Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[Hillel Y. Levin]

I'm fairly certain that the current court would uphold the current uga
policy without extending it to secular excuses. I'm just not sure that we
can come up with a justification for it that makes any sense as a policy
matter.

On Sunday, June 8, 2014, Volokh, Eugene  wrote:

>I’m not positive what the right answer is (though I don’t
> agree with the Free Exercise Clause cases holding that, if the government
> provides secular exceptions, it must also provide religious exceptions).
> I’m just curious about what other people think should happen in situations
> such as the ones involved in the New Jersey case.
>
>
>
> As I understand it, Cutter v. Wilkinson concludes that exemptions limited
> to religious believers are generally constitutionally permissible, so the
> UGA policy you describe is sound even in the absence of comparable secular
> exemptions.  The New Jersey decision, on the other hand, seems to point in
> the opposite direction, albeit in an unusual procedural posture.  Which is
> right?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu
> 
> [mailto:religionlaw-boun...@lists.ucla.edu
> ] *On
> Behalf Of *Hillel Y. Levin
> *Sent:* Sunday, June 08, 2014 3:12 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: FW: Religious Exemption From Vaccination Policy Requires
> Acceptance of Secular Reasons As Well
>
>
>
> Eugene:
>
>
>
> Are you asking whether religion is a one way ratchet? Under at least one
> reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are
> (at least some kinds of) secular exceptions, then there must also be a
> religious exception. But if there is a religious exception, must there also
> be secular exceptions? And if so, what kinds of secular exceptions must
> there be--those that rise to the level of conscientious objection status,
> or others as well?
>
>
>
> For what it is worth, I get an email from UGA each year reminding me that
> it is university policy to accommodate (to the maximum degree possible,
> whatever that means) religious students' ability to miss class for
> religious observances. I do not get such an email regarding students who
> miss class because their siblings are getting married, their pets are in
> poor health, or their great aunts (who were like second mothers) died. What
> to make of that?
>
> On Saturday, June 7, 2014, Levinson, Sanford V 
> wrote:
>
> I would always want to know the rationale and why it didn't apply to the
> religious person as well. But if ever I'm disinclined to be sympathetic to
> the flat out equal treatment, it's in this instance, and I continue to
> wonder why there's a religious exemption. I presume that a religious person
> wouldn't be allowed to smoke on premises even if she belonged to a
> religious sect that commanded chain smoking. I see no difference with
> regard to the flu shot. But, by stipulation, if the rule had nothing to do
> with patients' health, then I'd be inclined to treat secular and religious
> alike.
>
>
>
> Sandy
>
>
>
> Sandy
>
>
> Sent from my iPhone
>
>
> On Jun 7, 2014, at 9:02 PM, "Volokh, Eugene"  wrote:
>
>I agree entirely on the bottom line, but let me ask what
> would happen in the absence of concerns about harm to the sick.  Say an
> employer has a uniform policy that bars headgear, but exempts religious
> objectors; and say that a secular employee insists on wearing a hat to
> work, and is fired for it.  Should the employee be seen as constitutionally
> entitled to unemployment compensation, on a rationale similar to that given
> by the New Jersey appellate court?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson,
> Sanford V
> *Sent:* Friday, June 06, 2014 9:00 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Religious Exemption From Vaccination Policy Requires
> Acceptance of Secular Reasons As Well
>
>
>
> OK, I’ll bite;  Religious exemptions, at the end of the day,  honor
> beliefs that secularists by definition must regard as “irrational,” i.e.,
> incapable of being defended by reference to “standard-model” scientific
> argument.  There may be good reasons for allowing such exemption in the
> name of preserving civil peace, etc., or it
>
>

-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_i

RE: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[Volokh, Eugene]

   I’m not positive what the right answer is (though I don’t agree 
with the Free Exercise Clause cases holding that, if the government provides 
secular exceptions, it must also provide religious exceptions).  I’m just 
curious about what other people think should happen in situations such as the 
ones involved in the New Jersey case.

