Federal judges move to limit religious exemptions

When Sherry Detwiler received a religious exemption from getting a COVID-19 vaccination for her job at an Oregon hospital, officials there required her to wear a mask and undergo weekly antigen testing.

But Detwiler, the hospital’s director of health information, objected to the testing. She argued that, as a Christian, her “body is a temple of the Holy Spirit” and the test’s nasal swabs would introduce a harmful substance and go against her beliefs. Officials at the Mid-Columbia Medical Center in The Dalles, Ore., denied her an additional accommodation and fired her in 2021. Detwiler took the nonprofit hospital to court.

Last week, a 9th U.S. Circuit Court of Appeals panel ruled against Detwiler, deciding that her objection to the antigen testing was based on a secular medical judgment, and not her religious beliefs. Legal experts, though, contend the 9th Circuit’s view on what does and doesn’t warrant a religious belief sets a concerning precedent that could affect more than just COVID-19 cases.

Detwiler’s dispute with the hospital traces back to a 2021 Oregon Health Authority rule requiring healthcare workers to be vaccinated against COVID-19 unless they have an approved exemption.

Though Detwiler received the vaccine exemption, she objected to the required nasal swabs as she said they contained ethylene oxide. She pointed to research indicating this substance is carcinogenic, and said she had a “religious duty to avoid defiling her ‘temple’ by taking in substances … which could potentially cause physical harm to her body.” She said she confirmed this belief through prayer, as well.

While ethylene oxide is used to sterilize nasal swabs, the medical industry commonly uses the gas to sanitize medical devices. Ethylene oxide can cause cancer in large amounts, but experts say the swabs contain only trace amounts of the substance, if any.

Detwiler proposed that instead of the swabs, she could receive weekly saliva testing that would allow her to continue to work both in-person and remotely. Officials at the hospital, now called Adventist Health Columbia Gorge, refused, pointing out that test results took between 24 and 36 hours to receive and Detwiller might need to appear for work in person the same day that she received the test.

Hospital officials also noted that Detwiler had received “increased complaints and dissatisfaction” with her remote work. They offered her a choice: be assigned to a new role or agree to the nasal swabs. When Detwiler did neither, the hospital fired her in December 2021.

The following year, Detwiler sued the hospital in U.S. District Court for religious discrimination under Title VII of the Civil Rights Act and Oregon’s parallel law, both of which bar employers from discriminating against individuals based on their religion. (Detwiler’s attorney, Ray Hacke, is a WORLD correspondent and was not involved in this report.)

In 2023, the District Court dismissed her case for not having a valid religious discrimination claim, and last week’s 2-1 ruling affirmed that decision.

“Ultimately, Detwiler’s objection to testing is grounded in the secular belief that the nasal swabs in antigen tests are carcinogenic,” Chief District Judge Richard Seeborg wrote in the 40-page ruling. “She failed to plead facts demonstrating her belief in the harmfulness of the swabs was related to her Christian faith.”

Judge Seeborg wrote that because Detwiler linked her “personal, medical judgment” to her beliefs via “prayer alone,” she did not provide a valid reason for religious accommodation. Detwiler should have shown a more significant connection between her faith and the accommodation she asked for, Seeborg said.

“Detwiler labels a personal judgment based on science as a direct product of her general religious tenet,” Seeborg stated. “Invocations of broad, religious tenets cannot, on their own, convert a secular preference into a religious conviction.”

Seeborg added that if Detwiler’s claim went forward, it would “open the door to unlimited religious discrimination claims.”

Dissenting, Judge Lawrence VanDyke said that the majority’s ruling allows judges to “divine what is ‘really doing the work’ in someone’s sincere religious objection.”

“The majority’s approach requires the impossible—we are judges, not theologians or philosophers,” VanDyke said. “It should be clear that such a test is just a pathway for right-thinking judges to decide which religious claims merit protection.”

VanDyke noted that science often shapes a person’s religious views. For instance, Christian views on abortion stem from both Scripture and a scientific understanding of a baby’s development, he said. VanDyke also said that Detwiler plausibly connected her testing objections to her faith, which is all that is required at the pleading stage.

Christian Edmonds, an assistant professor of law at Regent University, called it “odd” that the 9th Circuit weighed the sincerity of Detwiler’s beliefs so early on in the litigation process. While courts never evaluate the validity of beliefs, they can determine if a belief is genuinely held.

The 9th Circuit’s evaluation of Detwiler’s sincerity is dangerous because it establishes a “weird ‘what’s your secular belief and what’s your religious belief standard,’” said Edmonds.

“There’s no way to adequately parse secularism and religion. It’s too muddy,” he added. “The court shouldn’t be in the business of doing that.”

After a court determines a belief is sincere, it can then deliberate if the religious accommodation substantially burdens employers, explained Mat Staver, founder and chairman of Liberty Counsel. He said the 9th Circuit should have grappled with this question instead of arguing over the secularism of Detwiler’s beliefs.

Science regularly informs beliefs, Staver noted, and that’s true even for people who believe their body is God’s temple. “You have to make decisions on what’s good for your body and what’s bad for your body,” he said. “Do you smoke or do you not smoke? … You’re deciding that based upon science, based upon objective information. But your religious belief informs you as to which path you should choose to take.”

The 9th Circuit’s decision has contributed to a pronounced circuit split on how to evaluate beliefs on COVID-related medical issues, said Matt McReynolds, an attorney at Pacific Justice Institute, which represented Detwiler. He said the 9th Circuit is now the second court of appeals to view beliefs like Detwiler’s as not truly religious, while at least five circuit courts have ruled in favor of similar plaintiffs’ arguments. That split could prompt the Supreme Court to weigh in on the issue.

McReynolds said his client plans to file an appeal asking the full 9th Circuit to hear the case. Rulings like this could touch on issues outside of COVID-19 responses, he said. People with religious views on cigarettes, marijuana, or certain foods could come up against similar challenges in courts.

“In this last pandemic, people were pretty surprised at what employers were mandating,” McReynolds said. “I don’t think we could fully know what the government or employers might try to mandate in future crises.”