A person wearing a face mask and glasses looks closely at a syringe.

OHSU pharmacist Emily Chheng (cq) draws a COVID-19 vaccine at the mass vaccination clinic at Portland International Airport, April 9, 2021. The clinic is a joint operation hosted by Oregon Health & Science University, the Port of Portland and the American Red Cross. Kristyna Wentz-Graff/ OPB

Kristyna Wentz-Graff/ OPB

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The State of Oregon and many private employers are requiring workers to get the COVID-19 vaccine. But there are exceptions. According to the Oregon Bureau of Labor and Industries, “employers with mandatory COVID-19 vaccine policies will need to consider requests for exceptions for individuals with either (1) sincerely held religious convictions, or (2) a disability that prevents them from receiving a COVID-19 vaccination.” But how do those religious exemptions work exactly? And how can an employer determine if someone’s convictions are “sincerely held”? We dig into the details with Lewis and Clark Law professor Jim Oleske.

The following transcript was created by a computer and edited by a volunteer.

Dave Miller: In the last few weeks, individual employers and states and the federal government have all announced various workplace-based mandates for COVID-19 vaccinations. There are variations from place to place, but many of them include some version of a religious exemption. Tens of thousands of people around the country seem to be seeking them right now as a way to not have to get vaccinated. Jim Oleske is professor at Lewis and Clark Law School. His research focuses on the intersection of religious liberty and other constitutional values. We’re talking about that intersection in the context of a global pandemic.

Before we get to the religious exemption part of this, I just want to start briefly with the mandates themselves. We don’t have time to get into all of the different workplace mandates that have been put into place now at the federal and the state levels. But I think it’s fair to say that all of them have either been challenged or they’re going to be facing legal challenges. In general, how solid is the legal ground for a workplace-based vaccine mandate?

Prof. Jim Oleske: It depends on whether you’re talking about the federal level and the state level and the challenges are going to be different. So of course, the President announced that OSHA is going to be coming up with a rule requiring employers of over 100 employees to either require vaccines or testing. But then there are more specific rules at lots of the state levels including here in Oregon and in Washington. And the legal questions are different. Our federal government is a government of limited powers. Whereas our state governments are generally viewed as having sweeping police power that, so long as the Legislature has granted power, can be exercised. And that last point is important because a lot of these challenges to whether it’s what Governor Brown is doing here or Governor Inslee is doing in Washington will make the argument that the Legislature has not authorized the Governor to act in the particular area.

That was actually, you may recall Dave, the essence of the challenge back when the Governor announced limitations on gathering sizes in the beginning of the pandemic. Lawsuits were brought against the Governor saying she was exceeding her authority. The Oregon Supreme Court ultimately rejected that challenge. But the initial challenge brought was that the government - the Governor - did not have the authority. I expect similar types of challenges to be brought against the Governor’s Executive Order and the OHA Rules, although my suspicion is that they will not be successful challenges.

Miller: But it seems like you’re a little bit more skeptical about the possibility of the OSHA mandate staying in place. Is it possible that this could go all the way to the U. S. Supreme Court?

Oleske: It is and I didn’t want to indicate that I’m skeptical. OSHA does have explicit authority. Unlike earlier this year, we had the debate over whether the CDC could issue the eviction moratorium. There’s nothing specifically in the law explicitly authorizing CDC to do that. There is explicit authority for OSHA to take certain emergency actions in the workplace.

So there is more of a legal basis. But the argument is being made. I think the gist of the argument against the OSHA Rule, when it comes out, will be that this is not really about workplace safety. This is more about general health and they’re using a workplace safety law to try to get it [to be] a larger public health issue.

Miller: I’m curious because I’m glad you brought up the CDC question there about the nationwide eviction moratorium because that was a case where The Supreme Court basically was not deferential to presidential, executive branch power during this pandemic. Does that give us some sense of the way they might look at OSHA rules?

Oleske: I think it’s different. Remember initially they didn’t step in when it looked like the eviction moratorium was going to sunset. The challengers wanted them to step in immediately and end it and they didn’t. But then after it got re-upped is where the administration ran into problems. But again because there was an explicit authority in that case with the CDC and there is explicit authority here that Congress has provided OSHA, I think this is going to be a stronger case for the government, not a slam dunk case for the government, but I think this is going to be a stronger case for the government if it eventually gets to The Supreme Court.

Miller: So let’s turn to religious exemptions. A lot of the exemptions that I have seen used the phrase sincerely held religious belief as something that the employees have to have and have to show they have um in order to not have to get the vaccine. Is there an established definition for what a ‘sincerely held’ religious belief is?

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Oleske: Well, I would suggest we’re sort of in the process of developing that because for a very long time, (although that has long been a requirement that sometimes courts have imposed and sometimes legislatures have imposed to claim a religious exemption), usually it had not been tested. But in the years leading up to COVID, in light of some measles and chickenpox outbreaks and some increasing claims for exemptions from vaccination requirements, a number of jurisdictions started to get a little stricter and started to look more closely as to whether they thought this was really a sincere religious belief and whether it really was religious in nature. And so I would suggest in the last 5 to 10 years, we’ve had increasing scrutiny by government entities and employers over the sincerity and the religious nature of these beliefs.