As I understand it, Cutter v. Wilkinson concludes that exemptions limited to 
religious believers are generally constitutionally permissible, so the UGA 
policy you describe is sound even in the absence of comparable secular 
exemptions.  The New Jersey decision, on the other hand, seems to point in the 
opposite direction, albeit in an unusual procedural posture.  Which is right?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Sunday, June 08, 2014 3:12 AM
To: Law & Religion issues for Law Academics
Subject: Re: FW: Religious Exemption From Vaccination Policy Requires 
Acceptance of Secular Reasons As Well

Eugene:

Are you asking whether religion is a one way ratchet? Under at least one 
reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are (at 
least some kinds of) secular exceptions, then there must also be a religious 
exception. But if there is a religious exception, must there also be secular 
exceptions? And if so, what kinds of secular exceptions must there be--those 
that rise to the level of conscientious objection status, or others as well?

For what it is worth, I get an email from UGA each year reminding me that it is 
university policy to accommodate (to the maximum degree possible, whatever that 
means) religious students' ability to miss class for religious observances. I 
do not get such an email regarding students who miss class because their 
siblings are getting married, their pets are in poor health, or their great 
aunts (who were like second mothers) died. What to make of that?

On Saturday, June 7, 2014, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:
I would always want to know the rationale and why it didn't apply to the 
religious person as well. But if ever I'm disinclined to be sympathetic to the 
flat out equal treatment, it's in this instance, and I continue to wonder why 
there's a religious exemption. I presume that a religious person wouldn't be 
allowed to smoke on premises even if she belonged to a religious sect that 
commanded chain smoking. I see no difference with regard to the flu shot. But, 
by stipulation, if the rule had nothing to do with patients' health, then I'd 
be inclined to treat secular and religious alike.

Sandy

Sandy

Sent from my iPhone

On Jun 7, 2014, at 9:02 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

   I agree entirely on the bottom line, but let me ask what would 
happen in the absence of concerns about harm to the sick.  Say an employer has 
a uniform policy that bars headgear, but exempts religious objectors; and say 
that a secular employee insists on wearing a hat to work, and is fired for it.  
Should the employee be seen as constitutionally entitled to unemployment 
compensation, on a rationale similar to that given by the New Jersey appellate 
court?



   Eugene



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, June 06, 2014 9:00 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Exemption From Vaccination Policy Requires Acceptance of 
Secular Reasons As Well



OK, I’ll bite;  Religious exemptions, at the end of the day,  honor beliefs 
that secularists by definition must regard as “irrational,” i.e., incapable of 
being defended by reference to “standard-model” scientific argument.  There may 
be good reasons for allowing such exemption in the name of preserving civil 
peace, etc., or it may simply boil down to the presence of the Free Exercise 
Clause and the collapse  of  the belief/conduct distinction.  But it is hard to 
think of “secular” reasons for a nurse to refuse to get a flu vaccination, 
given the risk not only to herself—which raises obvious questions about 
paternalism—but also potential risks to her patients should she in fact come 
down with the flu and infect others in the hospital, who are by definition more 
vulnerable than ordinary persons with whom she might also come into contact.  
So, unless there really is some good reason to refuse flu vaccines—perhaps she 
is unusually sensitive to egg-based vaccines or something similar—I am 
disinclined to be at all sympathetic to her argument and would regard her 
firing as fully for cause.  I think the “freedom of expression” argument in 
this case is wacky given her job and responsibility for doing no harm to the 
sick.  Were I to

Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[Hillel Y. Levin]

Eugene:

Are you asking whether religion is a one way ratchet? Under at least one
reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are
(at least some kinds of) secular exceptions, then there must also be a
religious exception. But if there is a religious exception, must there also
be secular exceptions? And if so, what kinds of secular exceptions must
there be--those that rise to the level of conscientious objection status,
or others as well?

For what it is worth, I get an email from UGA each year reminding me that
it is university policy to accommodate (to the maximum degree possible,
whatever that means) religious students' ability to miss class for
religious observances. I do not get such an email regarding students who
miss class because their siblings are getting married, their pets are in
poor health, or their great aunts (who were like second mothers) died. What
to make of that?

