This article was written for the Center for the Study of Law and Religion at Emory University, and it looks better if you read it on their site:
Many evangelical Christians are turning to pastors, priests, and Title VII of the Civil Rights Act of 1964 seeking a religious exemption to Covid vaccine mandates. However, resistance to the Covid vaccine appears to be rooted not in historic Christian theology, but in current social, political, and economic philosophies. The U.S. Equal Employment Opportunity Commission states that such philosophies “are not ‘religious’ beliefs [protected by] Title VII.” For example, even though no major Christian denomination opposes the vaccine, those identifying as white evangelical Protestants are both more likely to be Covid vaccine refusers than other Christians, and more likely to have voted for Trump in the 2020 election. If vaccine refusal is a religious belief, the religious exemption may be appropriate. If vaccine refusal is rooted in politics, it is not.
This need not be fatal to religious exemption requests. Instead, those seeking religious exemptions to the Covid vaccine may find success if they argue that although their vaccine opposition is not rooted in historic Christian theological orthodoxy, it may still qualify for a religious exemption as a sincerely held religious belief in a new, distinctly American religion.
The rise in requests for religious exemptions came in response to government mandates requiring employees to receive the Covid vaccine. The Department of Labor’s Occupational Safety and Health Administration (“OSHA” stated that it would require all employers with 100 or more employees to have all employees vaccinated or test for on at least a weekly basis, and the Centers for Medicare & Medicaid Services (CMS) announced that “health care workers at facilities participating in Medicare and Medicaid” would need to be fully vaccinated and that all federal employees and contractors needed to be vaccinated. However, for all of these, an employee could be exempt from the vaccine requirement if the employee could demonstrate that getting the vaccine violates the employee’s sincerely held religious beliefs.
This religious exemption is rooted in Title VII of the Civil Rights Act of 1964. Title VII makes it illegal for an employer with at least 15 employees to “refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” If refusing the vaccine is a religious belief, then it would follow that employees could not be fired or not hired based on this religious belief.
If refusing the vaccine is a religious belief, then it would follow that employees could not be fired or not hired based on this religious belief.
The analysis to determine whether an employee should receive a religious exemption is similar to the analysis used to determine whether an employee should receive an accommodation for having a disability under Title I of the Americans with Disability Act (ADA). Under the ADA, an employer must first determine if an employee qualifies as having a disability. If the employee does qualify, the employer must make reasonable accommodations for that individual.
To help employers determine whether or not an employee has a disability, the ADA defines a disability as a physical impairment that substantially limits one or more major life activities. To help employers determine whether or not an employee should receive a religious accommodation under Title VII, “the U.S. Equal Employment Opportunity Commission (EEOC) identifies four factors for…evaluating the sincerity of an employee’s religious exemption claim:”
1) whether the employee has behaved in a manner markedly inconsistent with the professed belief;
2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
3) whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
…Social, political, or economic philosophies, or personal preferences, are not ‘religious’ beliefs under Title VII.”
As further guidance, the EEOC states that although “Title VII defines ‘religion’ very broadly…Social, political, or economic philosophies, or personal preferences, are not ‘religious’ beliefs under Title VII.”
For example, in Dachman v. Shalala, a court held that an employer is “not required to accommodate [a] Jewish employee’s desire to leave work earlier on Friday afternoon to pick up Challah bread instead of doing it on Thursday evening,” stating, “‘Title VII does not protect secular preferences.’” Similarly, in Hansard v. Johns-Manville Prods. Corp., an employer was able to point to an employee’s “very recent history of Sunday work” to undermine the “employee’s contention that he objected to Sunday work for religious reasons.”1
This question of consistency presents an obstacle for Christians seeking religious exemptions to the Covid vaccine because, although white evangelical Protestants are three times more likely to be “vaccine refusers” than the “religiously unaffiliated,” no major Christian denomination opposes the vaccine. The largest evangelical Protestant denomination in the U.S., the Southern Baptist Convention, announced that it would require vaccinations for all missionaries “going into the field.” Even the Christian Science Church, which “normally rel[ies] on prayer for healing” announced that “Church members are free to make their own choices on all life-decisions, in obedience to the law, including whether or not to vaccinate.”
However, inconsistency with a belief does not, by itself, mean that the religious belief is not sincere. EEOC guidance acknowledges that “An employer … should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion, or because the employee adheres to some common practices but not others.” Inconsistency is just a factor to consider when evaluating if a request for accommodation arises out of a sincerely held religious belief.
