Ninth Circuit Judges Question Whether a Catholic Can Sincerely Object to the Covid Vaccine

At oral argument last week in Rolovich v. Washington State University, two judges on a Ninth Circuit panel seemed to think that a devout Catholic cannot have a sincere religious objection to receiving the covid vaccine. That is simply not a judgment that they have any authority to make.

For what it’s worth, I am a Catholic who determined (largely for the reasons spelled out here) that it was morally permissible for me to take the covid vaccine, notwithstanding that the development of the vaccine employed cell lines drawn from tissue obtained from two abortions performed decades ago. Even though I disagree with those Catholics who determined otherwise, I respect their obligation to follow their own informed consciences on the matter.

More importantly in this context, it’s well established that the government may not declare an official Catholic position on an issue and reject as insincere a religious-liberty claim made by a Catholic who doesn’t adhere to that position. It’s not clear that Ninth Circuit judges William Fletcher and Milan Smith understand that.

One large question in the Rolovich appeal is whether the district court, in deciding against Rolovich on his Title VII claim for a religious accommodation, properly concluded that his refusal to take the covid vaccine wasn’t based on a sincere religious belief.

After Nick Rolovich’s counsel described how Rolovich—who was then WSU’s head football coach—met with his bishop and a campus priest in discerning that his Catholic faith required him to refuse to take the covid vaccine, Judge Fletcher interjected:

“That’s uphill work, given that it’s the Catholic Church, and there are an awful lot of Catholics who were vaccinated.” (OA at 5:30-5:38.)

When counsel for the United States as amicus noted that the Catholic Church compels its members to follow their religiously informed conscience, Judge Fletcher appeared to laugh. (OA at 13:02-13:27.) He also suggested that Rolovich could not have “a bona fide religious objection” unless the Catholic Church compelled the faithful to refuse the COVID vaccine. (OA at 13:33-13:53.)

Judge Milan Smith thought it significant that the Catholic Church does not teach that “you must decline [the covid vaccine] because of the abortion-related issues.” (OA at 14:52-15:10) He then suggested that the Ninth Circuit might “view the record as saying that [Rolovich] wasn’t really concerned about the religious aspect of this until later on, he kind of got his tit in the wringer, needed an answer, and got the Church involved.” (OA at 15:39-58)

As the Supreme Court explained in Thomas v. Review Board (1981), religious-liberty rights are not “limited to beliefs which are shared by all of the members of a religious sect,” and “it is not within the judicial function and judicial competence to inquire whether [a plaintiff] correctly perceived the commands of [his] faith.” The court’s “narrow function” is to judge whether a plaintiff’s objection was based on an “honest conviction.” Judges may not delve into religious doctrine and determine whether an objector correctly understands his faith.

On the facts, Rolovich’s record of sincerity is among the strongest in any reported vaccine-exemption case. In the summer of 2021, before the Governor amended Washington’s vaccine mandate to change the personal/religious exemption to a religious-only exemption, Rolovich sought spiritual guidance from WSU’s Catholic chaplain. The chaplain told Rolovich he had a religious duty to form and follow his conscience, directed him to the Catechism and diocesan moral guidance, and in the end encouraged him to seek a religious exemption. Rolovich also consulted with the Catholic bishop of Spokane, who concluded that Rolovich is “a man of faith who sincerely tries to live his life in a manner that seeks God’s will.” Rolovich’s exemption letter cites the National Catholic Bioethics Center, the Catechism, and Catholic moral teaching.

Moreover, WSU itself found Rolovich sincere. The committee that WSU set up to evaluate religious exemption requests found that Rolovich’s request was “based on a sincerely held religious belief.” But WSU’s president, athletic director, and chair of the Board of Regents were upset when they learned Rolovich was seeking a religious exemption. They were concerned that having a “high profile employee” request a religious exemption “tarnished WSU[’s] brand.” They were, in their own words, “pissed,” “so angry … we cannot see straight.” They mocked “his devoted religion,” and said that denying Rolovich’s exemption request would “be a great lesson for current or future coaches about decisions you can or cannot make as a head coach.” (Quotes, with citations, come from Rolovich’s brief.)

WSU didn’t just want Rolovich gone. Internal messages show that it also wanted to dodge its liability for his multimillion-dollar payout. It appears that’s why WSU allowed the athletic director to overrule its committee’s finding that Rolovich’s exemption request rested on a sincere religious belief.

There is ample evidence that would enable a jury to find that WSU did not want to give Rolovich a religious accommodation, that it decided to terminate him before it reviewed his exemption request, and that it wanted to evade its contractual obligations to him. As the Supreme Court’s decision in EEOC v. Abercrombie & Fitch (2015) makes clear, a discriminatory motive itself violates Title VII. Thus, even if the panel believes that accommodating Rolovich would impose an undue hardship on WSU, WSU isn’t entitled to summary judgment on Rolovich’s Title VII claim.

Judge Fletcher’s and Judge Smith’s remarks are inappropriate and at odds with binding precedent. Let’s hope that they don’t infect the panel’s decision.