On Saturday, June 7, 2014, Levinson, Sanford V 
wrote:

>  I would always want to know the rationale and why it didn't apply to the
> religious person as well. But if ever I'm disinclined to be sympathetic to
> the flat out equal treatment, it's in this instance, and I continue to
> wonder why there's a religious exemption. I presume that a religious person
> wouldn't be allowed to smoke on premises even if she belonged to a
> religious sect that commanded chain smoking. I see no difference with
> regard to the flu shot. But, by stipulation, if the rule had nothing to do
> with patients' health, then I'd be inclined to treat secular and religious
> alike.
>
>  Sandy
>
>  Sandy
>
> Sent from my iPhone
>
> On Jun 7, 2014, at 9:02 PM, "Volokh, Eugene"  wrote:
>
>  I agree entirely on the bottom line, but let me ask what
> would happen in the absence of concerns about harm to the sick.  Say an
> employer has a uniform policy that bars headgear, but exempts religious
> objectors; and say that a secular employee insists on wearing a hat to
> work, and is fired for it.  Should the employee be seen as constitutionally
> entitled to unemployment compensation, on a rationale similar to that given
> by the New Jersey appellate court?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson,
> Sanford V
> *Sent:* Friday, June 06, 2014 9:00 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Religious Exemption From Vaccination Policy Requires
> Acceptance of Secular Reasons As Well
>
>
>
> OK, I’ll bite;  Religious exemptions, at the end of the day,  honor
> beliefs that secularists by definition must regard as “irrational,” i.e.,
> incapable of being defended by reference to “standard-model” scientific
> argument.  There may be good reasons for allowing such exemption in the
> name of preserving civil peace, etc., or it may simply boil down to the
> presence of the Free Exercise Clause and the collapse  of  the
> belief/conduct distinction.  But it is hard to think of “secular” reasons
> for a nurse to refuse to get a flu vaccination, given the risk not only to
> herself—which raises obvious questions about paternalism—but also potential
> risks to her patients should she in fact come down with the flu and infect
> others in the hospital, who are by definition more vulnerable than ordinary
> persons with whom she might also come into contact.  So, unless there
> really is some good reason to refuse flu vaccines—perhaps she is unusually
> sensitive to egg-based vaccines or something similar—I am disinclined to be
> at all sympathetic to her argument and would regard her firing as fully for
> cause.  I think the “freedom of expression” argument in this case is wacky
> given her job and responsibility for doing no harm to the sick.  Were I to
> receive this as an answer to a final exam question, I would be inclined to
> give it a very bad grade.  I leave it to my colleagues on this list,
> including Eugene, to tell me if (and why) I am off-base in my response.
>
>
>
> sandy
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene
> *Sent:* Friday, June 06, 2014 10:50 PM
> *To:* Law & Religion issues for Law Academics (
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> 
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
>

-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev

Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[mallamud]

Marty's comment below suggests that Employment Division v. Smith sets 
the right standard.  Consider this paragraph of Marty;s:


"Assume that a state actor, such as a legislature or a state employer, 
granted a religious-only exemption to a vaccination requirement.  This 
actually happens quite frequently under state laws.  In my view this is 
an Establishment Clause violation, because of the harm to third parties. 
The interesting question is who can sue to complain about it.  A member 
of the public or a student at school who may be exposed to unimmunized 
religious objectors?  (Probably standing problems, at least in federal 
court.)  What about a secular objector who complains that the state 
cannot discriminate against her non-religious reasons for wanting the 
exemption -- a Texas Monthly-like case, in other words, but without the 
Free Speech/Free Press overlay?  The irony in such a case is that 
extending the exemption to secular objectors eliminates the 
Establishment Clause problem -- that's why some legislatures have done 
it! -- while at the same time further further undermining the underlying 
health reason for the vaccination requirement.  Should the secular 
objector be able to prevail in that case, relying principally on the 
harm to third parties that makes the religious exemption 
unconstitutional . . . even though that harm that will be exacerbated if 
the exemption if the plaintiff wins and the exemption is extended beyond 
religion?"


One should be free to practice one's religion as long as that practice 
does not have a reasonable negative impact on others.  Preventing people 
from being a nurse for failure to meet the job requirements does not 
prevent them from practicing their religion.  Just as the first 
amendment reflects a value of free speech that many of us would like 
private folks to follow, so the legal implementation of the freedom of 
religion clauses sets a value that people in their private capacity 
should follow.  Freedom of religion should not authorize people to 
impact my freedom, health or safety in a substantial way.  If a 
vaccination is determined to be necessary as a substantial requirement 
for employment, then all employees should be vaccinated or, at least, 
those employees whose vaccinations fall within the reason for the 
requirement and I do not see how religious views should afford an 
exemption. If the requirement only concerns the safety of the individual 
employee, that is a different case.


