Policing Religious Exemptions to Vaccines

A group of students at Creighton University in Nebraska filed suit last week over the Jesuit university’s refusal to consider religious exemptions to its COVID-19 student vaccination requirement. Pope Francis and the U.S. Conference of Bishops have both urged people to get vaccinated against COVID-19, but the students say they have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue.

As Nebraska Medicine, a regional health-care network, explains in a Q&A on its website, “The COVID-19 vaccines do not contain any aborted fetal cells. However, fetal cell lines -- cells grown in a laboratory based on aborted fetal cells collected generations ago -- were used in testing during research and development of the mRNA vaccines, and during production of the Johnson & Johnson vaccine.”

Bob Sullivan, a lawyer for the eight Creighton students who are suing, said that while it’s true the Vatican has endorsed COVID vaccination, the Catholic Church also stresses the importance of individual conscience.

“The Catholic Church teaches that a person must always obey the certain judgment of his or her conscience -- that’s in the catechism of the Catholic Church, paragraph 1,800 -- so when the students say this will be a violation of my deeply held religious belief and a violation of my conscience, that’s the end of the discussion,” Sullivan said. “If the institution that is trying to change their mind is Catholic, they should end the pressure at that point and let the student make the decision. They can educate, they can urge, but to mandate raises it to a whole new level.”

A spokeswoman for Creighton said the university is aware of the filing but does not comment on pending litigation.

As more and more colleges require COVID-19 vaccines for students and employees, they find themselves navigating similar thorny -- and potentially litigious -- territory when it comes to evaluating requests for religious exemptions that many states require institutions to consider. Federal employment law also requires employers to accommodate sincerely held religious beliefs.

What exactly constitutes a sincerely held belief and how vigorously universities should assess this remains contested ground. Experts say religious exemptions are easily abused by people who in fact have nonreligious reasons for resisting vaccination. At the same time, it’s an area that’s exceptionally difficult for colleges or the courts to police.

“Policing religious exemptions easily gets caught into the business of policing conscience and governing the way people practice religion, and that’s a really dangerous area for universities to step into,” said Dorit Rubinstein Reiss, a law professor at the University of California Hastings College of the Law who studies vaccine law and policy. “On the other hand, not policing them -- especially in contexts like this, where we know that many people who aren’t getting vaccinated are doing so because of nonreligious reasons -- means you’re going to have widespread abuse.”

Major religious denominations are essentially unanimous in their support for COVID-19 vaccination. But as Reiss wrote in a 2014 Hastings Law Journal article about K-12 school vaccination requirements and religious exemptions, the courts have found that while states do not have to offer religious exemptions to vaccine requirements, if they do offer them, they cannot discriminate between beliefs endorsed by organized religions and personally held beliefs.

Peter McDonough, vice president and general counsel for the American Council on Education, said that generally speaking, and subject to nuances of state or local laws or regulations, colleges consider three main questions in evaluating requests for religious accommodations: “Is the religious belief sincerely held, is it in fact a religious belief and is there an undue burden imposed on the university for accommodating it?

“How a particular institution decides to manage requests for religious accommodations pertaining to a COVID vaccine is likely going to vary from school to school including within the same region or even city,” McDonough said. “Some of the factors are going to involve the intensity of desire for getting as many shots in arms as possible on campus, some are going to be determined by very practical considerations like the ability to review and manage requests for accommodations, some may be based on the comfort level with having what for some people might view as personal and private conversations about one’s religious beliefs and the sincerity of them.”

Catholic universities have been sites of intense debate over this issue. Apart from the Creighton lawsuit, two students at Loyola Marymount University, a Jesuit university in Los Angeles, sued over the university’s vaccine and related COVID-19 testing requirement: both students had obtained exemptions from the vaccine requirement, one on religious and one on medical grounds, but they argued that that students like them who were exempted on medical or religious grounds were subject to disparate and "discriminatory" treatment in terms of masking, testing and quarantining protocols.

In August, a judge denied their motion for a temporary restraining order blocking the requirement, finding they showed little likelihood of success in the case.

Another Jesuit institution, Boston College, also got pushback in July when some students and parents expressed anger over the university’s reported denial of exemption requests from individuals who did not want vaccines because of the link to aborted fetal tissue.

Jack Dunn, a spokesman, for BC, defended the university’s approach.

