Tyranny and the Religious Exemption Trap

Last year, my niece, a civilian nuclear engineer doing work for the Navy, contacted me with questions about how she might go about preparing a statement of religious objection to a vaccine mandate she was facing. OSHA’s workplace vaccine mandate was in legal limbo at the time and everything seemed up for grabs.

The Supreme Court has since blocked OSHA’s illegal power grab and the order was officially rescinded on January 26, 2022. Is that the end of it? Only the naïve would think so. Their power grab was certainly not a new idea. Bureaucrats are monarchs without pedigrees who will do as they please until successfully opposed, and if they have the courts and the media on their side—and they usually do—the tyranny will continue.

For example, the World Health Organization (WHO) is being weaponized to allow the powers-that-be to trample our freedoms. In the words of Dr. Tedros Adhanom Ghebreyesus, director-general of WHO:

I believe the time is right for an international treaty or other legally binding instruments to provide the framework for a more coherent and coordinated response to future epidemics and pandemics.

The WHO is negotiating a legally binding treaty with member nations to coordinate global pandemic responses. Even without such a treaty, the covid response was a global imposition. The very Catholic principal of subsidiarity was globally trampled upon. Your local doctor was not allowed to treat you as he thought would be best for your particular requirements. His hands were tied by multiple levels of bureaucracy and by insurers and employers in lockstep with those entities. Your freedom to be treated as you wish and as your doctor saw fit simply did not exist in any real way (not to say that freedom of treatment was particularly stellar before covid).

WHO director-general Ghebreyesus knows that the only way to get everybody on the same page is through global tyranny. Thankfully, there is significant pushback. Concerning the proposed treaty, Shabnam Palesa Mohamed, a Steering Committee member of the World Council for Health, says that it:

essentially gives the WHO an inordinate amount of power to make decisions in sovereign countries as to how people live and how they deal with pandemics — from lockdowns to mandates over treatments and, to really, where people have started to consider a one-size-fits-all approach, which to date has actually not worked.

She warns of potentially dire consequences if two-thirds of U.N. member states sign the treaty:

If a country signs up for the treaty or it does not want to enforce that aspect of the treaty, sanctions can be imposed against that country.

And Article 2, section S of the U.N. constitution grants the WHO the power “to establish and revise as necessary international nomenclatures of diseases, causes of death and of public health practices.” And section V gives the power “generally to take all necessary action to attain the objective of the organization.” Wow,—carte blanche! A power broker’s dream.

Though the pandemic has become endemic, the tyranny continues. A young man we know is being denied his company’s profit-sharing because he has refused the now highly refutable jab. Though the science clearly shows it has outgrown its use with current strains, private-sector woke power-grabbers still won’t release the reigns.

And when it does finally fizzle, they’ll be eager for the next opportunity to flex their muscle and attack your freedom at home, at work, during travel, and at gatherings. The best defense is a good offense and we need to be philosophically and legally prepared.

Last year, in order to advise my niece and others, I had to first examine the concept of religious exemption, and grounded myself in the debate by answering these questions:

Question: Can any specific religious exemption from the law square with the Equal Protection Clause of the American Constitution?

Answer: No

Question: If religious practice is equally protected, does that make all religious tenets legally equivalent?

Answer: No. That protection is contingent upon other constitutional rights.

Question: If someone in government gets to decide whether your religious exemption is legitimate, does that, in and of itself, not smack of the establishment of a state religion?

Answer: Yes. Absolutely.

Question: Should a religious objection need to be backed by a clerical representative to be legitimate?

Answer: No member of the clerical class represents your personal conscience. Your health is a gift and it is yours to defend, not theirs.

Question: America’s human rights legislation is largely based on the Bill of Rights which is grounded in natural law. Natural law proscribes crimes against life, liberty, and property. Do practices that go against natural law become religious exemptions simply because they are held under the guise of religion?

Answer: The Constitution guarantees the right to practice one’s chosen religion, a right that does not negate the rest of the Constitution.

Whenever one starts talking about the law it is good to review pertinent terminology.

