for religious exemptions, eighteen also allow for philosophical or personal-belief exemptions.
Following Jacobson and Zucht, courts have recognized that states are not required to provide religious exemptions to laws imposing vaccination requirements.
Free exercise challenges to the vaccination requirements therefore tend to fail, and restrictive religious exemption schemes have generally been upheld.
For example, the Mississippi Supreme Court held in 1979 that the State’s interest in preserving public health and in protecting children overwhelmed any religious objection to the state vaccination requirement.
More recently, the Second Circuit, invoking Jacobson and Prince, upheld the dismissal of a free exercise challenge to a New York regulation
that required unvaccinated children to be excluded from school during the outbreak of a vaccine-preventable disease.
The Second Circuit has also been notable for upholding denials of religious exemptions for lack of sincere religious belief.
In general, state courts have struck down religious exemption schemes only when they appear to make exemptions more readily available to holders of certain types of religious beliefs.
For example, an Arkansas district court invalidated a religious exemption provision that was “limited . . . to members or adherents of a recognized church or religious denomination.”
The court found that the statute requiring vaccination as a precondition for school enrollment was constitutional.
However, the Arkansas court, its decision again highlighting that the states are not constitutionally required to provide any exemptions from vaccination requirements,
concluded that the religious exemption itself violated the Establishment Clause for three reasons. Applying the Lemon test, the court found that the exemption provision, limited as it was to members of “recognized” groups, had the primary effect of “inhibit[ing] the earnest beliefs and practices of those individuals who oppose immunization on religious grounds but are not members of an officially recognized religious organization.”
Moreover, the court determined that the exemption required the State to involve itself too much in religious matters, in determining whether an organization merited official designation.
The court also noted that the exemption provision’s “preferential restriction” violated the Establishment Clause’s “principles of governmental neutrality.”
Similarly, Maryland’s Court of Appeals held that a religious exemption limited to “members or adherents of recognized churches or religious denominations, the tenets of which prohibit immunization,”
violated the Establishment Clause.
The court held that the provision contravened principles of government neutrality
because individuals who held religious beliefs not associated with any religious denomination were unable to obtain the exemption.
Courts in New York,
have struck down religious exemption schemes on similar grounds. In each case, the religious exemption scheme was severed from the statute and the vaccination mandate remained intact.
As these cases highlight, even when courts have found in favor of the challengers seeking the allowance of a religious exemption, they have made it clear that the State is not constitutionally required to provide a religious exemption.
Once it chooses to, however, the State cannot favor certain types of religious beliefs, or inhibit the exercise of certain types of religious beliefs, in its exemption scheme.
II. Hobby Lobby and the Growing Body of Religious Exemption Law
This Part will first discuss the factual background and the Court’s opinion in Burwell v. Hobby Lobby Stores, Inc.,
focusing in particular on the Court’s discussion of the petitioners’ asserted substantial burden and of the potential negative effects on petitioners’ employees (i.e., third-party harms). This Part will then address the rising number of complicity-based claims for religious exemptions, especially following Hobby Lobby. It will proceed to discuss defenses of a broad role for religious exemptions, as well as two major criticisms of complicity-based claims and of the Hobby Lobby holding. Firstly, critics argue that the Hobby Lobby Court applied a reduced version of RFRA’s “substantial burden” standard, and secondly, they argue the Court signaled that third-party harms could play a smaller role in analyses of religious exemption claims.
A. Hobby Lobby: Background Discussion
In Hobby Lobby, closely held for-profit corporations claimed that since their sincerely held religious beliefs prohibited the use of contraceptives, they were entitled under RFRA to exemptions from portions of the Affordable Care Act (ACA),
which would require employee health insurance plans to include contraceptive coverage.
The Supreme Court assumed without deciding that the provision of this coverage constituted a compelling governmental interest for RFRA’s purposes,
but the Court explained that the government had demonstrated it had other means to ensure the coverage.
Therefore, the Court held that mandating that Hobby Lobby provide contraceptive coverage was not the least restrictive means by which the government could further its interest.
Hobby Lobby generated significant disagreement for its holding that closely held for-profit corporations could assert religious liberty claims,
but this Part will focus on controversies developing from the nature of the claims themselves.
In advance of the Court’s decision in Hobby Lobby, some commentators had suggested that the application of RFRA to allow for-profit corporations to obtain religious exemptions from the ACA’s contraceptive mandate
would violate the First Amendment because the allowance of such exemptions would impose on employees the very type of third-party harms prohibited by the Court’s Establishment Clause
and Free Exercise Clause
The Hobby Lobby Court implicitly referenced third-party harms in its RFRA analysis: The Court concluded that the harm imposed on Hobby Lobby’s employees, should their employer be allowed an exemption from the ACA contraceptive mandate, would be “precisely zero.”
