Is there likely to be a religious exemption for the COVID-19 vaccine?

Since the recent round of stay-at-home orders were introduced in Sydney and Melbourne, religious messages and motifs have been popping up at loosely defined “anti lockdown” protests across Australia.  

As one widely photographed sign at a Sydney demonstration in July declared: “The blood of Christ is my vaccine.”

No major religion in Australia has expressly told its followers to forgo vaccination against COVID-19. In fact, many faith leaders have played a key role in combating vaccine misinformation in their communities. 

But as the above sign — and others like it — indicate, that doesn’t mean people aren’t being guided by their beliefs when deciding to refuse the jab. 

It’s this grey area that Dr Renae Barker, an expert in law and religion at the University of Western Australia, said will make it difficult for the legal system to rule on whether policies that bar unvaccinated people from participating in certain activities — as already in place in Victoria, NSW and some industries — warrant a religious exemption provision. 

And the question is already playing out internationally, particularly in the United States, where thousands of people have already sought exemptions from vaccine mandates on religious grounds. 

“Do I think we need to have a conversation about [religious] exemptions? Possibly,” Dr Barker said, “I don’t think that conversation will go very far. I think politicians will very quickly say health, in this case, trumps freedom of religion.”

Australia’s history of religious exemptions

Looking back through Australia’s recent history, there’s only been one religion that has successfully lobbied for a vaccine exemption. That is the Christian Scientists, a small sect of Christianity who believes in prayerful healing to manage their health.

According to the 2016 Census, just 974 Australians reported they were Christian Scientist, out of 12 million people identifying as Christian more broadly.

In 1998, the church was granted an exemption to the Federal Government’s new “no jab, no pay” laws that meant children had to be vaccinated to receive childcare and family benefits. They were the only religion to receive such an exemption — which required parents and carers to provide a letter from a church leader — sparking unfounded fears the decision would cause a flood of new converts eager to bypass the laws.

But when it comes to COVID-19, the Christian Scientists are taking a different approach.

“As far as our practice of trusting our problems to God prayerfully, that hasn’t really altered,” said Edwina Aubin, a Christian Scientist practitioner from Brisbane. “We’re not ‘anti-vax’ as such, and neither are we ‘pro-vax’ … if it’s what’s required, then that’s what we’ll do.”

Ms Aubin explains that while the majority of the church’s members feel they don’t require traditional medicine, instead relying on prayer and the support of practitioners in the church, there’s nothing stopping them from seeking it out — whether it’s a legal requirement or not.

But even so, she said the question of whether to get the COVID-19 jab “probably has challenged many Christian Scientists”. In making the decision, she pointed to another core tenet of their beliefs: “Do to another what you want done to yourself.”

“I certainly know those who have chosen to be vaccinated have done so because they feel it’s the more loving thing to do to allay the fears of those around them,” she said.

“We’re conscious that we don’t want to make another fearful because of our stance, and if there’s no fear in our thought to go ahead and be vaccinated then that’s a more loving step to take.”

It’s this approach that led the government to scrap religious exemptions to immunisation completely in 2015, declaring the policy no longer necessary.

But COVID-19 has brought with it fresh debate around religious and conscientious objection to vaccination, particularly as states move towards a system of different rules for the unvaccinated. 

Dr Barker said just because a religion doesn’t formally ban or mandate something doesn’t mean all adherents will comply: “Each individual does often have an individual interpretation of their requirements.”

But this is an area where Australian courts have “really struggled” to make a legal distinction, she said. “And it’s a very important distinction”.

The challenge for the courts

Dr Barker said there’s been a handful of cases where Australian courts have been asked to determine whether a person really did something on the basis of their religion, which is protected under anti-discrimination legislation.

To highlight the distinction she provides this example: If someone chooses to be vegan because they believe it is good for their health and their workplace refuses to provide vegan options at a lunch event, it is not discrimination. But, if someone abstains from eating animal products because it is part of their religion and the workplace fails to accommodate this, it is.

This becomes more complicated when someone’s religious belief does not align with the commonly held practices of their organisation.