And courts are on the front end of deciding how far the government can go in probing that. Again in the past, this usually wasn’t litigated very heavily. The sincerity and religious issues were usually not [litigated]. Very few people would claim the exemptions. It didn’t really threaten herd immunity. And it’s only in recent years that we’re having so many claims that public health authorities are getting worried that if too many people claim them, we won’t reach herd immunity and we have to be more narrow in how often we grant these exemptions?

Miller: Could this be a religion of one as in not connected to an established religious tradition that has a building or a book or a public philosophy. Instead, someone saying, ‘hey, this is my own religious belief and I looked in the First Amendment and it says that the government is not in the business of defining what a religion is, individuals can do that. And don’t tell me that this isn’t a religion’?

Oleske: It’s an excellent question, Dave. And the answer is absolutely yes, it can be a religion of one. The Supreme Court decided this exact issue back in the 1980s, back at a time when the Supreme Court’s doctrine required religious exemptions in some circumstances under the Constitution, the Court had to wrestle with these questions. And it had an individual whose beliefs didn’t really line up with those of most people in his church. But nonetheless, the Court, after deciding that he sincerely held these beliefs, protected them even though they were idiosyncratic to that particular individual.

So the government can test sincerity. It can ask, ‘is this a religious belief’? But it can’t reject someone because the government thinks their view is an unreasonable religious belief or not enough people hold that religious belief. That’s not a reason to reject. As you can imagine, it’s really delicate to figure out what’s a proper sincerity inquiry versus what’s an improper reasonableness inquiry. And that’s why, in the past, Courts and public bodies have generally tried to not probe too much in this area. But it’s increasingly becoming necessary with increasing numbers of people claiming exemptions to the vaccination.

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Miller: There are so many thorny issues here which I imagine is why courts or employers in the past haven’t wanted to poke at them. But one of many seems to be how you disentangle a religious belief from a philosophical one.

Oleske: Yes. In the past, most states had, at least, religious exemptions. Some states had both religious and personal exemptions. So a broader category which would cover non-religious personal objections to vaccinations, in the five years leading up to COVID that I mentioned earlier, there was some measles outbreaks and and and other outbreaks that prompted a number of states, most prominently California and New York, to get rid of the religious exemptions. It prompted some other states to keep the religious exemptions, but tighten them up to require people to come forward with more evidence of the religious objection. And in some cases, they get rid of the personal philosophical objections. But as you pointed out, distinguishing between what is a secular philosophical objection and what is a religious objection is another thorny question for which The Supreme Court itself has never given us a clear definition of where you cross the line from philosophical belief into religious belief.

Miller: How can you do that without having the government then define what is religion and what isn’t? That is the heart of this issue, and how do you ever get past that?

Oleske: It is and so long as we have a constitution that has protection for free exercise of religion and uses the word religion. So long as we have statutes that include religious exemptions or gubernatorial rules that include religious exemptions in specific reference to religion, courts, at the end of the day, will have to decide what qualifies as religion or not. But as you’ve pointed out, it’s an incredibly difficult issue. And in the vast majority of cases in the past, when religious exemptions are claimed they don’t get rejected. It’s not religious where it’s not sincere. They get rejected on the government having an adequate justification for overcoming the Religious Liberty interest?

Miller: Let’s bring this back to some of the nuts and bolts of what these exemptions are right now. In Oregon and Washington, what do people have to do? If a state worker or a health worker in Oregon or Washington right now wants to get religious exemption, what would they have to do in those respective States?

Oleske: In both Oregon and in Washington, the States have started to impose documentation requirements on folks seeking exemptions. This has not always been the case in the past. Sometimes there’s been enough to just notify one’s employer or notify the government entity that one has a sincere religious objection. They would just take your word for it. Now, because of the number of people claiming these exemptions, government entities are starting to require people to explain what their conflict is between their religion and getting this particular vaccination. And, your listeners [and readers] should be aware that the very requirement of people to fill out a form and provide that explanation is, itself, now getting challenged. In fact, there were challenges brought to similar requirements in the five years leading up to COVID, when more and more states were imposing them in light of the measles outbreaks.

Miller: What’s the argument against [being required] to actually put the reasons for the exemption in writing.

Oleske: There are different objections. One of them is a freedom of speech objection. So some of these forms, the objectors argue, amount to advocacy for vaccinations. And they don’t want to sign a form or be a party to a form that expresses a pro-vaccination message. They argue that’s “compelled expression” in violation of their free speech rights. And that argument was made again, in some of these cases, objecting to forms that were required for the measles vaccination. And courts pretty universally rejected those arguments. There are also some religious liberty arguments that ‘my religious liberty is being burdened by not essentially taking my word for it and by requiring me to provide a further explanation. that is a violation of my religion and my privacy to not have to explain all the details of my religious reasons.’ Again, I think those arguments are unlikely to prevail. I mean, to the extent challenges are being made, I don’t think challenges to the requirement that you explain your belief is going to be a successful avenue.