• Proscriptive law refers to a thou-shalt-not command.
• Prescriptive law, or positive law, is a command to do something.

If you are Catholic, one of the first instances of religious exemption that comes to mind is the criminal-trial witness exemption found in the sinner/confessor relationship. Interestingly, it is an exemption that bears no small similarity to the HIPAA rules governing doctor/patient relationships. Both instances are examples of the delicate balancing act that this whole process entails: in this instance, balancing justice to victims against mercy to souls and minds in need of a doctor.

The most famous of all legal codes—the ancient marriage of natural law and divine ordinance we call the Decalogue—is by far more proscriptive than prescriptive; that is, only two of the Commandments, the third and the fourth—Remember to keep holy the Sabbath; Honor thy father and mother—actually impose a positive command.

Unlike Mosaic law and our secular law, the Decalogue prescribes no earthly punishment for transgressors. Punitive laws are positive laws. The Mosaic law was, in large part, the punitive complement to the Decalogue. Similarly, secular positive law is necessary as the complement to proscriptive law: the “shall not” within the Bill of Rights.

Christian mercy is a mitigating factor, not an imposition. An imposition, that is, anything prescribed by law—that has no bounds germane to a natural-law framework—is potentially a tyrannical threat, and any religious exemption above and beyond the limits of natural law, or a guardedly merciful mitigation thereof, is an equally dangerous threat.

The laws of the state, in promoting liberty and freedom of thought, should be primarily proscriptive. The requirement for a driver’s license to drive on public roads, built as it is upon the requirement for proof of one’s ability to follow established safety protocol, is an example of a reasonable common-good application for prescriptive law.

Precisely because legitimate common-good arguments can be made, the vigilance required to establish and maintain the boundaries of such arguments must be proportional to the dangerous legal cliff that they represent. We do not have an inalienable right to drive a motor vehicle on public roads. We do have an inalienable right to verbally object to not being able to drive without a license. If the state can prescriptively regulate speech, there is nothing to prevent it from prescribing all aspects of our lives, including our choices of religion, politics, and personal behavior—our very existence.

There are those who liken talking against the COVID-19 vaccine to endangering others by shouting “fire” in a crowded movie theatre when there is no fire. This is a worn-out equivalency argument that forever rears its ugly head to make a common-good argument for broad censorship.

Some would have us believe that religious exemption is a recent conservative invention, but that is an ignorant or disingenuous assertion, as it has historically received more support from progressives than conservatives. Let’s look at that history.

The colonies were populated by immigrants of many different religious groups and, in the interest of maintaining peace and seeking eventual federal unity, they abandoned official state religion and religious tests and slowly moved in the direction of a more egalitarian approach to personal belief.

Such generality eventually gave way to exemption for specific beliefs:

• Exemptions from military service for pacifist denominations
• Religious exemptions from requirements that hats be removed in court
• Privilege to refuse to disclose the contents of confessions
• Exemptions for Sabbatarians from Sunday closing laws
• Sacramental wine exemptions from prohibition statutes

All of the above are exemptions to positive law, most of which prescribed things that were arguably beyond the legitimate power of the state anyway. In the 1940s, the SCOTUS began to rule toward broad religious exemption based on the concepts of free speech and free exercise, a view that had been rejected by the courts in the case of Mormon polygamy.

Then, in 1963, in Sherbert v. Verner, they sided with a Seventh Day Adventist who had been fired for refusing to work on Saturdays. This precedent for the strict scrutiny of any law that was deemed to interfere with religious practice was embraced by liberal justices and the ACLU, but was opposed by strict constitutional constructionists (i.e. proponents of natural law).

Sherbert v. Verner was the reigning precedent until 1990 when it was struck down by the Court with Employment Division v. Smith, which ruled that neutral laws of general applicability will be upheld even if they incidentally violate a citizen’s religious practices.

Smith was denounced from both sides of the political aisle and in 1993 The Religious Freedom Restoration Act (RFRA), which advocated for a very broad religious exemption, was enacted with near-unanimous bipartisan support.