“The courts struggled with this idea that even different groups within the one larger religion might have different views and I suspect the courts will struggle even more with the idea that individuals within a religion will have a different view,” Dr Barker said.

“Religious practice and religious belief are very nuanced, and it’s very diverse, and even if we don’t think people are getting their religion ‘right’ they sincerely believe they are.

“And it’s a very challenging thing to do for a secular lawmaker, be that a legislature or a court, to say to that person ‘we think you’ve interpreted your religion wrong’.”

This means that, in the absence of religious leaders telling their followers they shouldn’t be vaccinated, any push for religious exemptions would depend on the individual being able to demonstrate why they believe their decision is tied to their religious beliefs.

How it’s being handled elsewhere

International law enshrines the right of all citizens to freely practise their religion, but that doesn’t mean it’s without limits. 

Article 18 of the International Covenant of Civil and Political Rights (ICCPR) sets out that these limits include what is necessary to protect “public safety, order, health or morals”.

In the United States, where COVID-19 vaccination requirements vary by state, the debate over how far religious freedom can stretch in the face of a pandemic is in full swing.

Just last week, the Associated Press reported that there had been a flood of workers in industries where the jab has been made mandatory submitting letters from faith leaders despite no major religion expressly discouraging people from the vaccine.

This includes about 2,600 Los Angeles Police Department employees and thousands of government workers in Washington.

Workers looking for a way out have also been sharing tips online about how to request a religious exemption, the New York Times reported this month, and seeking out obscure religious organisations sympathetic to their plight. 

But according to Douglas Laycock, a professor of law at the University of Virginia who specialises in religious liberties, it’s unclear whether there’s even a legal basis for such exemptions.

Unlike Australia, most US states allow for some form of vaccination exemption for religious reasons, although often this is only for specific groups such as school children. In some instances, these exemptions could be used in a state government context, but they would not cover national rules, such as President Joe Biden’s sweeping vaccine mandate that covers about 100 million people. 

Then there’s the issue of private employers who may establish their own exemption system, but, as Professor Laycock wrote in The Conversation, this is not required by federal law.

Given the sudden influx of people seeking religious exemptions, and the growing anti-vaccination movement, the question then becomes how to determine whether someone’s objection to the vaccine is a legitimately religious one. 

A different vaccine problem

Another pressing question for religious institutions is how they will manage in-person services if rules are put in place barring unvaccinated people from gathering.

Under NSW’s plan to reopen, only fully vaccinated people will be able to attend places of worship once the state’s vaccination rate hits 70 per cent. In Victoria, religious services were notably absent from Premier Daniel Andrews’s announcement last week.

If widespread and long-term rules are put in place limiting who can attend religious services, it will put faith leaders in the difficult position of having to turn people away. 

“A number of churches are expressing concern that this is theologically a problem for them,” Dr Barker said. “As long as religious organisations are treated the same as other equivalent secular organisations, and the usual example given is going to the cinema or theatre, it will be very hard for them to challenge.”

Just last week, Bishop Paul Barker from the Anglican Diocese of Melbourne said he feared those who were not vaccinated would be turned into “the lepers of Jesus’ day“.

“We’re anxious about where society might end up with division lines. If it’s long term, that’s one of our concerns,” he said.

Ms Aubin, who is a member of the Christian Scientists Committee on Publication for Northern-Eastern Australia, also expressed concern at the prospect of having to bar people from attending services. 

“It’s very hard to turn someone away who’s coming to a place of worship, where they feel their spiritual needs are going to be met,” she said. Currently, her church in Brisbane is permitted to host in-person services subject to COVID-19 check-ins and social distancing.

“If it was mandated to only those that were vaccinated, the only thing I could think [of to do] would be to go to hybrid services where we have both in-person and virtual,” she said. “We would just abide by whatever was required and do our best.”

If this situation arises, Dr Barker said any challenge would likely come down to an assessment of the health risk versus the benefit of allowing people to practice their religion freely.

“We don’t actually yet know what the actual effect is going to be,” she said. “We could have lots of people saying ‘I’m not vaccinated but I want to go to the mosque for Friday prayers’, or we could have absolutely nobody.

“That’s what we don’t know at this point.”

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