No Exceptions to the Free Exercise Clause

by Deborah Hommer

Many states, including Virginia, have a religious exemption to the requirement of vaccines based upon sincerely held religious beliefs. However, Virginia’s exemption has a big hole. The Code of Virginia (§ 32.1-48) states that during epidemics the state Commissioner of Health can mandate vaccinations for “all persons” except those whose health might be compromised.

HB 306 introduced by Delegate Nick Freitas, R-Culpeper, would amend the code to maintain the religious exemption during epidemics. The bill passed out of the Health, Welfare, and Institutions Committee 12-9. Now it heads to the House.

States, Congress, and the Supreme Court have a long history of protecting the Free Exercise Cause that is contained in the First Amendment. The Supreme Court case Abington School District v. Schempp determined, “The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority.”

States have achieved this through conscience laws. The Supreme Court has decided numerous cases in favor of respecting one’s conscience. And in 1993 Congress passed the Religious Freedom Restoration Act (RFRA) which, “Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion….”

Throughout the United States historically and currently the federal government and various states have enacted laws that respect the convictions and conscience of the people.

State laws include, but are not limited to:

  • Not being drafted due to conscientious objection to war.
  • Working in a pharmacy and not dispensing the pill.
  • Doctors and healthcare providers not performing abortions or sterilizations.
  • Working in jail and not pulling the lever for executions

Supreme Court cases are various and numerous; they include, but are not limited to:

  • (1891) Union Pac. Ry. Co. v. Botsford. “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
  • (1940) Cantwell v. Connecticut. States cannot put unreasonable restraints on a person’s free exercise of religion. Jehovah Witnesses are allowed to canvass, expressing their freedom to believe and their freedom to act.
  • (1963) Sherbert v. Verner. The government may not impose a substantial burden on an individual’s right to exercise their religious beliefs. This case involved a lady who was fired for not working on her Sabbath; the state denied her unemployment benefits.   “Freedom of conscience is the basis of the Free Exercise Clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs.”
  • (1972) Wisconsin v. Yoder. A state’s interest in universal education must be balanced against the fundamental right of a parent’s religious upbringing of their children. Case involved Amish parents who wished not to send their children to school after 8th grade.
  • (1990) Washington v. Harper.  “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”

In 1993 Congress passed the Religious Freedom Restoration Act after which some other landmark cases were won, including:

  • (2014) Burwell v. Hobby Lobby. Private corporations can be exempt from regulations requiring them to provide cost-free contraceptives.
  • (2018) Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. This case upholds the right not to bake a cake that violates one’s conscience.

Some may counter with Jacobson v. Massachusetts. A careful reader of that case, however, would notice that while the state can impose a monetary penalty, it could not require Jacobson to receive a vaccination violating his bodily integrity against his conscience.

What these state laws, Supreme Court cases, and RFRA have in common is that there where they have determined that it is in fact a First Amendment right (applied to the states through the 14th Amendment), there are no exceptions.  Zero. There should be zero exceptions when it comes to having the ability to say no to vaccines even during an epidemic.

Deborah Hommer resides in Fairfax County. She is founder of a 501(c)(3) ConstitutionalReflections. 

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18 responses to “No Exceptions to the Free Exercise Clause”

  1. So much for liberal dribble of ‘My Body, My Choice’!

    1. Nancy Naive Avatar
      Nancy Naive

      Okay then, let’s trade.

  2. LarrytheG Avatar

    One issue is, if your behavior and actions can cause harm to others – regardless of your reasons – religious or otherwise.

    Is your ‘right” to exercise your religion – absolute – no matter if it potentially harms others?

    If your religion – BELIEVES that abortion is your ‘right” no matter what, is it?

    1. Deborah Hommer Avatar
      Deborah Hommer

      I’m not surprised the details were lost on you. Notice the “What these state laws, Supreme Court cases, and RFRA have in common is that there where they have determined that it is in fact a First Amendment right (applied to the states through the 14th Amendment), there are no exceptions.” The key words are “where they have determined that it is in fact a 1st A right.” There are Supreme Court cases where people claimed the Free Exercise Clause and the SC denied it – eg, polygamy, peyote. You get the point.
      Now to answer your Questions: No, you cannot cause harm to others. No, religious rights are not absolute. No, abortion is not absolutely your right.

      1. LarrytheG Avatar

        re: ” The key words are “where they have determined that it is in fact a 1st A right.”
        ” No, religious rights are not absolute. No, abortion is not absolutely your right.”

        So the ‘free exercise” is no absolute but determined by SCOTUS?

