Last week President Joe Biden announced a new rule through the Occupational Safety and Health Administration that will require companies with more than 100 employees to mandate their workers be fully vaccinated for COVID-19 or undergo weekly testing. The rule, which comes through an emergency temporary standard, will also allow for some exceptions, including religious objections.
Here in Illinois Gov. JB Pritzker and Mayor Lori Lightfoot have also issued COVID-19 vaccine mandates for health care workers and many state and city employees. These mandates also allow for religious exemptions.
One Curious Citizen who has been following the rollout of these pandemic related mandates wrote to express her confusion about these religious exemptions, given that many religious and faith leaders, from the Pope to Imams, have advocated for Americans to get the COVID-19 vaccine.
She also wanted to know more about the history behind the religious exemptions — what sorts of legal challenges these exemptions have faced and whether or not there’s been any push to eliminate them.
While resistance to vaccine mandates goes back 200 years, religious objections were not recognized by the law until the 1960s. Since then, the use of these exemptions has proliferated across the U.S., including here in Illinois. More recently some states, including Illinois, have proposed or passed legislation to limit the use of religious exemptions. And some public health advocates say it’s simply become a loophole and a relatively easy way for people to opt out of vaccine mandates.
What is a religious exemption?
Religious exemptions for school vaccination requirements or workplace mandates are not guaranteed by a single federal law. The rules around these exemptions differ from state to state and between public and private institutions.
These exemptions are supposed to be based on an individual’s “sincerely held beliefs” that for a religious reason, they cannot get vaccinated. Of course, knowing whether someone is being sincere in their religious belief is practically impossible. Additionally, the requirements and review process for receiving exemptions varies from state to state and between employers. In Chicago, for example, Chicago Public Schools teachers are required to provide additional documentation when they submit a request for a religious exemption to the COVID-19 vaccine mandate.
“This may include uploading a letter from an authorized representative of the church, temple, or religious institution, as well as literature from the church, temple, or religious institution explaining doctrine/beliefs that prohibit COVID-19 immunization, ” the CPS Office of Communications said in a written statement to Curious City.
But this is by no means standardized in Illinois. Other organizations and businesses may be more or less stringent in their requirements.
What do religious and faith leaders say about vaccines and religious exemptions?
“If you consult religious scholars from across faiths, you will find that clergy and scholars alike are saying pretty consistently there is nothing substantively in their religion that would prevent their adherents from getting a vaccine,” said Eboo Patel, founder of Interfaith Youth Core, which has been researching vaccine hesitancy in religious communities.
Some orthodox Jewish rabbis made a PSA encouraging Americans to get the COVID-19 vaccine. The Pope also made a video telling Catholics that getting the vaccine would be “an act of love.” And the Archdiocese of Chicago instructed priests not to grant religious exemptions to their parishioners because they “go against church teachings.”
And while some Catholic and Evangelical leaders raised objections to the Johnson and Johnson vaccine because of how it was developed, they did not oppose vaccination overall on religious grounds.
Even religious groups who in the past have sometimes been associated with immunization resistance, like Christian Scientists, have either supported individuals getting vaccinated or at the very least advocated compliance with laws and recommendations from public health officials, said University of Virginia law professor Douglas Laycock, an expert on religious liberty.
What’s the history behind the religious exemption?
In the early 19th century, states began to institute the first vaccine mandates to stop the spread of smallpox, eventually culminating in the first compulsory vaccination law. Much like today, there was public resistance to these laws, with one case, Jacobson v. Massachusetts, going all the way to the Supreme Court in 1905. But these early objections to vaccine mandates, including in the Jacobson case, were not based on religious grounds. Instead, objectors tended to argue that these mandates were an infringement of their 14th Amendment rights, because it forced an undue medical procedure on individuals. In the case of Jacobson, The Supreme Court upheld the state’s right to institute the mandates.
Even the first belief exemptions in the U.S. in the early 20th century were not explicitly religious. Instead they were inspired by the “contentious clause” passed in the United Kingdom decades earlier that allowed for philosophical objection to vaccination. However, it was around this time period that groups lobbying for a religious exemption emerged.
“It was really the lobbying of the Christian Scientists starting in the 1910s that you start to see people making an organized claim for religious exemption,” said public health historian James Colgrove, who has written several books about vaccines including State of Immunity: The Politics of Vaccination in Twentieth-Century America. But this lobbying wouldn’t lead to any major policy shift until the 1960s, Colgrove said.
During that time, the U.S was experiencing outbreaks of polio and measles even though vaccines for these diseases existed. Public health officials were mostly relying on education and persuasion to convince parents to get their children vaccinated. Despite cases plummeting for periods of time, states were still seeing outbreaks. In 1966, New York assemblyman Alexander Chananau proposed creating a law requiring children to get vaccinated to attend school. Chananau’s law was met with outcry from the Christian Science community.
To appease these vocal dissenters, an exemption based on religious belief was added to the bill. While a handful of religious exemption laws had already been enacted, the passage of this New York law marked a turning point. It became a blueprint for vaccine legislation over the second half of the 20th century. Forty-eight other states, including Illinois, adopted similar philosophical and/or religious belief exemptions for which parents could apply, as more and more states began requiring that children be vaccinated to attend school.
Around this same time period, the Civil Rights Act was passed in 1964, which prevented employers from discriminating based on things like race, gender, and religion.
“And that has been interpreted to mean that if an employee has a sincere religious objection to a workplace rule [including vaccine mandates], the employer has to accommodate them unless it’s an undue burden,” said Dorit Reiss, professor of law at UC Hastings College of Law.
