By: Tihanne K. Mar-Shall

At the end of 2021, a group of student-athletes sued their school alleging violations of their First Amendment right to free exercise of religion, among other things, for being denied religious exemptions for the Covid-19 vaccine. Western Michigan University required athletes and not other students to be vaccinated to participate in sports.

The Sixth Circuit sided with the student-athletes. The judge reasoned that since the vaccine mandate penalized students otherwise eligible to play intercollegiate sports, it withheld the benefit of participation if a student refused to violate their religious beliefs. However, the court noted its holding was narrow, and other attempts by the university to control the spread of Covid-19 may be constitutional.

The use of religious exemptions in the United States has increased significantly alongside the Covid-19 pandemic. The student-athletes at Western Michigan University’s case highlight how courts might favor empowering individuals over general public safety.

The use of religious exemptions in the context of vaccination mandates in the United States has had four phases. However, the history is sparse and lacks in-depth research because this concept is still new.

The first phase was around the 18th and 19th centuries in opposition to the inoculation of the smallpox vaccine. Some religious leaders did take the inoculation, and others strongly opposed it.

The second phase centered around mandates that local communities put into place. In the famous 1905 case Jacobson v. Massachusetts, the United States Supreme Court held that the particular vaccination law did not constrain individual liberties because of the goal to protect the public against smallpox outbreaks. In the second phase, the arguments in opposition focused more so on individual liberties rather than a religious exemption.

The third phase took off in the 1950s and 1960s following polio and measles vaccines. In this phase, the debate focused on the vaccination of children in schools. Some religious groups saw the vaccines as gifts from God. However, this first phase saw the first uses of religious exemptions.

It was not until the fourth phase that religious exemptions became mainstream. This was around the time of the origin of the anti-vaxxer movement. The movement partially started because Andrew Wakefield published an article suggesting that the MMR vaccine led to autism in children. This occurred alongside the rise of cable news and social media. It was also picked up and advocated for by a couple of celebrities.

The law recognizes that religious liberties can override mandated vaccination. However, there are worries that those concerned with their individual liberties may be using the exemption as a loophole. However, what constitutes a religious belief is left up to the individual. Religious leaders have made statements regarding their acceptance of the vaccine, but a member of the same religion can assert their own interpretation of doctrine.

The recent spike in positive cases and new variants raise interesting legal concerns. The United States has long been recognized globally as a country emphasizing agency and independence. Other countries have prioritized the public safety of the group at large differently. It is very likely that lawsuits asserting the right to free exercise of religion in opposition to vaccination, like the students at Western Michigan University, will continue as new vaccine mandates arise.

Tihanne graduated from Lewis and Clark College with a B.A. in Psychology and is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Within the topic of social justice, she has a strong interest in: issues affecting low income families, voter suppression, prison conditions, and abolishing the death penalty. Her personal interests include binge watching reality TV shows, weight training, and hot yoga.