        So “free exercise” is not true for abortion nor vaccines, masks, etc?

        Is it what SCOTUS determines or what you “believe” if that differs?

  3. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Sorry, the courts have long upheld the right of states to require people to have vaccinations despite their religious objections. Your reading of Jacobsen is specious. Yes, the law did not require that state officials hold Jacobsen down while a nurse jabbed him with a needle, but it did impose a fine for disobeying a law. When one has to pay a fine for exercising a religious conviction, a person is no longer freely exercising it. What if the law had required that Jacobsen spend 10 days in jail as punishment for not getting vaccinated? Would you excuse a Supreme Court decision upholding that law because Jacobsen did not “receive a vaccination violating his bodily integrity against his conscience”? For a fuller discussion see:

    More recently, as of last fall, actually, a 6 justice majority (including Barrett and Kavanaugh) of the Supreme Court refused to stay state vaccination requirements that did not include exemptions for religious reasons.

    More broadly, you claim “no exceptions for the free exercise clause”. No provision of the Bill of Rights is absolute. Otherwise, Mormons would still be able to have more than one wife. Furthermore, courts have ruled that parents cannot deny, on religious grounds, the provision of medical care for their children if doing so would endanger a child’s life.

    1. Deborah Hommer Avatar
      Deborah Hommer

      Well, point noted. However, there are many cases where the Supreme Court has really gotten it wrong. Think of Dred Scott v. Sanford, Buck v. Bell (eugenics), Korematsu v. US (putting Japanese in intern camps), Plessy v. Ferguson (separate but equal), Kelo v. City of New London (redistributing land), Lochner v. NY (bakers can only work 10 hrs a day), and there are others.

      Now I will tell you why I think the Supreme Court has it wrong in these cases: Our Bill of Rights and the Amendments are based on individual rights, not collective rights. The term “common good” that was used at the time of the Founding literally meant that if a law harms one person, it would be null and void. See John Locke’s Second Treatise of Government for further explanation. Enshrined in the 5th and 14th Amendments is due process before life or liberty can be taken. There has been no constitutional amendment to change the individual nature of our Constitution.

      Remember our Founding Fathers and Framers were heavily influenced by John Locke and they incorporated natural rights into our Constitution and our Bill of Rights, including the amendments, especially the 14th Amendment which applies the Bill of Rights to the states. Remember that the Bill of Rights was initially meant to protect the people from the federal government. It was the Reconstruction Amendments that applied the Bill of Rights to the States (because the States were the ones violating the natural rights of the citizens).

      I digress. They were influenced by Locke, not Hobbes nor Rousseau. Hobbes believed that the state was all powerful and had absolute power. He was a precursor to the collectivists, in other words, the Progressives, who changed the meaning of common good to the collectivist view that there can casualties as long as it benefits more people as a whole. Rousseau was another crazy collectivist.

      No, my reading of Jacobsen is correct. You have a point regarding your statements about disobeying. How is different from paying a fine to a speeding ticket? Still the Court respected his bodily integrity. I think they were wrong on other counts.

      The article is correct that we are in a state of upheaval with vaccinations. I truly do believe these laws violate the literal meaning of the Constitution, namely the 14th Amendment due process clause. More people have been injured/died from the Covid vaccine than all other vaccines. There’s a code that specifically states that the doctors do not have to give informed consent on the vaccines, violating the 14th Amendment due process clause. And HHS has not fulfilled their obligations under the 1986 National Childhood Vaccine Act, (see’s lawsuits against the FDA and HHS), which is why I consistently have issues with these laws and why I continually speak up.

      Again, this is another one of those cases where I think the Supreme Court and most states get it wrong. I have spent many years studying vaccine information, including historically. If you go to the vital statistics section on the CDC website. you will see the data illustrated on the website is very different from the information that the puppets on TV are telling you.

      You missed the finer details. If you would have read carefully I stated, “What these state laws, Supreme Court cases, and RFRA have in common is that there where they have determined that it is in fact a First Amendment right (applied to the states through the 14th Amendment), there are no exceptions.”

      Note the key words “were they have determined that it is in fact a First Amendment right.” As you state, there are cases where the Supreme Court did not believe they had the right of the First Amendment’s Free Exercise Clause. The Mormons were determined not to have a constitutional right to polygamy. The use of Peyote was not considered a constitutional right. I was pretty precise. Agree, no provision is absolute. I never stated they were.