This combination of school vaccination mandates and broad religious liberty protections would form the basis of modern vaccine policy in America, even for the workplace. By 1980, all 50 states had vaccination laws for children entering school, with West Virginia and MIssissippi being the only states to not allow for religious exemption. Together, these laws would shape the next 40 years of vaccine mandate policy.
Why do these religious exemptions persist?
One of the reasons religious exemptions have remained ubiquitous is because legislators and employers are typically uncomfortable interrogating the sincerity of someone’s religious belief.
“It’s very difficult to investigate sincerity. How do you decide what someone really believes in their heart of hearts about religion?” said University of Virginia law professor Douglas Laycock.
As Laycock explains, there is a perception that if you interrogate too vigorously you could risk a lawsuit. “It’s partly that they overestimate the legal risk. And there are six very conservative judges on the Supreme Court who could change the rules. I don’t think it’s very likely, but it’s possible,” Laycock said.
Another reason states have kept these exemptions is something called a safety valve. A safety valve in this context refers to the idea that sometimes with policymaking it can actually be beneficial to create some leeway, say through an exemption, in a mandate or law, said public health historian Colgrove.
“An exemption is a way to let off pressure in a system. We know that we have some small number of our community who really hate vaccination and don’t want to do it. And if you don’t allow for some mechanism for those people to get out of the law, they’re going to create a lot of trouble.” Colgrove said.
Rather than risk legislators repealing a vaccine mandate entirely due to pressure from people opposed to vaccines, policy makers include an exemption.
Pushback takes hold against religious exemptions to vaccines
But here’s the problem: what do you do when that small minority starts to grow? Since the 1990s, there’s been a growing movement of people hostile to vaccines — initially galvanized by a paper published by former physician Andrew Wakefield, who erroneously linked the MMR vaccine to children developing Autism. The paper was debunked and the medical journal that published the study, The Lancet, eventually retracted the article, but not before inspiring what has now become a vocal vaccine opposition movement.
In 2015, the MMR vaccine made headlines when there was an outbreak of measles in children in California. It was thought that growing numbers of parents were exploiting the religious exemption clause and acquiring letters of affirmation from church leaders or so-called pop-up churches willing to help parents skirt vaccine requirements. California eventually passed legislation removing religious exemption from its school codes. Since then, three other states have passed similar legislation, totaling six states that have removed religious exemptions to vaccines for children entering school.
In 2020, former state Sen. Heather Steans proposed similar legislation in Illinois.
“There was growing concern that the number of unvaccinated kids was growing in Illinois. And we had a number of school districts that had high vaccination rates and did not have herd immunity.” said Steans, “and the real reason was the number of religious exemptions.”
Between the 2014-2015 and 2018-2019 school years, Illinois saw an increase of over 4,000 students receiving religious exemptions for the MMR vaccine, totaling around 19,000 out of about 2 million students. Concerned by what appeared to be a growing trend and not wanting to replicate outbreaks like those in California and New York, Steans said she sought to remove religious exemption from the school code entirely.
But the Illinois legislature did not take a vote on the bill and Steans has since left office.
Should we get rid of the religious exemptions?
While there’s been a small trend in recent years of states passing or proposing legislation to remove religious exemptions in an attempt to push back against growing anti-vaccine movements, it’s unclear if this will continue.
Yale University public health researcher and physician Dr. Saad Omer thinks that stringent mandates that don’t include religious exemptions aren’t necessarily effective at increasing vaccination rates.
Dr. Omer and a team of other researchers looked at the data before and after California removed its religious exemptions. What they found was that vaccine noncompliance pretty much stayed the same. It turned out that the group of people who would have exploited the religious exemption simply found other loopholes.
“What happened was there was a cottage industry of people giving medical exemptions that sprouted, but that was a small fraction. A bigger group just found other loopholes, like quasi-homeschooling,” said Dr. Omer. “And so if you look at that trajectory, in two to three years there was an exact replacement proportionally for all the people who were getting religious exemptions.”
“It’s very reasonable for a society to say, ‘Fine, if your convictions are so strong that you are willing to be that person that doesn’t protect themselves or others, at least understand the consequences of that.’ At least make half the effort that I make to schedule an appointment, to take time off work. Go to a counseling session and have to file for an exemption,” said Dr. Omer.
Reiss thinks we could even get rid of religion entirely but still leave room for an exemption, one requiring multiple steps in order to obtain it.
“So if you’re interested in having an exemption … you don’t have to make it rely on religion. You can say, ‘Here’s a personal choice exemption,’ but to get it you have to jump through these hoops,“ she said.
Such hoops, she said, could be something like completing a multi-day course and requiring certification that you’ve understood the information, along with having to file thorough paperwork to justify the claim.
Reiss also believes anyone who gets a religious exemption to the COVID-19 vaccine should also be required to undergo regular testing and wear a mask, which is how Chicago will be proceeding with CPS teachers and other city workers.
As the pandemic continues, it is clear that mandate policies are something legislators and human resource departments will have to confront.
“What differentiates effective mandates versus non-effective mandates is how easy it is to opt out in terms of procedures. If you make it too easy then a ton of people opt out and mandate isn’t effective. But if you make it too hard, if you shut down the pressure valve, the backlash is so much. So the most effective mandates are those that don’t make it impossible for those to truly believe. But it’s not an easy choice,” Dr. Omer said.
Andrew Meriwether is a journalist living in Chicago. Follow him at @ohsomeriwether