However, a brief four years later, in Flores v. City of Boerne, the SCOTUS upheld a lower court ruling that RFRA was oppressively and unconstitutionally federalist. Since that time, many of the states have enacted their own versions of RFRA laws.

A problem with any such religious freedom legislation is that its supporters will have, at best, a love/hate relationship with the law. It will be hated by some when it is used to defend the Judea/Christian heritage and hated by others when it is used to defend sharia law and other demonstrably anti-natural-law schemes. Why do progressives—who, in general, are not religious—so vigorously support such laws? Perhaps it is because, with no emphasis on a natural law foundation, religious-exemption laws promote tribalism.

We have seen an assault upon the display of the Ten Commandments in government buildings. Is it because the Commandments have a religious connection, or because they are the preeminent ancient expression of natural law? I think the latter.

Trashing natural law never works out for the better. The book compilation of Joseph Ratzinger’s thoughts titled Western Culture contains his epilog as Pope Emeritus Benedict XVI titled “The Church and the Scandal of Sexual Abuse”, in which he describes the general breakdown of moral theology in the late twentieth century. He details how, following Vatican II, there was an attempt among theologians within the Church, in the name of ecumenism, to formulate a moral theology based entirely on scripture, rather than more largely on natural law as it had been for millennia. In his words:

In the end, what broadly prevailed was the hypothesis that morality was to be determined exclusively by the purposes of human action. While this crude strain [of morality] did not endorse the old phrase “the end justifies the means”, this form of thought had become a decisive influence. Consequently, there could no longer be anything thoroughly good, much less anything categorically evil, but only relative value judgments. There was no longer the Good, but only the relatively Better, contingent on the moment and the circumstances…

Pope John Paul II, who knew the situation of moral theology well and followed it closely, commissioned work on an encyclical to set these things right again. It appeared on August 6, 1993, under the title Veritatis Splendor [The Splendor of Truth], triggering vehement backlashes on the part of moral theologians.

Natural law, indispensable as a Christian moral principle, is equally indispensable as the great bridge that it has proven to be between the secular and the religious and is the only viable mitigating factor between competing religious exemption interests.

So, what about religious exemptions from the COVID vaccines? In promoting these vaccines, the greater good argument has been invoked by many, including the pope. But the medical evidence is very weak, the reasoning flawed and highly politicized, and the drug experimental, its long-term effects unknown. A prescriptive law mandating the use of such a drug is clearly an offense against natural law, running contrary to life, liberty, and the pursuit of anything.

Catholics properly formed in the faith understand the necessity of acting in accordance with one’s conscience and the responsibility inherent in the proper formation of that conscience (e.g. you can hardly make a “Catholic” conscience claim if you reject Catholic moral teaching). That is the best platform on which to build a case for a religious exemption because it is a universal—a catholic—platform, one that makes the vaccines stand on their own merit with the conscience as the sole and final arbiter.

Many are seeking religious exemptions based on the fact that the vaccines are compromised, in one way or another, by the use of aborted baby tissue. It is a good natural-law argument as well; however, in the minds of some, it suffers from the concept of lesser culpability due to the remoteness of the evil. And what about the next drug they want to force on you? One uncompromised by abortion? What then? If the tainted-by-abortion argument works this time around, it’s still just kicking the can down the road, because winning this round on such a basis is a very temporary victory, one that implies that you would be onboard with forced medical care were it not for that single issue.

The right of conscience argument makes it your decision—it’s your conscience, not your bishop’s; not your pope’s. The duty to follow a well-formed conscience is as dogmatically Catholic as it gets, and objecting simply for the sake of your own heath is sufficient.

Tyrants will justify their lying, thieving, murderous mode of operation by invoking natural law’s greater-good argument to justify their own dismissal of the rest of the same tradition.

A proliferation of RFRA-style religious-exemption laws easily becomes a cacophony of dangerously-irreconcilable tribal privileges if advanced without the guidance of natural law principles.

Prescriptive laws or mandates for medical treatment are an offense against natural law, the U.S. Constitution, personal liberty, Catholic moral teaching, and religious freedom. Objections that proceed from any other foundation are destined to fail, or worse, to set precedents that threaten other liberties.