This proposition was certainly contested in amicus briefs,
and in subsequent scholarship,
but its assertion signaled that, at the very least, third-party harms do not completely fall out of the analysis when RFRA claims are involved.
The Court in Hobby Lobby made no explicit mention of the Establishment Clause.
However, in a footnote, the Court seemed to undercut the importance of the third-party harm analysis in religious exemption claims, though they had previously been central to Establishment Clause analysis.
The majority opinion in Hobby Lobby acknowledged the language from Cutter v. Wilkinson
requiring that courts “‘take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’”
However, the Hobby Lobby Court rejected what it characterized as the Department of Health and Human Service’s (HHS) contention that “a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties.”
This reading, the Court further reasoned, would enable the government to get around RFRA in any situation, regardless of the enormity of the burden on the regulated party or the availability of alternative means, simply by presenting a plausible argument that the disputed regulation conferred a benefit to third parties.
The Court in the same footnote recognized that, in the RFRA framework,
third-party harms “will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest.”
Moreover, Justice Kennedy’s concurrence may indicate that there were not currently five votes on the Court for the reasoning expressed in the footnote.
Nevertheless, the discussion of the extent to which third-party harms mattered, even though the Court had already posited that no third-party harms existed,
“appear[ed] to cast doubt on the third party harm doctrine.”
Following Hobby Lobby, it seemed that some lower courts understood a reduction in the importance of third-party harms
—relative to burden on religious exercise
—in their analyses of free exercise and RFRA claims. Hobby Lobby and the influx of claims for religious exemptions,
not only from the ACA contraceptive mandate
but also from antidiscrimination statutes aimed at protecting LGBT individuals,
illustrate the troubling absence of a consistent understanding of third-party harms in the context of religious exemption claims.
This issue remains live in light of the Supreme Court’s remand of Zubik v. Burwell, which was consolidated with a number of cases presenting the same issue: whether the submission of a notice of religious burden by religious nonprofits imposed a substantial burden on their religious exercise, in violation of RFRA.
The cases were remanded for the parties to “arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”
The Court provided no guidance as to how this approach should be determined, and it specifically declined to answer the pressing questions about “whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”
The substantial burden question, and the importance of third-party harms in answering it, thus remains very much an open one.
B. Complicity-Based Claims
Following Hobby Lobby, there have been a significant number of what have been termed “complicity-based” claims for religious exemptions.
This type of argument has been mobilized most prominently in further claims for exemptions from the ACA contraceptive requirement
and in claims for exemptions from antidiscrimination statutes designed to protect LGBT individuals.
In the former context, the argument is that the very accommodations that the government has provided create illegal burdens on religious exercise, as the administrative steps the objector must take
to obtain the accommodation make the objector complicit in the offensive activity.
Some analogous claims have also arisen in the antidiscrimination context, and objectors make a similar argument: To require them to abide by antidiscrimination statutes
makes them complicit in an activity that violates their religious beliefs.
This emergence of complicity-based claims, especially post-Hobby Lobby, has generated significant controversy.
Some voices have articulated broadly favorable views of an increased role for religious exemptions, especially in the ACA contraceptive requirement and antidiscrimination law arenas discussed above. Supporters’ arguments generally rest on two normative propositions.
First, those who envision a broader role for religious exemptions have pointed out that in a pluralistic society, as previously unrecognized rights gain new recognition, to grant religious exemptions allows individuals to opt out of the contentious social debate and can reduce social conflict. Professor Thomas Berg, for example, has argued in the same-sex marriage context that “recognizing same-sex marriage without significant religious exemptions will multiply the number of conflicts and create new legal exposure for objectors, either immediately or in the long term.”
Second, supporters argue that allowing a significant role for religious exemptions respects individual conscience, while requiring individuals whose religious beliefs conflict to abide by laws to which they object fundamentally devalues individual conscience.
Though some voices have favored the increased allowance of religious objections, others have raised concerns.
Two of the concerns, which will be discussed in more detail later, are, first, that the Court is hollowing out RFRA’s substantial burden standard—that is, making it easier to achieve
—and, second, that the Court in Hobby Lobby, and other courts subsequently, have reduced the analytical importance of third-party harms.