      1. LarrytheG Avatar

        re: ” Well, point noted. However, there are many cases where the Supreme Court has really gotten it wrong.”

        so now, you’re NOT citing the law but your own beliefs, right?

        1. Deborah Hommer Avatar
          Deborah Hommer

          oh, please, you think the Supreme Court was correct when it stated in the Dred Scott case that black people were property of Democrats? Or that blacks needed to be in “separate but equal” rail cars? Or that the government can sterilize women? Or that the Japanese deserved to be locked up during WWII?

          I actually believe that brain cells should be working and that morality requires ones to not blindly follow whatever another man states. Remember we’re a Republic due to our rejecting Divine Right of Kings. It is morally wrong to harm other people. When man is wrong, you don’t have a “get out of jail card.” The soldiers in WWII didn’t get the excuse “I was following orders.” If it’s wrong, it’s wrong. I might suggest you actually do some reading instead of talking about things you have no clue on. I’ve done extensive research on this stuff. It’s evident you haven’t thought this through.

      2. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        I agree with you that the Founding Fathers drew heavily upon Locke. I am not sufficiently versed in this field to go much further than that, only to note that there is a school of thought that holds that Hobbes was more of an influence than you give him credit for.

        Your objection that you were “precise” in saying that “if something is determined to be a First Amendment right” there are no exceptions is meaningless semantics. Of course, that is true; it is true of any provision of the Bill of Rights. That is like saying, “If someone meets the criteria for a government benefit, he should get it. No exceptions.”

        1. Deborah Hommer Avatar
          Deborah Hommer

          JSTOR is such a great resource.
          As the AmericasSurvival article states, “Locke and the Founding Fathers, however, rejected Hobbes’ argument that the government had absolute power over its subjects. Instead, the Founding Fathers embraced Locke’s ideas of the protection of unalienable rights and limited government in the Declaration of Independence and Constitution.” That is precisely my point: The Founding Fathers could have chosen the Hobbesian theory of government, but they didn’t; they chose the Lockean form of government.

          Hobbesian was collectivists, utilitarian, absolute power of the government, more of a divine right of kings. Thus there will be no revolution against the king. Absolute power was necessary so that people can have “freedom” and “natural rights” within the laws of the king so they won’t go back to the “solitary, poor, nasty, brutish, and short” state of nature. He grew up during a civil law and experienced the decapitating of a king. So peace no matter what even if you lose some of your liberty.

          Locke (argument against Filmer’s Divine Right of Kings and the support the Glorious Revolution) was the opposite – individual rights, limited government, property is important. The social contract is between the community where the only liberty they give up is the deciding of disputes. They give up their rights to the community, not a sovereign. The legislation is the supreme power that is only to act for certain ends with the people have the right to remove if they act contrary to the trust of the people. They are a fiduciary power where they can only act for certain ends. And, absolutely, if the government gets tyrannical there is a duty and obligation to revolt and overthrow that government. He saw nature as peaceful independence. He claimed a moral law of nature (natural law) which is no one should harm another in life or liberty or take property. There is no absolute power over another. they can only use for the common good and the protection of private property.

          When the Founding Fathers were deciding what form of government to establish, they rejected Hobbes and embraced Locke. That beautiful idea of a form of government is enshrined in our founding documents – Declaration of Independence, the Constitution, and the Bill of Rights. The only country in the world where the governing documents are based on the natural, inalienable rights of the people.

          What’s important to note is that when I wrote “if something is determined to be a First Amendment right” was in the strict context of the state conscience laws that I listed (with the proviso that you can’t get hired and then say, “Oh, by the way, I can’t ….”
          And in all the Supreme Court cases I mentioned, there was no asterisk that states, “except.” There were no exceptions to the Free Exercise Clause in any of those Supreme Court cases.
          That was the context in which I stated that phrase. Clearly I don’t believe that the Bill of Rights has no exceptions to them. There are clearly many exceptions. The most notable one is from the Progressive Justice Holmes that is something to the effect that you can’t yell “fire” in a theatre.

    2. tmtfairfax Avatar

      A few points. Scalia was simply wrong in Employment Division v. Smith. The restrictions on the use of Peyote by Native Americans for religious purposes should not have been upheld. That case is as wrongly decided as the Dred Scott case.

      Caveat – I struggle with the concept of absolute religious freedom as no court would uphold a 1st Amendment right to conduct human sacrifice as a part of a religious rite. Ditto for a refusal to allow life-saving medical care for a young child. I don’t know how to draw the line.

