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Let’s treat religious liberty like conscientious objection

Here's a modest proposal for improving current free-exercise jurisprudence.

A Civilian Public Service firefighting crew at Snowline Camp near Camino, California, 1945. CPS was a program of the United States government that provided conscientious objectors with an alternative to military service during World War II. Photo from the private collection of Leo Harder/Wikipedia/Creative Commons

(RNS) — When last we met, the subject was Supreme Court Justice Neil Gorsuch’s religious liberty maximalism and how it fell short when the court refused to block New York state’s COVID-19 vaccination mandate for health care workers. The conclusion, nevertheless, was that we need a better way to handle free-exercise claims for exemptions from vaccinations and other government mandates.

Herewith a modest proposal: Let’s treat religious liberty claimants along the lines employed by the military to deal with conscientious objectors. 

Recognized by American governments in one form or another since the founding of the republic, conscientious objection has never been seen as exempting a draftee from contributing to the national war effort, whether that meant finding a substitute (Civil War), serving in a noncombatant role (World War I) or performing civilian service (World War II and beyond).

During the Revolutionary War, Pennsylvania, with its pacifist Quaker elite, jailed Quakers who refused to pay a tax imposed in lieu of serving in the state militia. (Likewise, in modern times, pacifists may not refuse to pay a portion of their income taxes that would go to fund a war.)

RELATED: On New York vaccine mandate, Gorsuch’s religious liberty maximalism comes up short

Under our existing conscientious objection standard, an American wouldn’t be able to claim what the Catholics call “remote cooperation with evil” as a legitimate basis for a free-exercise claim against a government mandate.

The courts would also not recognize an employer’s religious objection to asking the government for a waiver from Obamacare’s contraceptive coverage mandate on the grounds that this would lead to the government providing the coverage itself, any more than pacifists could withhold tax money.

Nor would they recognize a person’s religious objection to receiving a COVID-19 vaccine developed or tested with cells descended from aborted fetal cells obtained half a century ago. 

But if the grounds for seeking objector status were sufficiently immediate — if the Catholic church were being required to cover contraception directly for its employees — the question turns to the character of the objector’s belief. The current judicial standard is that it be “sincerely held” — a standard that usually means nothing more than taking individuals at their word.

By contrast, under the Military Selective Service Act, the armed forces set a higher sincerity bar, albeit one not limited to religion.

Beliefs which qualify a registrant for CO status may be religious in nature, but don’t have to be. Beliefs may be moral or ethical; however, a man’s reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest. In general, the man’s lifestyle prior to making his claim must reflect his current claims. Under the circumstances, the government is fully entitled to make a determination that the request for exemption is not based on politics, expediency or self-interest, and to make sure the person’s lifestyle reflects their current claims.

The Army’s regulations for gaining CO status, for example, specify a careful and extensive process of scrutiny. This would weed out COVID-19 vaccine-objecting health workers who never go to church, who wear a MAGA hat to work and who have no problem with the rubella vaccine (also developed with a remote abortion-derived cell line). The presumption would be that their objection is more political or expedient, and they would be denied an exemption.

It would also put conscientious objectors under an obligation to prove by “clear and convincing evidence” that they are entitled to CO status. The strict scrutiny standard required by the Religious Freedom Restoration Act, by contrast, says that the government can only prevail against a free-exercise claim by proving a compelling interest for the government and by demonstrating that it is furthering that interest by the “least restrictive means.” 

Finally, what if the objector has a sufficiently immediate religious claim and proves with clear and convincing evidence a sincere belief in it but the factual basis of the claim is demonstrably untrue? 

Suppose, let’s say, that an anti-vax influencer has put out a false story that drug manufacturers are paying women to have abortions in order to obtain cells to manufacture COVID-19 vaccines. What would happen to a free-exercise claim made by someone who sincerely believes the story?

It would fail.