By Clifford R. Goldstein
Government accommodation of religious practices has been an enduring pillar of American liberty. In Hobbie v. Unemployment Appeals Commission of Florida (1987), the U.S. Supreme Court (8-1) said that: “This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the establishment clause.” The idea is that when policies or laws burden a religious practice, the government has the responsibility to create—narrowly, perhaps—an exemption or accommodation for those practices. That is, unless the state can show a good reason to the contrary, the free exercise of religion takes precedence. That’s the idea, anyway.
Even the infamous 1990 Employment Division v. Smith—one of the greatest U.S. Supreme Court blunders since Minersville School District v. Gobitis (1940), when the High Court ruled that school districts could force (force!) Jehovah’s Witness children to salute the flag and recite the Pledge of Allegiance against their religious convictions (overturned three years later)—still allowed the for the principle of legislative accommodation. Of course, some saw that legislative accommodation as precisely the problem. If you were an Orthodox Jew in Brooklyn or a Mormon in Salt Lake City, you’d have a good chance of getting that legislative accommodation because of the power of democratic rule. However, for a Jew in Salt Lake City or a Mormon in Brooklyn, democracy would be working against you, which is why the claim of legislative remedy rang hollow in Smith, whose damage to free exercise has never been fully mitigated.
The Vaccination Debate
Nevertheless, the idea of exemption and accommodation for religious practice remains a central component of American religious freedom. Who gets religious accommodations and why? What justifies these accommodations, especially on religious grounds, when someone who might want a similar accommodation on nonreligious grounds could be rejected? Why are religious accommodations sometimes granted, sometimes rebuffed?
It’s one thing if an adult, based on religious (or even secular) reasons, chooses to make a potentially dangerous medical decision for himself or herself. The courts have allowed a fair amount of latitude there. When, however, parents make that choice for a child, the issue gets more dicey. And in the case of vaccinations, what happens if the choice potentially can harm not just their own children but others as well?