D. Criticism: Reducing Substantial Burden Standard
One critique of the Hobby Lobby decision is that the Court appeared to diminish the role of the substantial burden analysis in the RFRA framework (especially since decreased attention to the substantiality of the burden on the religious objector could translate to other types of religious exemption claims). Even before the decision, Professor Sepper raised qualms about the implications of recognizing the existence of a corporate conscience that could be substantially burdened:
Current decisions characterizing the regulation of employment benefits as a substantial and unjustified burden on religious freedom on employers would have potentially radical consequences for employment regulation. Acceptance of corporate conscience would invite challenges to health, safety, and nondiscrimination regulations in the workplace and beyond. It would put the institution in a legally superior position to the individual and undermine the religious pluralism that we value in commercial and public life.
But the Hobby Lobby decision affected the determination of substantial burden in another way: In the Hobby Lobby opinion, the “substantial burden” inquiry concluded that because the penalty for noncompliance with a law or regulation is high, the burden the law or regulation imposes is necessarily substantial: “If the owners . . . do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year . . . . If these consequences do not amount to a substantial burden, it is hard to see what would.”
It is possible to question whether this argument follows from the RFRA framework: Is the question under RFRA whether the act of abiding by the law imposes a substantial burden, or can it be whether the penalty for failing to abide by the law imposed a substantial burden?
Moreover, the Hobby Lobby outcome also seemed to signal that there should be very little inquiry into the religious substantiality of the burden when the plaintiff asserted that it existed,
whereas before Hobby Lobby, federal circuit courts did reject RFRA claims on the grounds that the burden imposed was not truly substantial.
Still, the Hobby Lobby burden reasoning has had an impact on the lower courts’ burden analyses.
E. Criticism: Failure to Account for Third-Party Harms
The second criticism of the growing body of religious exemption law is that it does not seem to account for third-party harms in any systematic way.
As discussed above, there is precedent in both Establishment Clause and Free Exercise Clause cases for the requirement that third-party harms be considered in analyzing claims for religious exemptions.
If one identifies an individual right to receive equal treatment with respect to health benefits, to allow religious exemptions to the ACA requirement could represent an impermissible infringement. When, as the Supreme Court found in Hobby Lobby, an accommodation could easily be made for the objector with arguably minimal effects on third parties,
this argument is less weighty; but in complicity-based cases, in which even the accommodation is contended to be inadequate,
it is unclear how third-party harm could be alleviated if the exemption were granted.
In the public accommodations context, the argument is often made that when a replacement for the service the religious objector is unwilling to provide is readily available, the third-party harm is not significant.
An inquiry into the obtainability of replacement services could provide a limit on the availability of religious exemptions—but some scholars have raised objections to this type of proposed limitation, since they take the existing distribution of regulatory burdens and benefits as a baseline and consequently conclude that the costs objectors impose on other individuals and the public are minimal.
There is also an argument that a dignitary harm to third parties must also be weighed in the analysis when the allowance of a religious exemption would implicitly validate the objectors’ moral condemnation of third parties’ legal behavior.
To sum up, there are two ways by which the growing body of religious exemption law seems to suggest a reduction in the analysis of the substantiality of the burden imposed on the objector. First, Hobby Lobby itself suggests that the penalty for noncompliance is central to the burden analysis, which expands the types of burdens that could be considered substantial, especially in combination with Hobby Lobby’s indication that there need be little probing of the sincerity of an asserted burdened religious belief.
Secondly, the allowance of complicity-based claims, when the activity to which objectors take exception seems in many cases quite removed from the activity that violates their religious beliefs, also suggests a lower standard for substantial burden.
The puzzle, however, is how exactly the substantial burden analysis should be conducted and to what extent third-party harms should factor into the analysis.
III. Vaccination: A Puzzle and a Counterexample
This Part recovers the analysis of substantial burdens and third-party harms that courts have developed in the context of challenges to compulsory vaccination laws. It then argues that vaccination jurisprudence provides a useful model for rationalizing the substantial burden analysis and better incorporating consideration of third-party harms in the contemporary context of religious challenges to the ACA’s contraceptive mandate and to antidiscrimination statutes.
A. Substantial Burden in Vaccination Law
Government-imposed vaccination requirements have historically been regarded as significant burdens on individual freedom. Along with the military draft,
vaccination was viewed in the early-twentieth century as one of the two most significant intrusions on individual freedom.
In a way, it is easy to see why: Both vaccination and the draft involve an invasion of an individual’s bodily integrity. Both examples also involve the use of a person’s body to achieve a government purpose which is presented as a service of the common good, but which may not have a direct positive impact on the person involved. In the case of the draft, the governmental purpose is national security and defense; in the case of vaccination, it is the protection of public health and maintenance of herd immunity.
Historically, it was this bodily seizure in contravention of the individual’s wishes that many objectors to government vaccination programs found offensive.
Even today, though state vaccination programs are generally upheld,
they are upheld not on the premise that burdens imposed on individual religious belief, freedom of choice, or bodily control are insignificant.
