Crucial constitutional questions are better addressed in calm than in crisis.
Alabama Sens. Arthur Orr (R-Decatur) and Donnie Chesteen (R-Geneva) are rendering a great service to our state in offering SB 85, a bill providing exemptions for students and their parents who hold religious objections to vaccination. I hope the legislature will give their bill favorable consideration because another crisis will come, and this bill prepares us to act constitutionally.
When Covid-19 first struck, the world was unprepared. Rightly or wrongly, President Donald Trump rolled out a vaccine through Operation Warp Speed while states, cities and school districts imposed masking requirements and other restrictions. Nonessential businesses were shut down, and for many, vaccination was mandatory.
Most complied, but many resisted, some out of concern for civil liberties, some because of religious convictions. Some believed the vaccination was wrong because the vaccine was made from cells from aborted children, and taking the vaccine makes the recipient an accessory to abortion. Others argued that the body is the temple of the Holy Spirit and should not be defiled with experimental drugs that could be dangerous. Regardless of whether we agree with them, their religious objections are protected by the Free Exercise Clause of the First Amendment.
Many who objected were military personnel. Almost all were soldiers with outstanding records of service, men and women who loved their country and wanted to continue serving, but they believed God forbade the “jab.”
The Foundation for Moral Law came to their defense, as did many other Christian legal defense organizations. As senior counsel for the Foundation, much of my time was devoted to helping such people. As a retired Air Force officer, I was awed by their dedication and courage, men and women willing to sacrifice their dreams, their careers, and their retirement for their convictions. These included cadets at the Air Force Academy, West Point, the Coast Guard Academy, and the Merchant Marine Academy, as well as active-duty soldiers, reservists, and guardsmen. One particular Marine lt. colonel with 16 years of service, numerous deployments, multiple decorations, and combat experience, chose to obey God even though it meant sacrificing his career. We counseled these soldiers, helped them articulate their objections, and sometimes filed briefs or amicus briefs on their behalf. Once, I had nearly 20 chaplains in my office from all branches of the service, united in their belief that this policy was wrong while wanting to take action to challenge it.
Many soldiers, rebuffed by their commanders, became discouraged and left the service. But for those who stood and fought, we were largely successful. In nearly all cases, those who stood their ground ultimately prevailed.
In Air Force Officer v. Austin (2022), a federal judge noted that the Air Force, like other branches of the armed forces, liberally granted medical exemptions from vaccination but almost always refused to grant religious exemptions. The judge said the Air Force had failed to show a compelling interest in denying religious exemptions while granting medical exemptions. As the judge said, those with medical exemptions and those with religious objections have one thing in common: they’re both unvaccinated.
Cooler heads finally prevailed. On Jan. 10, 2023, the Department of Defense rescinded the vaccination mandate, and on Jan. 27, 2025, Trump issued an executive order directing that soldiers wrongly discharged under the vaccination mandate may return to the service with full restoration of rank and back pay.
Studies are now showing that the vaccine has serious side effects, some of which may not appear for many years.
Thankfully, in this time of relative calm, the senators have introduced a bill setting a policy for the future safeguarding of constitutional rights. Epidemics will come and well-meaning people will rush to judgment, enacting policies that ride roughshod on civil liberties. Remember COVID.
My (overly) trusting nature inclines me to believe that many health officials sincerely believed vaccination mandates were necessary to save millions of lives. But as Justice Gorsuch warned in Roman Diocese of Brooklyn v. Cuomo (2020), “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
Brian Lyman, editor of the Alabama Reflector, objects to SB 85, in part because it provides, “The parent or guardian shall not be required to explain the reason for the exemption….”
“So if you think the MMRV vaccine will put mischievous elves in your child’s bloodstream, the state will shrug,” Lyman ridicules.
Lyman may not be aware that when soldiers sought religious exemptions from the vaccine, they were required to submit to interviews with military chaplains, and the chaplains were, in many instances, ordered to talk them out of their objections. But the Supreme Court recognized in United States v. Ballard (1944), a case involving a man convicted of mail fraud because he claimed to be in communication with angels:
Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.
Yet the fact that they may be beyond the ken of mere mortals does not mean that they can be made suspect before the law.
Likewise, the Court considered the case of Thomas v. Review Board of Indiana Employment Security Division (1981), which involved a steel foundry employee who, as a conscientious objector, refused to work on tank turrets. Reversing the Indiana court, the Supreme Court held:
In reaching its conclusion, the Indiana court seems to have placed considerable reliance on the facts that Thomas was ‘struggling’ with his beliefs, and that he was not able to ‘articulate’ his belief precisely. It noted, for example, that Thomas admitted before the referee that he would not object to
‘working for United States Steel or Inland Steel . . . [producing] the raw product necessary for the production of any kind of tank . . . [because I] would not be a direct party to whoever they shipped it to [and] would not be . . . chargeable in . . . conscience. . . .'
271 Ind., 391 N.E.2d, at 1131. The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.
“We reap bitter fruit when lawmakers cross-pollinate religion and law,” Lyman says, but that’s exactly what he wants – government officials cross-examining religious objectors to render their conclusions as to whether the religious objection is “valid.” Government officials have neither the competence nor the jurisdiction to make that kind of determination. In simpler terms, the parent’s or student’s reasons for objecting to vaccination is none of the government’s business.
Thank you, senators. By addressing this issue now, you have hopefully saved us from a constitutional crisis when the next pandemic arrives.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy, as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church (woodlandpca.org) of Notasulga. He may be contacted for speaking engagements at eidsmoeja@junocom.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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