      As to the restriction against plural marriage, I don’t think that can stand based on the SCOTUS case striking prohibitions against same-sex marriage. Justice Kennedy’s opinion in Obergefell v. Hodges was a travesty, as a legal opinion. Policy-wise, I’m fine with the concept of civil marriages for same-sex couples, but the logic of Obergefell compels voiding restrictions on plural marriages.

      Finally, the reasoning and holdings of Roe v. Wade and its progeny compel a right of choice for adults with respect to medical care. Is freedom to make medical decisions freedom to make medical decisions? Of course, it is.

    1. Deborah Hommer Avatar
      Deborah Hommer

      Yes, certainly I can pull up articles for religious exemptions. But let me ask you this:
      Should legislators create laws that force one to go on a diet, change a diet, get a medical procedure? Can a drug manufacturer not give you full informed consent to its product? It has in the past and they’re been sued.

      The reason vaccine manufacturers are not getting sued is because they’re shielded from liability by the 1986 Childhood Vaccine Injury Act. Currently you can’t sue if you get injured by the Covid vaccines is due to it being shield by the emergency unauthorized use.
      Adverse events and injuries occur consistently from vaccines and people are not given full informed consent.

      Senator Johnson just held a hearing, Based on data from the Defense Medical Epidemiology Database (DMED), Renz reported that these whistleblowers found a significant increase in registered diagnoses on DMED for miscarriages, cancer, and many other medical conditions in 2021 compared to a five-year average from 2016-2020.2 For example, at the roundtable Renz stated that registered diagnoses for neurological issues increased 10 times from a five-year average of 82,000 to 863,000 in 2021.3 There were also increases in registered diagnoses in 2021 for the following medical conditions:

       Hypertension – 2,181% increase
       Diseases of the nervous system – 1,048% increase
       Malignant neoplasms of esophagus – 894% increase
       Multiple sclerosis – 680% increase
       Malignant neoplasms of digestive organs – 624% increase
       Guillain-Barre syndrome – 551% increase
       Breast cancer – 487% increase
       Demyelinating – 487% increase
       Malignant neoplasms of thyroid and other endocrine glands – 474% increase
       Female infertility – 472% increase
       Pulmonary embolism – 468% increase
       Migraines – 452% increase
       Ovarian dysfunction – 437% increase
       Testicular cancer – 369% increase
       Tachycardia – 302% increase

    2. Deborah Hommer Avatar
      Deborah Hommer

      now for the religious exemption.
      Here is one lady’s letter for a vaccine exemption letter

      Should the law be able to mandate you put poison in you? Well, that’s what they’re doing.
      Go to the CDC’s website and look at the vaccine excipient list. Then go to the material data safety sheets. For instance formaldehyde is in certain vaccines and there is evidence of carcinogenicity. Other ingredients they haven’t studied for carcinogenicity or mutagenic effects.
      Here’s an article that discusses this:

      1. LarrytheG Avatar

        Nope , but not getting vaccinated does have consequences – as it should especially for some kinds of work that involves being in close contact with others, medical, food, etc.

  4. Nancy Naive Avatar
    Nancy Naive

    To be, or not to be… vaccinated, masked, and just plain wrong…

    “Over 12 million children have tested positive for COVID-19 since the onset of the pandemic; over 1.4 million of these cases have been added in the past 2 weeks. For the 26th week in a row child COVID-19 cases are above 100,000. Since the first week of September, there have been nearly 7 million additional child cases.”

    Sure hope there really is no long term effects, that it’s just a cold…

    1. Deborah Hommer Avatar
      Deborah Hommer

      Bill Maher pointed out the lunacy of the Left with Covid:

      “I’m not saying the medical establishment isn’t trying to figure s–t out … But how about just wrong. Wrong a lot,” he said.

      “Wrong about lockdowns, wrong about kids, wrong about ‘You couldn’t get it if you were vaccinated.’ Remember washing our packages?

      “I’m just asking, how much wrong do you get to be while still holding the default setting for people who represent the science?”

      And, yes, Omicron can be a cold: “Get Tested if you have ‘Cold’ Sumptons As They Could Be Omicron Variant, Scientist Warns.”

      The Virginia Department of Health in their Interim Guidance for Covid-19 Prevention in Virginia PreK-12 Schools confirmed the Virginia code of the fundamental rights of parents to make decisions concerning the care of their children. They state, “There is no medical reason for a vaccinated and/or masked teacher to treat an otherwise healthy unmasked student any differently than a healthy masked student.”

      Both the Virginia Department of Health and the Virginia Department of Education’s guidance emphasizes “personal responsibility” instead of across-the-board mask rules.

