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Why file frivolous religious rights cases against COVID protections?

It's not about the law.

In this June 7, 2021, file photo, demonstrators at Houston Methodist Baytown Hospital in Baytown, Texas, wave at cars that honk at them to support their protest against a policy that says hospital employees must get vaccinated against COVID-19 or lose their jobs. A federal judge dismissed their lawsuit, saying if workers don’t like the rule, they can go find another job. (Yi-Chin Lee/Houston Chronicle via AP)

(RNS) — Last Monday, a federal appeals court supported the right of Indiana University to require students to get vaccinated. It wasn’t a close call.

Writing for a three-member panel of the Seventh Circuit Court of Appeals, Judge Frank Easterbrook pointed out that a wide range of conditions govern enrollment at state institutions of higher education. For starters, you’ve got to pay tuition. And just because the First Amendment guarantees the state cannot tell you what to read or write, you don’t get to refuse to read an assigned book because you think it’s heretical.

“If conditions of higher education may include surrendering property and following instructions about what to read and write,” wrote Easterbrook, “it is hard to see a greater problem with medical conditions that help all students remain safe when learning.”

The appeals court ruling upheld a federal district judge’s July 18 denial of injunctive relief to eight students contesting the university’s vaccination mandate. Judge Damon R. Leichty (a Trump appointee, by the way) made it clear that longstanding legal precedent recognizes the authority of governments to protect public health, up to and including mandating vaccination of the citizenry.

But, you ask, what if the student plaintiffs object to being vaccinated on religious grounds? Well, as it happens, six of them did so object — and under the university’s policy of granting religious exemptions, they were exempted. 

But that wasn’t good enough. The students also objected to the university’s requirement that those exempted wear masks and be tested for COVID frequently. According to one of them, this would “make her a target for discrimination, bullying, and unwanted attention” in violation of her religious rights.

Sorry, said the judge. Per the free exercise standard laid down in the Supreme Court’s Smith decision, the university rule was, he held, “neutral” and “generally applicable,” thereby rendering the masking and testing requirement licit as well as making the religious exemption a government “grace” rather than a constitutional obligation.

After the appeals court ruling, James Bopp Jr., the students’ lawyer, announced he’d be filing an appeal with the Supreme Court. But I expect he’s told them not to hold their breath for a favorable outcome.

Suppose the court replaced the Smith standard with “strict scrutiny,” the highest standard of review, which requires the government to prove a “compelling interest” in order to countermand a constitutional right like free exercise. Does anyone doubt protecting public health is a compelling government interest?

Nevertheless, the advancing of frivolous religious claims serves a purpose — namely, to keep the culture war going at a fever pitch. Nor can it be doubted that’s what Bopp has in mind. A leading social conservative on the Republican National Committee, he has opposed same-sex marriage and LGBTQ rights in court and most recently filed lawsuits challenging the 2020 election results in four swing states won by Joe Biden.

Just the other day, the Republican attorney general of Louisiana, Jeff Landry, emailed his employees a form letter suggesting various religious grounds for objecting to the state’s new mask mandate, including that it “interfere(s) with religious commands to share God’s love with others.” In other words, it’s an attack on the Great Commission.

Landry also filed a lawsuit against a private medical college for allegedly denying three students’ requests for a religious exemption to the college’s vaccination mandate. In a statement rebutting the allegation, the college’s provost wrote, “It is simply time for the vaccine to no longer be used as a political issue but to be one recognized as a measure needed for public health and safety.”

Don’t hold your breath for that, either.

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