One step forward, two steps back: religious freedom, vaccination and RFRA’s

I couldn’t help noticing some disturbing features of the debates over religious freedom in the last few weeks. The pattern: a government body makes a decision to improve or uphold religious freedom, and for some reason it then does a “back-flip” so that we arguably end up worse off than before. The two examples: Indiana’s RFRA law and Australia’s guidelines on vaccinations.

Example 1- Indiana

Like many others interested in this area, I previously posted about the proposals to enact a Religious Freedom Restoration Act in the US State of Indiana. In brief, this law was part of a number of similar laws that had been enacted at Federal and State level to provide greater protection for religious freedom, in the face of a very narrow reading of the “free exercise” clause of the First Amendment to the US Constitution. (Incidentally, this week was the 25th anniversary of the decision setting up that narrow reading, Employment Division v Smith, marked by an excellent piece noting it as “Justice Scalia’s Worst Opinion“.)

The law was, as previously noted, the subject of a massive campaign against it in the media, and in the political sphere, with the spectre of mass boycotts of the whole State. (And the incredible tale of a small-town pizza store, the subject of “entrapment” by a local TV reporter, led to answer “No” to the question that presumably no-one had ever asked anyone before, “would you provide your pizzas to cater for a same sex wedding?” The resulting internet “firestorm” saw an online threat to burn down the store, along with a large amount of money donated to the store to encourage them to stay in business.)

The “pizza wedding” furphy, of course, arose because one motivation behind the enactment of increased religious freedom protection is an attempt to deal with the clash created when Christian bakers, photographers and florists are faced with penalties for not wanting to devote their artistic skills to supporting an institution they believe to be contrary to the Bible’s teaching on marriage and sex.

Here, however, is where the back-flip comes in. The Indiana government decided to amend the new law (not even in force yet) to respond to the online discourse that their act was a “license to discrimination against gays”. In doing so they have ended up, according to a number of commentators in the US, with a situation that now restricts religious freedom in this area to a greater degree that had previously been the case. Now the law will make it clear that Indiana citizens who have strong religious beliefs about support for the new institution of same sex marriage may not, apparently, choose to decline to provide their skills in support of this institution. Two steps back.

Example 2- vaccination in Australia

Again, I posted about this recently. The Australian Federal government has decided, to create more incentives for all parents to vaccinate their children against common childhood diseases, to withdraw key social security benefits from those who do not do so. Their initial announcement, which I applauded, included an exemption for those who had religious objections to vaccination.

Now we hear that this religious exemption will not be preserved. In fact the number of groups to whom it would apply was already very small- the main one seems to have been the “Church of Christ Scientist”, usually called “Christian Science”. There is an excellent review of religious objections to vaccination around the world here, which reveals that this and some parts of the Dutch Reformed Church are the only religious groups which can be plausibly said to have genuine religious objections to vaccination.

Even this author concedes, however, that an exemption granted to those with genuine religious objections could arguably be limited enough not to have a major impact on the “herd immunity” factor needed to protect those who cannot be vaccinated for health reasons.

A community can afford to have a small number of conscientious objectors to immunization. (at 2019)

In Australia it seems clear that the number of active members of the Christian Science church is small, around 1000. In fact, the press report noted above suggests that the leaders of the church in Australia had indicated that they no longer objected to their members being vaccinated. So it may be that in practice the new policy will not affect many people. But in my view it is a bad precedent. Australia’s constitution, s 116, requires the Commonwealth Parliament (and, by implication, guidelines and regulations made under authority of legislation passed by the Parliament) not to unduly impede the free exercise of religion. (See my previous post summarising religious freedom protections in Australia.) Withdrawal of a benefit of this sort, which many parents rely on, without allowing at least a theoretical exemption on religious grounds, arguably amounts to undue interference.

I am not so naive as to ignore the possibility that if such an exemption is available, those who object to vaccination on other grounds might try to misuse the provision by making false claims of membership. But as I noted in my previous post, there are clear ways that courts and government bodies can test such claims. Does the person have a history of attending meetings of this organisation before the relevant change of law? Will a respected leader of the organisation testify to their membership? Is there a plausible argument that this is indeed what the religion teaches? Is it a genuine religion? A religious exemption process would involve investigating these matters, but it would allow a better balance between religious freedom and community health concerns than a proposal to ignore religious freedom altogether. Again, we have moved from a situation where there was a religious freedom exemption, even if rarely relied on, to where there is now none. Two steps back.

Is there a lesson to be learned from these two examples? To be honest, I am not sure. Perhaps one clear message is that arguing for the preservation of religious freedom is difficult in a climate where many are cynical about religion, and where it is easy not to spend the time looking into the real harms being done to believers by sidelining their genuine concerns. Even where religious freedom has been gained one day, it can be lost very easily!

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