“Boston College’s decision to mandate vaccinations for all students, faculty, and staff resulted in a BC campus community where 99.3 percent of faculty and staff and 99.3 percent of students are vaccinated,” he said via email to Inside Higher Ed. “A limited number of exemptions were granted for legitimate medical and religious reasons. The university was not swayed by the argument that religious exemptions should be issued for Catholics, as Pope Francis and his Cardinal Archbishops have clearly voiced their support for vaccinations.”

The Reverend Dennis H. Holtschneider, president of the Association of Catholic Colleges and Universities, said Catholic institutions are taking a mix of approaches within the context of local laws and regulations.

“Where there is freedom to do so, some Catholic universities are just saying, ‘no, there’s no such thing as a Catholic exemption per se,’ and other Catholic universities are honoring a larger right of conscience: ‘If it’s your conscience, that’s where you generally are, we’ll honor that,’” he said. “You’re seeing both happen at different institutions right now.”

It’s unclear just how many students are requesting exemptions from vaccine requirements on religious grounds. Indiana University, which won a federal court case defending its right to impose a vaccine mandate, reports that it has granted 9,394 religious exemptions and 907 ethical exemptions across all of IU’s campuses across the state. That equates to about 9 percent of the total population of 115,000 students, faculty and staff who received an ethical or religious exemption.

An article in The Sacramento Bee last month about a data breach at California State University, Chico, which leaked some students’ exemption requests, gives some insight into some of the forms these requests can take. The Bee reported that students who said they believed in health through prayer were approved for exemptions. Many referred to their bodies as temples.

“My religious beliefs follow natural healing through God’s divine power and faith healing,” the newspaper quoted one approved request, from an NCAA athlete. “My beliefs question the necessity of modern medicine including vaccinations.”

The Bee also reported that students who said they were Mormon, Catholic and Serbian Orthodox were approved for religious exemptions. Many who said the vaccine had fetal tissue and “abortion-derived cells” were denied.

A CSU Chico spokesman said 130 exemption requests were exposed through the data breach, and that the university’s investigation is ongoing. The university has approved nearly 400 requests for religious exemptions to date.

Courts have come to different conclusions on religious exemption policies.

A federal judge in Michigan issued an order Aug. 31 temporarily blocking a vaccine requirement for student athletes at Western Michigan University after the university refused to consider four women’s soccer players’ requests for religious exemptions. In denying the requests, the university cited its “compelling interest” and said that “prohibiting unvaccinated members of the team from engaging in practices and competition is the only effective manner of accomplishing this compelling interest.”

U.S. District Judge Paul L. Maloney disagreed with Western Michigan's line of reasoning, holding in his Aug. 31 order that it “is not justified by a compelling interest and is not narrowly tailored.”

A key variable in the Western Michigan case, however, may be that the university had different policies for athletes and nonathletes, requiring vaccination of student athletes while allowing other students to choose between vaccination and remaining unvaccinated and submitting to a weekly COVID-19 testing requirement.

“In the Court’s view, Defendants have not established that policy used for non-athlete student athletes would be ineffective to achieve Defendants’ compelling interests,” Maloney wrote in a Sept. 13 order extending the injunction.

Meanwhile, a federal district court judge in Massachusetts denied a motion to block a vaccine requirement in a lawsuit brought in part by a student at the University of Massachusetts at Boston whose request for a religious exemption to the COVID-19 vaccine requirement was denied.

U.S. District Judge Denise J. Casper found that the student, Cora Cluett, did not show likelihood of success on the merits of her claim that the decision of Interim Vice Chancellor for Student Affairs Sean De Veau to deny her request for a religious exemption violated state law and her state and federal constitutional rights. Casper wrote in the Aug. 27 ruling that De Veau "relied on public statements from the Catholic Church regarding the COVID-19 vaccine" and, along with information about her vaccine history, "asserted religion did not prevent her from receiving the vaccine, should she personally choose to receive it."

Casper further wrote that "the balance of equities tips in [the university's] favor given the strong public interest here that they are promoting -- preventing further spread of COVID-19 on campus, a virus which has infected and taken the lives of thousands of Massachusetts residents."

McDonough, of ACE, said every college has to make a choice about how aggressively it wishes to police religious exemption requests.

“A school has to decide if they’re going to really review and consider the request or are they going to pretty much rubber-stamp them,” McDonough said. “We’re at a moment here where we have evidence of fraudulent vaccine cards; we have assertions of positions about vaccines that are based upon fundamentally disproved statements and a lack of embrace of science and data. This issue about a religious accommodation pertaining to COVID vaccines arises in a context of some level of distrust about honesty in both directions.”