A recent expose from Project Veritas revealed that Pfizer apparently desperately wanted to keep secret the fact that cells descendant from fetal tissue collected during elective abortions in the 1970s and 1980s were used in the research and development of the COVID-19 vaccines.
For many people, this fact, if true, is reason enough to seek a religious exemption from government-imposed vaccine requirements - the trend du jour among Democrat-run states.
But they might be surprised to learn that several of these mandates do not allow for religious objections.
The Supreme Court’s recent decision in Fulton v. Philadelphia holds the key for why such regimens are unconstitutional.
Fulton v. Philadelphia
Last June, the Supreme Court decided Fulton v. Philadelphia. The case had to do with whether the city of Philadelphia could refuse to refer foster children to Catholic Social Services, a private agency that matches children with foster families, because of CSS’s policy of not approving same-sex couples as foster parents.
Philadelphia told CSS that its policy violated a clause in its contract with the city that stated that no agency could reject prospective foster parents “based upon ... their ... sexual orientation unless an exception [was] granted by the Commissioner ... in his/her sole discretion.”
CSS sued the city, arguing that its exclusion it from the municipal foster care system due to its religious beliefs violated the agency’s rights under the Free Exercise Clause of the First Amendment.
The city pushed back, saying its policy was lawful under a 1990 Supreme Court case called Employment Division v. Smith, which held that “generally applicable” laws not targeting specific religious practices do not violate the Free Exercise Clause.
In Fulton, the Supreme Court considered what “generally applicable” means. It explained that a law is not “generally applicable” when the government has discretion to grant or deny exemptions to it.
The high court found that because Philadelphia’s system “invited the government to decide which reasons for not complying with the policy [were] worthy of solicitude,” its non-discrimination requirement could not be categorized as a “generally applicable” rule.
The Supreme Court thus concluded that Philadelphia’s non-discrimination rule violated the Free Exercise Clause and had to be analyzed under strict scrutiny – the most rigorous constitutional test.
Under that standard, a government policy can only survive if it advances a compelling government interest and is narrowly tailored to achieve it. Legal scholars have long understood strict scrutiny to be “strict in theory but fatal in fact,” since most laws analyzed under it are struck down.
The court looked to whether Philadelphia had a compelling interest for denying CSS’s request for a religious exception. Finding none, it held that the city’s referral freeze was unconstitutional.
Government Vaccine Mandates
The Fulton decision bears directly on the vaccine mandates being rolled out by several blue states.
In New York, for example, the state issued a regulation mandating all healthcare personnel to be immunized with the Covid-19 vaccine. The regulation provides for a medical exemption to the vaccine requirement, but it allows for no religious accommodation.
Rhode Island implemented a similar requirement in mid-August for its healthcare workers. So did Maine.
Several localities have also ordered municipal employees to submit to the Covid vaccine. When Maryland’s Montgomery County Public Schools District issued a vaccine mandate for its 25,000 employees in mid-September, it too provided a medical exemption, but not a religious one.
In all of these cases, exemption requests are evaluated by bureaucrats who have discretion to grant or deny them.
Because the government is empowered to decide which requests are “worthy of solicitude,” however, vaccine mandates are not “generally applicable” rules under Fulton v. Philadelphia.
That means they must be subjected to strict scrutiny. And, under that exacting review, they cannot survive.
In response to a lawsuit challenging New York’s vaccine mandate, the state asserted only that it has a compelling interest in “promoting public health by preventing the spread of COVID-19.”
But the Supreme Court in Fulton made clear that the question is whether the government has a compelling interest in denying exemptions to applicants based on their religious beliefs – not one in making the community a safer, more welcoming place.
There’s no way New York – or any state for that matter – could make this showing.
And even if they could, Government-imposed vaccination orders that blanketly deny religious exemptions are hardly narrowly tailored since regular Covid testing of workers (and, some argue, N95 mask wearing) would protect public health without impinging on anyone’s religious liberties.
In Roman Catholic Diocese of Brooklyn v. Cuomo – another Covid-era case pitting religious liberty against blue state tyranny – Justice Gorsuch lamented that, during the pandemic, many governors had, with a “flick of a pen,” issued orders that brazenly violated the First Amendment.
“Government is not free to disregard the First Amendment in times of crisis,” he said. “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
Yet it’s been over a year since Justice Gorsuch penned those words, and things have worsened.
Government vaccine mandates are forcing people to choose between their livelihoods and their faith in what is perhaps the gravest assault on religious liberty since this pandemic began.
So, what about Fulton?
When the decision was handed down, many pundits pigeon-holed it as a narrow ruling and maligned the Court for punting on the larger issue of whether Employment Division v. Smith should be overruled.
If these critics still think it’s small ball, they’re wrong. Fulton has the potential to topple oppressive government vaccine diktats. Let’s hope that happens soon.
Ameer Benno is an experienced civil rights and constitutional law attorney. He is the founder and principal of Benno & Associates P.C., an appellate and civil rights law firm in New York City. A graduate of the Johns Hopkins University and Cornell Law School, Ameer is a former Manhattan prosecutor and congressional candidate. He is a contributor and legal analyst for Newsmax Television.
© 2022 Newsmax. All rights reserved.