Updated: Mar 16, 2022
This piece is for Christians considering objecting to a state or local COVID-19 vaccine mandate on grounds that it violates their sincerely held religious belief, practice, or observance. Key Takeaway: At the state and local level, there is little or nothing outside of existing federal law preventing a private employer for imposing a vaccine mandate on its employees.
State Police Power
by Christian, civil trial attorney, RL Johnson
While I get into the weeds quite a bit here, having consulted and advised many people on this issue, I have found getting into the weeds unavoidable.
So, let’s start with clarifying how the law defines a sincerely held religious belief, practice, or observance?
“In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the [government defines] religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970).
With this definition in hand, the first thing that I want you to take away from this video is that—as I will discuss momentarily, although cracks have recently began to appear—at the state and local level, there is little or nothing outside of existing federal law (e.g., the ADA and Civil Rights legislation) preventing a private employer for imposing a vaccine mandate on its employees.
Now, before getting in to state and local challenges to vaccine mandates, let’s start review what’s going on at the federal level.
Thus far—and notwithstanding pending court challenges and injunctions pertaining to mandates effecting certain federal contractors and employees—almost none of the five federally enacted vaccination mandates have been ruled violative of the U.S. Constitution.
In summary, here is the state of the federal vaccine mandates.
The President’s Federal Employee Mandate ENJOINED in PART
The President’s Federal Contractor Mandate ENJOINED Nationwide
The Occupational Safety and Health Administration’s (“OSHA”) Large-Employer Vaccination and Testing Mandate ENJOINED by SCOTUS & WITHDRAWN by OSHA
The Office of Head Start’s Head Start Mandate ENJOINED PENDING LITIGATION
The Centers for Medicare & Medicaid Services’ (“CMS”) Medicare/Medicaid Provider Mandate remains IN FULL EFFECT
I cover these mandates in some detail in another piece on this Blog: Religious Protection: Federal COVID-19 Mandates vs. Religious Freedom
By contrast, on the state level, the U.S. Supreme Court has generally upheld state mandatory vaccination laws is legitimate exercises of the state's police power to protect the public health and safety of its citizens.
Indeed, the U.S. Supreme Court has rejected as bases for objecting to state’s mandatory vaccination requirement …
Alleged violations of a plaintiffs’ equal protection and substantive due process rights under the Fifth and Fourteenth Amendments;
Fourteenth Amendment “bodily integrity” or “right to refuse unwanted medical treatment” claims; and, until recently,
First Amendment’s Free Exercise Clause (i.e., religious exemptions) claims
That is to say, until recently, federal courts have generally rejected the claim that a state is constitutionally required to provide for a religious exemption.
The seminal case supporting this proposition is the case of Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905). Citing Jacobson, the U.S. Supreme Court has thereafter upheld a state’s mandatory vaccination law is a legitimate exercise of the state's police power to protect the public health and safety of its citizens. Jacobson, 197 U.S. at 31. Thus, understanding the Court's reasoning in Jacobson is instructive.
Facts of the Jacobson v. Massachusetts Case
A Massachusetts law allowed cities to require residents to be vaccinated against smallpox. Cambridge adopted such an ordinance, with some exceptions. Jacobson refused to comply with the requirement; was prosecuted criminally by the state of Massachusetts found guilty; and, fined five dollars and sentenced to "stand committed until the fine was paid." Jacobson, at 17.
At his criminal trial, Jacobson insisted that his liberty was invaded when the state subjected him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law that he argued was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Jacobson at 26.
Did the mandatory vaccination law violate Jacobson's Fourteenth Amendment right to liberty?
The Court held that the law was a legitimate exercise of the state's police power to protect the public health and safety of its citizens. Local boards of health determined when mandatory vaccinations were needed, thus making the requirement neither unreasonable nor arbitrarily imposed. Jacobson, 197 U.S. at 31.
The Neutrality Rule
In fact, it wasn’t until 2021 in the Tandon and Fulton decisions that the U.S. Supreme Court began to suggest that where a governmental requirement provides a secular exemption from the requirement (but no religious exemption), and the exemption system is to some extent discretionary, the requirement may not be neutral and generally applicable for purposes of the Free Exercise Clause.
The Tandon and the Fulton decisions may be summarized as follows:
Tandon v. Newsom, 141 S. Ct. 1294 (2021) held unlawful state regulations that limited religious gatherings in response to the COVID-19 pandemic while treating more favorably some comparable secular activities (e.g., getting a haircut.
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) considered and found unlawful a city’s contract provision prohibiting sexual orientation discrimination by contractors unless a specified city official, at his “sole discretion,” granted an exception violated a religious foster care agency’s free exercise rights.
The interesting thing to note here is that in their hubris, Liberal policies tend to sow within themselves the seeds of their own undoing.
Incidentally, this reminds me of the frequent and profane use of the name of Jesus as a curse word in TV and movies. It’s as if—in the impurity of their blasphemy—a part of their being cries out for salvation.
But I digress. Prior to these two cases, citizens seeking a religious objection found little or no relief at the highest court in the land.
But, more to the point, at the state and local level there is little or nothing outside of existing federal law (e.g., the ADA and Civil Rights legislation) preventing a private employer for imposing a vaccine mandate on its employees.
Christians would do well to remember that: “The Lord has established his throne in the heavens, and his kingdom rules over all.” Psalm 103:19 (ESV)
Nevertheless, we should continue to pray for our judges because—as it is written in John 19:10-11—they would have no power if it were not given from above.[i]
 See, e.g., Phillips, 775 F.3d at 543; Workman, 419 F. App’x at 352–54; Whitlow, 203 F. Supp. 3d at 1085–87; Boone, 217 F. Supp. 2d at 952–55. The alleged violation of the Free Exercise Clause was not a claim available to the plaintiffs in Jacobson or Zucht because at that time, the Supreme Court had not yet held that the First Amendment applied to the states. See Phillips, 775 F.3d at 543. Id.
 Tandon v. Newsom was issued on the Court’s non-merits or motions docket—sometimes informally called the Court’s “shadow docket”—without full briefing and oral argument. Unlike the Court’s majority merits decisions, which are generally issued after considering both briefs and oral arguments from the parties as well as input from non-parties known as amici curiae, the precedential value of a non-merits orders beyond the case in which it was issued is more uncertain, and lower courts have not traditionally treated such orders as binding. For more discussion about the Supreme Court’s non-merits orders, see CRS Legal Sidebar LSB10637, The “Shadow Docket”: The Supreme Court’s Non-Merits Orders, by Joanna R. Lampe.
[i] See John 19:10-11 (ESV) where it is written that Pilate questioning the Master thus: "Do you refuse to speak to me?" Pilate said. "Don't you realize I have power either to free you or to crucify you?" Jesus answered, "You would have no power over me if it were not given to you from above. Therefore the one who handed me over to you is guilty of a greater sin."
• Christian Legal Society
• The Library of Congress’ website:
• Civil Pro Se Forms
• Federal Rules of Civil Procedure
• Public Access to Court Electronic Records (“PACER”) system
Disclaimer: The information contained in this article is offered for educational purposes only and is not intended to substitute for legal advice and is not customized to your particular needs. Before undertaking self-representation, we urge you to consult with an attorney licensed to practice in your state.