71 Am. U. L. Rev. 2243 (2022).

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Abstract

The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases.

This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views of the proper exercise of the state’s police powers to promote public health and safety, and of the protections afforded by the Free Exercise Clause. Part I of this article considers state vaccination jurisprudence in the United States, beginning with the seminal 1905 case of Jacobson v. Massachusetts, illustrating that federal and state courts have consistently deferred to states’ exercise of their police powers in mandating vaccination, and have held that states need not offer religious exemptions to vaccination. Part II of this article analyzes the two recent cases brought by health care workers who petitioned the Supreme Court for emergency relief from vaccine mandates. This Part focuses on the dissenting Justices’ view that a state must offer a religious exemption to vaccination if it offers a secular one. Part III explores how these dissenting justices developed their interpretation through cases relating to restrictions on religious gatherings, thereby changing Free Exercise jurisprudence significantly during the pandemic era. Finally, Part IV critiques the view that a state violates the Free Exercise Clause where it permits a secular but not a religious exemption to a state vaccine mandate, and explains how the Supreme Court can distinguish the cases concerning pandemic gatherings from cases involving vaccine mandates, so as to uphold state vaccine mandates as constitutional.

* Professor of Law, Baruch College, Zicklin School of Business, City University of New York. J.D., University of Pennsylvania, 1994; B.A., Cornell University, 1989. The author wishes to thank the PSC CUNY Research Award Program for its support of this work.