Fulton and Government-Mandated Vaccinations

Abstract

COVID-19 vaccine distribution is now in full swing. Some states have signaled that, in the coming months, they may require certain people to be vaccinated—health care workers, public university and college students, and public school students among them. But what about those who refuse a government-mandated vaccination on the basis of their sincerely held religious beliefs? Not all states exempt religious believers from vaccination requirements. In such situations, the First Amendment’s Free Exercise Clause may—or may not—relieve a religious objector from receiving an otherwise required vaccine. This Term, the Supreme Court will decide Fulton v. City of Philadelphia, in which the Court has been asked to overturn Employment Division v. Smith (1990). Smith prohibits the judiciary from carving religious exemptions to neutral and generally applicable laws, even if such laws burden a person’s free exercise rights. Overturning Smith could, then, affect the constitutionality of mandatory COVID-19 vaccination programs. Nonetheless, I argue in this essay that no matter how Fulton is ultimately resolved, it likely won’t have much to say about whether the judiciary can craft religious exemptions to government-mandated COVID-19 vaccinations. I argue that this is the case for at least two reasons. First, Smith isn’t likely to be overturned this Term given some of the complexities in Fulton’s factual and procedural history. And second, even if it is, state governments likely have a compelling state interest in mandating vaccinations to combat COVID-19, at least in many instances.