      Here’s what we do know:

      Masks don’t work. How do we know? If masks work, why aren’t they working?

      The U.S. is 1 of only 7 countries in the Western world making kids wear masks in schools – yet hundreds of thousands are able to go to sporting events with and in and around the community without masks. It makes zero sense. There are adverse mental and physical health effects to our children wearing these masks.

      Even CNN has been admitting that cloth masks don’t work.

      What is consistent is that where there are mask mandates, the cases keep going up. In fact, the U.S. states with masks mandates are currently reporting significantly higher COVID cases.

      These 12 Graphs that show mask mandates do nothing to stop covid.

      CNN Medical Analyst Leana Wen “don’t wear a cloth mask — cloth masks are little more than facial decorations — there’s no place for them in light of Omicron,”

      “Great conversation between @JesseBWaters and Sen. Rand Paul on mask mania: ”So really there’s no strong evidence that masks work … If anything the disease keeps going up when you have mask mandates. The masks really have had no influence on the pandemic.”

      A U.K. Study shows that Maskless Kids “Less Likely” to Test Positive for Covid:

      47 Studies Confirm Ineffectiveness of Masks for Covid and 32 more confirm their Negative Health Effects.

      There are Democrats who clearly see the political theatre of the Left and are calling them out.

      Watch Bill Maher call out the Democrats for the stupid, mindless bureaucracy – that you don’t understand the science, don’t have the facts, and there’s no science to wearing the mask. That Democrats are seemingly two-tiered system with their elite not wearing masks and their “servants” wearing masks.

      And this might be why there’s a 14 point swing to Republicans

      Bill Maher trashes leftists by saying they have ‘gone mental.” There’s plenty of other examples at the bottom of this page that illustrate that there are Democrats are getting tired of covid and the arbitrary mandates.

      Bari Weiss told Maher that so many of her liberal friends are with her and that this will be remembered for a “catastrophic moral crime” and “it’s a pandemic of bureaucracy.” With regard to our children: “In the past two years, we’ve seen among young girls a 51% increase in self-harm. People are killing themselves. They’re anxious. They are depressed. They are lonely. That is why we need to end it. More than any inconvenience it has been to the rest of us. At this point, it is a pandemic of bureaucracy. It’s not real anymore.”

      “(A 2018) CDC study found that children are most likely to get sick from flu and that people 65 and older are least likely to get sick from influenza. Median incidence values (or attack rate) by age group were 9.3% for children 0-17 years, 8.8% for adults 18-64 years, and 3.9% for adults 65 years and older. This means that children younger than 18 are more than twice as likely to develop a symptomatic flu infection than adults 65 and older.

      Yet the CDC does not recommend a mask for flu. Covid does not target children and therefore it doesn’t make sense to mask them.

      Here is some more information on the harm masks are doing to our children:

      “Dr. Marty Makary of Johns Hopkins and H. Cody Meissner, Chief of Pediatric Infectious Diseases at Tufts Children’s Hospital, wrote the article, “The Case Against Masks for Children” in The Wall Street Journal: “The Case Against Masks for Children.” Do masks reduce Covid transmission in children? Believe it or not, we could find only a single retrospective study on the question, and its results were inconclusive. Yet two weeks ago the Centers for Disease Control and Prevention sternly decreed that 56 million U.S. children and adolescents, vaccinated or not, should cover their faces regardless of the prevalence of infection in their community. Authorities in many places took the cue to impose mandates in schools and elsewhere, on the theory that masks can’t do any harm.

      “That isn’t true. Some children are fine wearing a mask, but others struggle. Those who have myopia can have difficulty seeing because the mask fogs their glasses… Masks can cause severe acne and other skin problems. The discomfort of a mask distracts some children from learning. By increasing airway resistance during exhalation, masks can lead to increased levels of carbon dioxide in the blood. And masks can be vectors for pathogens if they become moist or are used for too long…

      “Public-health officials claim to base their decisions and guidance on science, but there’s no science behind mask mandates for children. A new research study by one of us (Dr. Makary) and his Johns Hopkins colleagues found that of the $42 billion the National Institutes of Health spent on research last year, less than 2% went to Covid clinical research and not a single grant was dedicated to studying masks in children…Any child who wants to wear a mask should be free to do so. But forcing them to make personal, health and developmental sacrifices for the sake of adults who refuse to get immunized is abusive. Before we order the masking of 56 million Americans who are too young to vote and don’t have a lobby, let’s see data showing the benefits and weigh them against the long-term harm.

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