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What the Founders thought about vaccines / November 03, 2021

I often hear people who are opposed to mask and vaccine mandates claim, “It’s unconstitutional!” My first question is always, “Where in the Constitution are you getting this?”

I guess out of an abundance of caution, government vaccine mandates have granted opt-outs for people claiming a nonmedical or “religious exemption.” But just what exactly is the basis for an exemption on religious beliefs or practices? Is there scripture, teachings, or doctrine in any religion that prohibits the taking of a vaccine? Or are these claims of religious freedom in reality political objections? Some people see the vaccine as “big government” imposing its power — just more conspiracy nonsense drummed up by conservative media.

We must first determine whether the government (local, state, or federal) can legally or constitutionally mandate citizens to take a vaccine. Simply put, in our constitutional system of laws and freedoms, the question comes down to the balance between personal liberty (choice) and the public good, i.e., the collective security of the community. And, we must also delineate the relationship between protected religious freedom and the responsibility of the state to act on behalf of the whole. I think the answers are clear if we study the Founders’ intentions, court rulings, and current opinions.

Thomas Jefferson authored the foundational document on the subject in his 1786 “Virginia Statute of Religious Freedom.” Everything about “separation of church and state” and the “free exercise of religion” in America followed from that. Jefferson: “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened.” And, “nor shall he otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess and by argument maintain their opinions in matters of religion.” The “Virginia Declaration of Rights,” penned mostly by George Mason, includes Section 16 which codified that “all men are equally entitled to the free exercise of religion” and prohibited the “establishment of religion” or church. This document comprises Article I of the Virginia Constitution.

The two protections were reinforced in 1791 in the Bill of Rights’ First Amendment. Further, some years later in a letter Jefferson clarified by using the phrase “Separation of Church and State.” As we’ve interpreted these rights over time, we have agreed that Jefferson’s “wall of separation” was not impervious but it is substantial. Roger Williams, founder of the colony of Rhode Island, had first referred to a “wall or hedge or separation.”

So what exactly is to happen when individual liberty and the state’s power collide? Jefferson: “Should a man disturb the peace and good order of the civil police he should be punished according to his crime, let his religion be what it will.” And more to the point he wrote, a person cannot be persecuted for beliefs — “Tyranny over the mind of man.” However, when religious “principles break out into overt acts against peace and good order” society can regulate for the good of the whole. For all the liberalism we attribute to Jefferson, Patrick Henry, and George Mason, make no mistake that they believed that the rights of the individual may be subject to just laws of a society to maintain its integrity.

Even Thomas Paine, who along with Sam Adams, the most radical of Revolutionaries, wrote, “In America the law is King.” As strongly as Jefferson was committed to freedom of thought and religion, he also held that no person can use religion to become law for himself. The Founders adopted Rousseau’s doctrine to which we all agree, the “Social Contract Theory.”

The U.S. Supreme Court has addressed this specific issue at least four times.

1. Reynolds v United States, 1879, 9-0. This is the foundational court ruling on the separation of church and state. Reynolds, a Mormon, challenged the law prohibiting polygamy claiming that it was not bigamy, was a church practice, and was protected under the First Amendment. The Supreme Court disagreed, siding with the government’s anti-Mormon position which held that polygamy was socially destructive and a moral menace to the country. The court established that religious practices that endanger the public interest and a just law can be prohibited and is not protected. An underlying anti-Mormon attitude tainted this decision but the precedent stands.

2. Jacobson v Massachusetts, 1905, 7-2. The 1903 state law that mandated smallpox vaccinations was upheld along Jeffersonian principles. Jacobson, an anti-vax pastor, had defied the law citing his individual freedom was violated. He was fined $5. The great Justice John Harlan wrote that the state has legitimate power over religious freedom when the public good is at stake. Harlan: “There are manifold restraints to which every person is necessarily subject for the common good.” Since this was a City of Cambridge requirement, it’s clear that both the state and local municipalities fall under the ruling.

3. Zucht v King, 1925, 9-0. Upheld the city of San Antonio’s ordinance prohibiting children, “no child or other person”, from attending school without a smallpox vaccination. Justice Brandeis, “It is within the police power of a state for compulsory vaccination.”

