**3. The Public Health Consequences of Jettisoning "Sincerely Held Beliefs"**

One of the key concepts on the basis of which exemptions had been evaluated was whether they were "sincerely held", a standard formally introduced in Title VII of the Civil Rights Act of 1964 (Civil Rights Act 1964). Under federal law, as supported by several Supreme Court cases in the twentieth century, such as United States v. Ballard (1944), United States v. Seeger (1965), and Wisconsin v. Yoder (1972), an individual religious exemption from vaccines was deemed legitimate when it rested on *sincere*, i.e., longstanding and committed, beliefs grounded in one's religion, even if the nature of such beliefs themselves were not fully understood by the individual claiming an exemption (Anders 2020). The effect of this stipulation was to tether one's ability to opt out of health protective public policy to affiliation with a recognizable religious tradition. In such an understanding, exemptions do not qualify as religious if they are merely *personally* held beliefs, including social, political, or economic philosophies, for according to the Equal Employments Opportunity Commission's interpretation of Title VII, religion is "comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching" (Africa v. Commonwealth of Pennsylvania 1981).

This is a standard upheld by ample juridical precedent. Burwell v. Hobby Lobby Stores, Inc. (Burwell v. Hobby Lobby Stores 2014) was a landmark decision where the Court acknowledged the claims of for-profit business owners to engage in discrimination on the basis of not violating their religious convictions. Justice Samuel Alito, writing for the majority, nevertheless concluded that the courts are quite capable of determining when insincere claims are put forward. Fraudulent or inappropriate attempts to skirt state regulation can be detected in instances in which an individual request is not consistent with demonstrated past action (Adams and Barmore 2014). While the impact of the majority's decision in this case was to strike down a requirement that the company's health insurance packages provide contraceptive options for their female employees, as had been directed by the enactment of the Affordable Health Care Act four years earlier and enforced by the US Department of Health and Human Services, the case did reinforce the importance in maintaining the distinction between sincerely and non-sincerely held beliefs. Not only could the two sorts of beliefs be meaningfully distinguished from one another, but there were also criteria for scrutinizing and evaluating a person's record:

[C]ourts are best able to examine sincerity "where extrinsic evidence is evaluated" and objective factors dominate the analysis. First, courts look for any secular self-interest that might motivate an insincere claim. In [US v. Quaintance], for instance, the defendant's desire to avoid prison and continue selling drugs offered an obvious motive to fabricate religious belief. This factor is particularly probative where the purported religious belief arose only after the benefit of claiming such a belief became apparent. (Adams and Barmore)

While on the substantive issue Burwell v. Hobby Lobby Stores signaled a setback for governmental regulatory health initiatives, sincerity as a criterion itself became reinforced following the decision. As recently as 2014, self-interest, including acting on the basis of ideology, was re-determined to be insufficient grounds for rejecting health-protective policies. As Adams and Barmore concluded in their analysis of this case, while "the judiciary has no business evaluating the moral truth underlying religious claims", objective standards do and should continue to be applied by evaluating the "factual sincerity" of proposed exemptions based on demonstrated past behaviors of the claimant. This is far from an "anything goes" standard.

Nevertheless, although the vast majority of today's religious leaders do not object to medical vaccinations, questioning the legitimacy of "suddenly held" beliefs when they are claimed (Wojcik 2022), requests for such exemptions on the basis of religion are precipitously on the rise. This is the situation in which individuals, finding no authoritative sanction in their appeal to opt out, contend that their *interpretation* of doctrine instructs them not to get a mandated vaccine in the workplace for which it is appropriately designated. For the first time in recent history, breaking over a hundred years of court precedent, these individuals' arguments are in many instances (depending on the deciding court) allowed to sidestep the distinction between "sincerely held" and "suddenly held", finding merit because the courts, more politicized than during any time in recent American history, are split. Weighing in on this "constitutional moment" in American history, Michelle Mello explains: "The Second Court of Appeals, which is a fairly high-level court of appeals, just ... joined at least one other district court, a lower-level federal court, in holding that a member of a religious denomination can assert their own interpretation of doctrine ... cit[ing] a Supreme Court case that indeed seemed to suggest something along that line" (Council on Foreign Relations).

This sea change, giving more discretion to the individual in court decisions of this nature, is occurring in a context in which the standard of scrutiny applied to any law which allows for secular exemptions is now "strict". As such, it must allow the same flexibility for comparable religious exemptions, despite the fact that secular activities bear a public character while religious activities are significant only to those individuals engaging in them. Mello cites a recent case in which the Supreme Court refused to support public health officials in the State of California during mitigation efforts following a severe outbreak of COVID-19. (Council on Foreign Relations). In the decision, the Court offered injunctive dispensation against an issuance barring at-home or private-residence Bible studies and comparable settings by restricting the headcount of all congregants. Mello concludes that decisions such as this, combined with a surge in applications for exemptions, create a "potential catch-22" for any public health organization adopting a medically exigent mandate. "If you don't have a religious exemption, you might get strict scrutiny ... because these medical contraindications are treated more favorably than the religious objections. But if you do have a religious exemption process, well, now you've got a problem because now you've got this process for considering individualized exemptions, and that could trigger strict scrutiny. So it seems like either way you turn, as a mandate designer, you might have a problem" (Council on Foreign Relations).

The implications of this new restraint on collective regulation during health emergencies are profound, especially in a context in which for vaccination campaigns to be effective they need to be adopted by a critical mass of individuals. This trend needs to be evaluated in a health policy-making environment in which, aside from COVID-19, we have also seen the resurgence of measles, and now polio, which had been absent for decades (Kuehn 2020). As critical as these cases are, it does not require a stretch of the imagination to envision worse; yet the new standard is uncompromising, not allowing for any emergency-thresholds that trigger a suspension of the norm of maximal deference to liberty.

There is an additional reason to be concerned that this shift in our traditional system of checks and balances will make a difference in population health. Historically, the link between legal barriers and nonmedical exemptions rates has long been established in public school systems in several states. States with fewer barriers to immunization exemption procedures have religious exemption rates more than twice as high as those states where it is legally harder to opt out, with predictable health consequences. (Blank et al. 2013; Rota et al. 2001) This finding suggests that if the Supreme Court decides to make the nonmedical exemption process more convenient, more people will be likely to avail themselves of the option. The standard of "sincerely held", traditionally a rate-limiter, would no longer serve as the organic barrier it had been to reducing illegitimate exemption claims, since it would not matter whether one had demonstrated longevity of commitment to the religious tradition in whose name the exemption was being sought. Nor, moreover, would it matter what authoritative representatives of that invoked religious tradition would be likely to rule on the matter. Only the arbitrary and non-morally relevant factor of *where* such exemptions happened to be invoked would be decisive, additionally welcoming an instance in which individuals would only have to move to the state where their pattern of religious commitment would not be scrutinized. In a context in which a Supreme Court is likely to restrict governmental health regulation, we all become increasingly susceptible to public health emergencies whose containment a government is impotent to affect.