A second obstacle for Christians seeking a religious exemption to the vaccine is Title VII’s requirement that an employee’s objection must be religious, not political. There is a strong correlation between political preference, religious identity, and vaccine resistance in America today. White evangelical Protestants are six times more likely to be “vaccine refusers” than those identifying as “Other Christians,” and an “AP VoteCast survey shows that 81% of White evangelical Protestant voters [voted] for Trump” in 2020. Research on the impacts of soci-economic status on the COVID-19 vaccination rate found that counties where people voted predominantly Republican in the 2020 presidential election were less likely to get the vaccine.2 At one point in the pandemic, 93% of Democrats reported that they had already received at least one shot of the vaccine or were likely to, compared with only 49% of Republicans.
When encountering legal obstacles, sometimes it is more effective to go around the obstacles than to fight through them. Proving that vaccine opposition is consistent with one’s Christian beliefs is an uphill battle when no major Christian denomination supports this. Similarly, proving the belief is religious — not political — is difficult when the line between the political and religious is not clear. Instead of proving consistency with historic Christian orthodoxy, those seeking a religious exemption may have more success arguing that their opposition to the vaccine arises out of a new sincerely held religious belief. The EEOC does not require that one’s religious beliefs be consistent with a traditional, organized religion. It acknowledges that religious beliefs can be “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or seem illogical or unreasonable to others.”
[A]t that point where the political is religious, it can be a new, sincerely held religious belief able to support requests for religious accommodation under Title VII of the Civil Rights Act of 1964.
When there is a blending of the political and religious, there is a point at which what was once political has become religious. And, at that point where the political is religious, it can be a new, sincerely held religious belief able to support requests for religious accommodation under Title VII of the Civil Rights Act of 1964.
The correlation of politics, religion, and vaccine hesitancy is highest with those who self-identify as evangelical. It might be helpful to identify what an evangelical is. The historian George Marsden once wrote that the simplest definition of an evangelical is “anyone who likes Billy Graham.” Throughout the second half of the 20th century, Billy Graham preached at rallies to millions of people around the world, inviting them “to accept Jesus Christ as their personal savior.” Billy Graham’s son, Franklin Graham, succeeded Billy and is now the President, CEO, and Chairman of the Board of Billy Graham Evangelistic Association.
Franklin Graham launched tours to rally evangelicals to vote for former president Donald Trump, compared those who voted to impeach Trump as Judas Iscariot, and has suggested that opposition to Trump was the work of a “demonic power.” At what point is this religious, or political, or has it become something new?
The National Association of Evangelicals answers, “What is an Evangelical?” by stating, “Evangelicals take the Bible seriously and believe in Jesus Christ as Savior and Lord,” including “a high regard for and obedience to the Bible as the ultimate authority” as a “primary characteristic.” But I have been to an evangelical church service where the worship leader led music onstage while wearing a T-shirt that proclaimed, “The Second Amendment is My First Priority.” Historically, evangelicals might have acknowledged that this shirt declares a message contrary to the Bible’s First Commandment: “Thou shalt have no other gods before me.” A new evangelicalism, however, may find this shirt’s message consistent with its new religious beliefs. These new beliefs may emphasize “separation of Church and state” or raise the question, “If the government can make me get a vaccine, what will the government do next?” These are not Bible verses – but they are quoted with the same religious conviction.
Once the political has become its own sincerely held religious belief, it can support religious exemptions.
In the recent past, Christians identifying as evangelical attended church regularly, but between 2008 and 2020 there was nearly a 69% increase in self-identified evangelicals reporting their church attendance as never or seldom. At the same time, there was a 51% increase among those evangelicals who never attended church in claiming they were politically conservative, and “the share of self-identified evangelicals who identified as ‘very conservative’ doubled from 15.8% to 30.5%” between 2017 and 2019.” The blending of the political with the religious is only problematic for those seeking religious exemptions if the blend is incomplete. Once the political has become its own sincerely held religious belief, it can support religious exemptions.
Throughout history, Christianity has appropriated various elements from the surrounding cultures. Christians in Mexico may incorporate elements of ancestor worship and Christians in Haiti may incorporate elements of Vodou. Theologians and anthropologists may ask at what point the amalgam is no longer “Christian”, but this question is irrelevant to the topic of Title VII vaccine religious exemptions.
The question we should ask about whether evangelicals qualify for a religious exemption from vaccines – indeed, the questions evangelicals themselves should ask – is not whether their religious belief is consistent with orthodox Christian beliefs, but rather: At what moment has the political become so absorbed into the religion that the political is inseparable from a new, sincerely held religious belief? Rather than fight the uphill battle arguing that vaccine refusal is consistent with Christianity and not the result of a political philosophy, employees may have more success arguing that vaccine opposition is consistent with a new and sincerely held religion – the religion of the religious Right. Employees may balk at the idea of changing their religion in order to get a religious exemption, but maybe they already have.♦