Treat religious freedom as a conscientious objection


(RNS) – When we last met the topic was Supreme Court Justice Neil Gorsuch’s religious freedom maximalism and how it failed when the court refused to block the state’s COVID-19 vaccine mandate of New York for healthcare workers. The bottom line, however, was that we need a better way to process free exercise requests for immunization exemptions and other government mandates.

Attached is a modest proposal: Treat applicants for religious freedom in the way the military uses 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 viewed as exempting a conscript from contributing to the national war effort, whether it be find a replacement (civil war), to serve in a non-combatant role. (WWI) or perform civilian service (WWII and beyond).

During the Revolutionary War, Pennsylvania, along with its Quaker pacifist elite, imprisoned Quakers who refused to pay an imposed tax instead of serving in the state militia. (Likewise, in modern times, pacifists cannot refuse to pay a portion of their income taxes that would go to finance a war.)

RELATED: On New York Vaccine Mandate, Gorsuch’s Religious Freedom Maximalism Fails

Under our existing conscientious objection standard, an American would not be able to claim what Catholics call “cooperation at a distance with evil” as a legitimate basis for a claim of free exercise against a government mandate.

The courts would also not recognize an employer’s religious objection to asking the government for a waiver of Obamacare’s contraceptive coverage mandate on the grounds that it would lead the government to provide the coverage itself, nor will the peace activists. could withhold tax money.

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

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

In contrast, under the Selective Military Service Act, the armed forces set a higher bar of sincerity, even if it is not limited to religion.

The beliefs that qualify a registrant for OC status may be religious in nature, but need not necessarily be. Beliefs can be moral or ethical; however, the reasons why a man does not want to participate in a war should not be based on politics, expediency or self-interest. In general, a man’s lifestyle before applying should reflect his current demands. In these circumstances, the government has every right to determine that the exemption request is not based on policy, expediency or self-interest, and to ensure that the person’s lifestyle reflects its current claims.

Army regulations for obtaining commander status, for example, specify a careful and thorough review process. This would eliminate health workers opposed to the COVID-19 vaccine who never go to church, wear MAGA hats to work, and have no issues with the rubella vaccine (also developed with a cell line derived from ‘a distant abortion). The presumption would be that their objection is more political or timely, and they would be denied an exemption.

It would also require conscientious objectors to prove by “clear and convincing evidence” that they are entitled to CO status. The strict standard of review required by the Restoration of Religious Freedom Act, by contrast, says that the government can only prevail against a claim of free exercise by proving a compelling interest in the government and demonstrating that it promotes this interest by the “less restrictive.” means.”

Finally, what if the objector has a sufficiently immediate religious claim and proves with clear and convincing evidence that he sincerely believes in it but that the factual basis of the claim is patently false?

Suppose, say, an anti-vax influencer published a fake story that drugmakers pay women to have abortions in order to obtain cells to make COVID-19 vaccines. What would happen to a free exercise claim made by someone who sincerely believes in history?

It would fail.

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