   
Jon


On 2014-06-07 07:37, Marty Lederman wrote:

Well, the opinion is a complete mess, and might not best be read as a
constitutional decision at all.  It does, however, suggest a lurking
interesting question about religious accommodations and vaccinations,
albeit one not raised by this case.

This is an unemployment compensation case involving a private
employer.  For the most part, the opinion appears to be a
straightforward APA-like arbitrary and capricious decision, not
implicating any constitutional decision.  The rationale is that the
religious accommodation undermined the employers stated health
objective for imposing the vaccination requirement, and therefore
there was no good reason for insisting upon the vaccination (and thus
no legal grounds for firing the plaintiff, thereby entitling her to
unemployment compensation).  The opinion ends with this holding: 

The record is uncontroverted that the employer did not produce
evidence showing appellants refusal to comply with its flu 
vaccination

policy for purely secular reasons adversely impacted the hospital or
otherwise undermined appellants ability to perform her job as a 
nurse.


Now, this is, of course, nuts.  I think it might be a function of the
fact that the employer did not appear in the case--only the state
board of unemployment compensation did.  But if, in the underlying
unemployment compensation proceedings, the hospital couldnt come up
with any evidence of adverse impact of the nurses refusal to be
immunized, it needs to hire better lawyers (or administrators).  To
be sure, the religious exemption _does _undermine the efficacy of the
vaccination requirement somewhat.  But presumably it doesnt blow it
to smithereens, or render it futile -- the patients are still _more
likely_ not to contract the flu if most (even if not all) employees
are vaccinated.

In the midst of all this misbegotten Ad Law stuff, however, the court
interjects two constitutional bits:  The first is an unadorned
sentence suggesting a free speech violation _by the unemployment
compensation board.  _(The hospital, recall, is a private
employer.)  The refusal of the board to give benefits to the secular
objector, writes the court, "unconstitutionally violated appellants
freedom of expression by endorsing the employers religion-based
exemption to its flu vaccination policy."  Theres no analysis here,
and this is, of course, even less coherent or justi

Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[Marty Lederman]

Well, the opinion is a complete mess, and might not best be read as a
constitutional decision at all.  It does, however, suggest a lurking
interesting question about religious accommodations and vaccinations,
albeit one not raised by this case.

This is an unemployment compensation case involving a private employer.
For the most part, the opinion appears to be a straightforward APA-like
arbitrary and capricious decision, not implicating any constitutional
decision.  The rationale is that the religious accommodation undermined the
employer's stated health objective for imposing the vaccination
requirement, and therefore there was no good reason for insisting upon the
vaccination (and thus no legal grounds for firing the plaintiff, thereby
entitling her to unemployment compensation).  The opinion ends with this
holding:

The record is uncontroverted that the employer did not produce evidence
showing appellant's refusal to comply with its flu vaccination policy for
purely secular reasons adversely impacted the hospital or otherwise
undermined appellant's ability to perform her job as a nurse.

Now, this is, of course, nuts.  I think it might be a function of the fact
that the employer did not appear in the case--only the state board of
unemployment compensation did.  But if, in the underlying unemployment
compensation proceedings, the hospital couldn't come up with any evidence
of adverse impact of the nurse's refusal to be immunized, it needs to hire
better lawyers (or administrators).  To be sure, the religious exemption *does
*undermine the efficacy of the vaccination requirement somewhat.  But
presumably it doesn't blow it to smithereens, or render it futile -- the
patients are still *more likely* not to contract the flu if most (even if
not all) employees are vaccinated.

In the midst of all this misbegotten Ad Law stuff, however, the court
interjects two constitutional bits:  The first is an unadorned sentence
suggesting a free speech violation *by the unemployment compensation
board.  *(The hospital, recall, is a private employer.)  The refusal of the
board to give benefits to the secular objector, writes the court,
"unconstitutionally
violated appellant's freedom of expression by endorsing the employer's
religion-based exemption to its flu vaccination policy."  There's no
analysis here, and this is, of course, even less coherent or justifiable
than the arbitrary and capricious holding.