Rather, courts express the view that countervailing values are more important in the context of vaccination.
Interestingly, as will be discussed below, the primary countervailing value is essentially a large-scale consideration of third-party harms, analogous to the third-party harms which are so hotly debated today in other contexts.
B. Third-Party Harms in Vaccination Law
It may seem obvious that the justification for government-mandated vaccination programs is the avoidance of third-party harms. The central rationale for vaccination, after all, is to maintain a portion of the population immune to a contagious disease such that it cannot develop into an epidemic (herd immunity).
Today, most people intuitively regard nationwide public health as more important than the individual rights infringements inherent in mandatory vaccination.
However, as discussed above, at one time this value balancing was hardly taken for granted—in fact, it was a highly contentious issue.
The debate has since evolved, however, and today two broad types of third-party harms almost always outweigh the relevant individual rights concerns.
1. Children as Third Parties. — Typically, religious objectors to vaccination requirements are adults, though such adults often object to requirements that they vaccinate their children (generally as a prerequisite to school attendance).
In upholding vaccination requirements, courts often discuss the interests of these children and of other children in the community.
Despite the tradition of allowing parents great freedom in bringing up their own children,
vaccination is one area in which courts often do not defer to parents’ preferences, even if they are strongly held or expressed in religious terms. Rather than deferring to parents’ preferences or expressed beliefs, courts often instead discuss how unvaccinated children are exposed to dangerous communicable diseases.
Courts have also made reference to the equal protection implications of broadly allowing parents to obtain religious exemptions to vaccination requirements on behalf of their children, in that such allowance increases the risks faced by children who cannot be vaccinated for medical reasons.
Both the children of the parents seeking religious exemptions and other children are technically third parties to a religious freedom claim asserted by a parent, yet these children’s interests are often central to courts’ decisions to uphold vaccination schemes and to limit the allowance of religious exemptions.
Though the current contentious areas in religious exemption law do not involve children, the importance of children as third parties in the vaccination context has meaning for religious exemption law generally.
First of all, courts have emphasized that children may not hold the same religious views as their parents—and are even less likely to hold the same religious views as parents of other children in the community.
In the context of complicity-based claims for religious exemptions, it is equally and probably even more frequently true that employees do not hold the same views as employers and that members of the public seeking accommodations without discrimination do not hold the same religious views as the owners of these accommodations.
Therefore the same logic from the vaccine context—in which there is a strong resistance to exemptions that require the imposition of one person’s religious beliefs on another person who does not share them—can apply in these two controversial contexts.
2. General Public as Third Parties. — The second way courts consider third-party harms in the vaccination context is through the invocation of public health concerns.
Public health interests can be viewed as an aggregation of concerns about harms to third parties, and courts often raise these concerns in articulating why a state’s vaccination program is a constitutional exercise of its police power and no exemption scheme is required.
The public health concerns at issue in vaccination are, on a broad scale, arguably much more concrete than the effects on the public at large that would ensue from the granting of one complicity-based religious exemption to the ACA contraceptive-coverage mandate
or from antidiscrimination law.
That is, general unavailability of contraceptive coverage or of public accommodation for groups targeted by discrimination would not ensue if one or even numerous exemptions were granted. On the other hand, a public health crisis would not result from the granting of one or even numerous exemptions to vaccination requirements—yet the courts have held that states are not required to provide any religious exemption. Analogizing from vaccination, it makes sense to limit the role of religious exemptions in the two contentious contexts in light of the broad-lens government interests at stake, even when the effects of an individual exemption would be small.
C. Historical Perspective
It may seem that the substantial burden and third-party harms analyses, as applied regarding exemptions to vaccination requirements, are readily transferrable to religious exemptions in the reproductive rights and public accommodations contexts. However, it must be acknowledged that these latter two areas are simply much more controversial now
—from a legal perspective, at least
—than vaccination is. It is possible that the allowance of these two types of exemptions will decline naturally as the government interests in these policies become more widely accepted. Indeed, this was the story with vaccination, which, as discussed, was once much more legally controversial a topic than it is today.
The doctrinal history of religious exemptions from compulsory vaccination laws sheds light on the current controversy surrounding religious exemptions from the ACA’s contraceptive mandate and from antidiscrimination statutes. Compulsory vaccination programs have almost always been upheld, and there is a century-old tradition supporting their constitutionality even in the absence of religious exemption provisions. While compulsory vaccination requirements impose obviously substantial burdens on religious objectors, courts have traditionally engaged in a careful consideration of the third-party harms that would attend religious exemptions from such requirements. In other areas of religious exemption law, where a systematic method for considering such harms is noticeably and controversially undeveloped, the history of vaccination provides much-needed guidance.