4. Employment Division, Oregon v Smith, 1990, 6-3. Smith was a member of a church which used Peyote, a banned substance, in religious services. He was fired from his job with the state for breaking the law so he claimed that violated his right to freedom of religion. Justice Antonin Scalia disagreed, writing that the law had a “compelling government interest” to be enforced. Scalia drew the line between religious beliefs and practices. But the bottom line is that religious beliefs and practices do not excuse people from complying with “just” laws. Scalia paraphrased Jefferson’s philosophy. The Court did provide a carve-out for Native Americans who have used the hallucinogen for centuries in their religious ceremonies.

Opponents of mandates say the Court has also allowed for the “right to refuse medical treatment”, but only in rare and unusual circumstances not applicable to the general public.

So what’s the other side of this argument? What objections based on religious beliefs are being used to claim exemption from mandatory vaccines? Quite frankly, I have no idea. There were anti-vaxxers during the smallpox and polio outbreaks in our history, and here we go again. The Anti-Vaccination Society came together in the 1890s and the Anti-Vaccination League was formed in 1908 to oppose “Medical Tyranny.” Both organizations based their arguments on myths and misinformation. Opponents also point to Title VII of the 1964 Civil Rights Act that prohibits discrimination based on religion, among other things, for employment. But the vaccine mandates are not aimed at religious beliefs.

The government is asking people who claim exemption basically to prove their religious belief and adherence, which is a bit heavy-handed I think, but the Army similarly has a process for those claiming “conscientious objector status.” So far, there have been no legitimate claims made for exemption by church leaders of any mainstream religious sect, Catholics and Protestants alike. However, many Evangelical Christians and Mormons believe that unvaccinated kids should be allowed to attend school. Some religions, Judaism and Islam, have stated that adherents have a moral responsibility to be vaccinated to protect others.

According to the government, a person does not have to be a member of a recognized religion or church, rather he or she just needs to show a “sincerely held” religious belief in claiming an exemption. Religious beliefs about vaccinations are divided among those who believe in divine providence to protect them and those who believe that vaccinations are a gift from God. What’s left among church groups? I can’t speak for them, but this is my understanding:

1. Dutch Reform: There’s about 1,000 “Reformed” congregations in the U.S. having a “tradition of declining vaccinations”; it seems to be individual choice among members.

2. Jehovah’s Witness: Witnesses were once opposed to vaccines, but beginning in 1952 they have supported them and today say they are necessary to prevent spread of Covid.

3. Amish/Mennonite: The Amish, who have been hit hard by Covid, oppose the vaccine.

4. Christian Scientist: Adherents believe that cure for disease can be found through prayer. There have been past cases where believers have died rather than getting available medical treatment, and we’ve seen battles between parents and Child Protective Services over treatment of sick children. It appears that now they accept the need for the Covid vaccine. They and Reformists have long fought measles outbreaks.

There are maverick pastors around the country who have publicly condemned the Covid vaccine. Of course this gets them on Fox News. One guy says he’ll write up an exemption request for anyone who sends money to his church. Not exactly a personal conviction.

I’m not sure where the West Virginia rattlesnake handlers come down on this but I can guess. If the rattler bites you, and they will, and you die, it’s God’s will. If you survive the bite, then it’s God’s will. It’s kind of a spin on the medieval floating test for witches.

On the political side, there’s plenty of talk but no fodder. The Republican Governor of West Virginia Jim Justice said this about the status of vaccines. “No way, ever, shall we have a vaccine mandate for school kids in West Virginia.” The interviewer correctly told him that several vaccinations are already required for kids in his state under his name: polio, measles, rubella, Chicken Pox, Hep B and others, the same as in other states. So she asked what is different as to the Covid shot. He calmly said he doesn’t believe that people should be forced, it is an individual “choice,” adding it should be the parents’ decision in the case of children. She asked him two more times why the difference and he wouldn’t address it. But he knows. It’s simply playing to a base of conservative supporters. The governors of Mississippi and Alabama have responded the same way, putting cheap political votes ahead of public health.

Private companies have the right to require vaccines for employment. The president can require the shot for federal government workers, including the military, through executive orders. Kids can be required to be vaccinated in order to attend public schools. The state and local government can require vaccines for public employees including school teachers, police, public works, and fire as requirement for employment. The state can mandate vaccinations for their colleges and universities. People who have allergies to vaccine ingredients have legitimate medical exemption claims.

Unless the Supreme Court reverses their standing precedents, current vaccination requirements are constitutional.

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