Miller: You were talking about how courts are a little bit leery of asking how sincere this religious belief is - whether it is religion or not. Are employers doing that themselves?

Oleske: Yes they are and in fact in the Rules that were put out from OHA, are required in some circumstances. So yes, employers are doing that in some cases. Up in Washington State, I think there’s some reporting that has been inconsistent - that the State Police are not asking any questions while other state agencies are asking questions of employees when they seek an exemption. But one [legal] question is going to be [following this set of circumstances] - okay so those questions get asked. Let’s say an exemption gets denied by an employer then an employee goes to court and challenges it. That’s when the courts will get involved in deciding whether it is appropriate and whether the employer too probing in the questions they asked.

Miller: We’ve been talking about the process of religious exemptions. But what happens in cases where there is a vaccine mandate in place right now that doesn’t explicitly include a religious exemption?

Oleske: We got an early test of this when California, in (I think it was) 2015 got rid of its religious exemption for vaccine mandates in schools. And then New York, in 2018 or 2019 followed suit. And both States got sued for removing the religious exemption. The Court said no, they could remove it. They’re not constitutionally obligated to provide a religious exemption. And most of the claims that were brought seeking religious exemptions for constitutional reasons - arguing that the constitution grants me a right to a religious exemption - were rejected. But I want to emphasize that the legal landscape changed during COVID.

The Supreme Court issued a number of decisions early and then more recently involving regulations that limited gathering sizes in a number of different states. And in those cases, religious entities brought suit and argued they should be exempt from those gathering limits. In a number of those cases, the religious entities prevailed. And so one question is [whether] the Supreme Court is changing its law, taking a more pro-exemption approach. And will they apply that in the vaccine context? Although in the past, religious exemptions that were claimed when a vaccine mandate didn’t explicitly include one, were rejected as a constitutional matter, might this Supreme Court be more open to them in the future? And I think that’s a serious question.

Miller: You said that, in general, when people lose their arguments over religious exemptions, it’s not often because a court has found an insincere religious belief or an invalid version of religion. It’s more the result of not getting the vaccine being a bigger harm for society. Here we’re talking about two different competing claims - that someone’s exercise of religious freedom could infringe on somebody else’s life. So if the case is life and safety versus the exercise of religious freedom, which one should win out?

Oleske: It’s a critical point. Even when courts have interpreted laws, whether the federal Constitution, a state Constitution or some statute granting some right to religious exemption, almost always, they [the courts] say the government can justify denying a religious exemption if there is a compelling state interest in doing so. And the quintessential, compelling state interest is protecting the health of other people. So many advocates for broad religious exemption regimes have said, ‘but when it comes to vaccination, the government can justify denying exemptions because it has to protect public health’.

So you might think, based on that, that the government is likely to win [for public health reasons] when people bring lawsuits saying ‘I’m entitled to religious exemption from the vaccination requirement’. The one complication that arises, based on these recent cases the Supreme Court has decided involving COVID gathering limits, is the Supreme Court has articulated this Rule - if the government makes other exceptions, it might have to make religious exceptions. Well, all vaccine mandates include medical exemptions. Does the inclusion of medical exemptions require religious exemptions under the Supreme Court’s new view? Probably not. But the argument is being made.

Miller: But if that exception is safe or if there’s something in the vaccine that has been shown to cause anaphylactic shock or you could actually be physically harmed by taking this thing and it’s scientifically provable, how could that be used as a reason to grant any other kind of truly non-medical exemption?

Oleske: Again, I don’t think the courts are going to go there. But the argument is being made, on the following basis; that the state’s compelling interest in having a vaccine mandate is preventing the spread to others. Well, people who are claiming medical exemptions are as capable of spreading to others as people who are claiming religious exemptions. Now, you’ve raised a very important point which is that maybe we shouldn’t think about the government’s compelling interests that narrowly - as preventing spread -, but rather as promoting public health. And promoting public health includes both preventing spread, but also preventing harm to people who will be harmed if they take the vaccine. But that raises the question of how courts are going to define the compelling interest in vaccine mandates.

Going back to the COVID limitation cases, many people thought that shopping at retail stores was easily distinguishable from gathering for bible study or religious worship because one is much more risky. You sit for longer periods of time than the other where you just go and pick up your groceries and leave. And yet the Supreme Court said they had to be treated as equivalent. And if you granted one exemption to the retail stores, you had to grant it to the churches. And so the court’s been open to comparing things that some of us might find not so comparable and some courts might be willing to do that with the religious exemptions and the medical exemptions.

Miller: You’ve been studying the law surrounding religious liberty and religious exemptions and the way it works in terms of constitutional law and society for years now. Has there ever been a time when it’s been closer to the heart of national conversations?

Oleske: No, I think between the debate over COVID Rules, the gathering limits, the vaccination and the other very high profile issues in recent years [like] arguments about religious exemptions, equality laws that protect members of the LGBTQ community, religious exemptions, and claims involving contraceptive coverage requirements, (including in the Affordable Care Act). We have these very high profile, very politically divisive issues on the national level in which these religious exemption claims are being played out. And so that has lifted the profile beyond anything I’ve seen earlier in my career.

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