Then there's the penultimate paragraph, just before the arbitrary and
capricious one quoted above.  It sounds in the Establishment Clause:

Our Supreme Court has clearly cautioned that "[g]overnment may not, under
the First Amendment, prefer one religion over another or religion over
non-religion but must remain neutral on both scores." Marsa v. Wernik, 86
N.J. 232, 245 (1981) (citing Sch. Dist. of Abington Twp. v. Schempp, 374
U.S. 203, 216, 83 S. Ct. 1560, 1568, 10 L. Ed. 2d 844, 855 (1963)). Under
these circumstances, by denying appellant's application to receive
unemployment benefits based only on her unwillingness to submit to the
employer's religion-based policy, the Board violated appellant's rights
under the First Amendment.
This, too, is a mess, for a host of reasons:  The hospital's vaccination
requirement is not "religion-based."  The Board did not prefer religion
over non-religion -- it would have also denied benefits to a religiously
motivated employee who was fired by an employer for not being immunized.
The only authority cited has nothing to do with this sort of case-- *Marsa*
was actually a *Town of Greece* precursor that allowed a borough council
member to make a pre-meeting invocation!  And *Schempp*, of course,
involved the state's own religious expression.  Etc.

So I'd suggest we ignore this decision itself--nothing good can come of it.

But here's the interesting lurking question:

Assume that a *state* actor, such as a legislature or a state employer,
granted a religious-only exemption to a vaccination requirement.  This
actually happens quite frequently under state laws.  In my view this is an
Establishment Clause violation, because of the harm to third parties.  The
interesting question is who can sue to complain about it.  A member of the
public or a student at school who may be exposed to unimmunized religious
objectors?  (Probably standing problems, at least in federal court.)  What
about a secular objector who complains that the state cannot discriminate
against her non-religious reasons for wanting the exemption -- a *Texas
Monthly*-like case, in other words, but without the Free Speech/Free Press
overlay?  The irony in such a case is that extending the exemption to
secular objectors eliminates the Establishment Clause problem -- that's why
some legislatures have done it! -- while at the same time further further
undermining the underlying health reason for the vaccination requirement.
Should the secular objector be able to prevail in that case, relying
principally on the harm to third pa

FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[Volokh, Eugene]

   Any thoughts on this New Jersey case?  (Note that the court’s 
rationale focused not on the Establishment Clause as such, but rather on the 
conclusion that “The Board's decision upholding appellant's termination 
unconstitutionally discriminated against appellant's freedom of expression by 
improperly endorsing the employer's religion-based exemption to the flu 
vaccination policy and rejecting the secular choice proffered by appellant.”)

   Eugene

Feed: Religion Clause
Posted on: Friday, June 06, 2014 4:05 AM
Author: Howard Friedman
Subject: Religious Exemption From Vaccination Policy Requires Acceptance of 
Secular Reasons As Well

In Valent v. Board of Review, Department of 
Labor, (NJ App., June 
5, 2014), the New Jersey Superior Court Appellate Division held that a nurse 
employed by a hospital was entitled to unemployment compensation after she was 
fired for refusing to obtain a flu vaccination as required by the hospital's 
policy.  The hospital policy allowed exemptions for religious or medical 
reasons, however here the nurse's objections were based on secular non-medical 
concerns.  The court wrote in part:
By exempting employees who can produce religion-based documentation, the 
employer's flu vaccination policy is clearly not exclusively driven by 
health-related concerns. The Board cannot therefore accept the policy as a 
proper basis to find appellant committed an act of insubordination of 
sufficient magnitude to render her disqualified for unemployment compensation 
benefits under N.J.S.A. 43:21-5(b)
The religion exemption merely discriminates against an employee's right to 
refuse to be vaccinated based only on purely secular reasons.  Our Supreme 
Court has clearly cautioned that "[g]overnment may not, under the First 
Amendment, prefer one religion over another or religion over non-religion but 
must remain neutral on both scores." Under these circumstances, by denying 
appellant's application to receive unemployment benefits based only on her 
unwillingness to submit to the employer's religion-based policy, the Board 
violated appellant's rights under the First Amendment.
AP 
reports
 on the decision.


View 
article...
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