Biden’s ‘Come on, man’ defense will not fly on religious freedom

“Come on, man,” seems to be President Biden’s signature response to any uncomfortable question. The phrase is meant to be both dismissive and conclusive in ending inquiries, frequently used to counter reporters before often walking away, and so often repeated that it appears on T-Shirts or coffee mugs and in remixes.

This week, however, it was not the pesky press but freedom itself that got hit with a version of the comeback. When asked during a CNN town hall program about those still objecting to taking COVID vaccines, Biden mocked them and their claimed rights with “Come on, ‘freedom.’ ” He then called for any police officers, firefighters, medical personnel or other first responders to be fired en masse if they refuse to be vaccinated.

Biden’s response to the question was applauded by the CNN audience, as if to say “Freedom — that is so last century.” And he reduced any vaccine refusals to claiming “I have the freedom to kill you with my COVID.”

He is not alone in such rhetoric. Chicago’s Mayor Lori Lightfoot declared that police officers refusing to take vaccines are insurrectionists.

The problem is that the courts already recognize some religious exemption arguments. Those arguments are based on both the constitutional protection of religious values but also laws like Title VII of the Civil Rights Act, 42 U.S.C. §2000e-2(a), which declares unlawful any “employment practice for an employer … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s … religion.”

The federal government also is subject to the Religious Freedom Restoration Act (RFRA), which prohibits the government and other covered entities like the District of Columbia from “substantially burden[ing]” a person’s exercise of religion. Under RFRA, there is no “Come on, man,” defense. Instead, the federal government must show that the burden imposed furthers a “compelling governmental interest” and is “the least restrictive means” of furthering that interest.

There is a move in many states to refuse to allow such exemptions, but courts have pushed back. In New York, the state is appealing a preliminary injunction against its refusal to allow religious exemptions to its vaccine mandate. A lower court found the governor’s mandate “has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.”

Likewise, the Sixth Circuit Court of Appeals this month affirmed such a preliminary injunction against Western Michigan University. The university allowed students to ask for individual exemptions but failed to grant religious exemptions under its discretionary policy.

The issue reached the Supreme Court this week when health workers challenged a similar law in Maine allowing for medical but not religious exemptions. Justice Stephen Breyer rejected an emergency motion but too much has been made over that order, which was not based on the merits of the claim. The appellate court was already expediting review of the case, and the dismissal was “without prejudice.” The health care workers can refile if circumstances change or if the appellate court rules against them. They also can refile if the lower court has not reached a decision by Oct. 29, when the vaccine requirement is scheduled to go into effect.

Previously in the term, Justice Amy Coney Barrett similarly declined to grant a request for emergency relief on behalf of eight students at Indiana University against a vaccine mandate. That mandate previously was upheld by conservative judge Frank Easterbrook, who wrote for a unanimous Seventh Circuit panel that “each university may decide what is necessary to keep other students safe in a congregate setting.” He cited the Supreme Court’s 1905 ruling in Jacobson v. Massachusetts, upholding a state small pox vaccine mandate. However, there was one major difference in Klaassen v. Trustees of Indiana University: Indiana University allows for medical or religious exemptions.

Various commentators and activists are pushing states to follow the lead of New York and refuse to recognize any religious objections to vaccines. This week, Jessica Levinson, a clinical professor of law at Loyola Marymount Law School in Los Angeles, wrote a column for MSNBC entitled “Covid Vaccine Religious Exemptions Should Not Exist.” Professor Levinson, however, refutes an argument not made in these cases. Courts have long rejected the notion that “each person would be in charge of which laws she wanted to comply with and when.” In 1990, it was Justice Antonin Scalia, a conservative icon, who wrote the opinion rejecting the use of peyote under religious claims.

Levinson quotes the Supreme Court from an 1879 case, asking: “Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?” It was a curious choice of support. The question was asked in Reynolds vs. United States, one of the most religiously intolerant opinions in Supreme Court history. Most people would recoil from the prejudice that comes out of the case, which denounces the Mormon church for adopting a practice “almost exclusively a feature of the life of Asiatic and of African people.”

Ironically, Reynolds defended Western and Christian morality against non-Christian values.

Professor Levinson is correct, of course, that religious claims are balanced against the interests of the state in public health cases. That, however, is precisely what these litigants are seeking to raise. Most states allow for such exemptions while many private employers impose alternative measures, like daily testing or remote-working conditions. States like Maine and New York offer no recognition, let alone accommodation, for religious objections to the COVID vaccine.

Again, religious objections can be recognized as valid but still fail to overcome countervailing arguments or simple accommodations. In Boston, for example, a Muslim objected to the flu vaccine in 2011 due to the use of pork ingredients; the hospital prevailed because it offered a vaccine free of such ingredients.

Moreover, even if there are exemptions to vaccines, it does not mean people cannot face other limitations, like remote learning or workplace conditions. The point is simple: Just as religious individuals do not have the absolute right to refuse any obligation as citizens, governments to do not have an absolute right to impose any obligations on citizens.

Vaccines seem to have become the latest battleground for our age of rage; there is little willingness to recognize countervailing arguments or values. People who object to vaccines are deemed “insurrectionists,” while raising religious freedoms is now likened to claiming “the freedom to kill you with my COVID.”

It is the same dismissive response that is often given to objections under other rights like free speech: Those are just abstractions. As Biden said in an earlier call for greater censorship, free speech is “killing people,” so come on, man.

The categorical rejection of any religious-exemption case runs against the grain of the Constitution as well as federal statutes. If the Justice Department goes into court with the president’s dismissive position, it could find itself on the wrong side of the next “Come on, man,” moment.

NOTE: This post has been updated from the original to correct an omission in the fourth paragraph from the end, for it to read “governments to do not have an absolute right…”