Fact check: Civil Rights Act of 1964 does not create religion-based exemption from mask mandates

Devon Link

The claim: The Civil Rights Act of 1964 allows religious exemptions to mask mandates

After several failed efforts to use the ADA, HIPAA and the Fourth and Fifth Amendments to fight mask mandates, those opposed to masks are adding a new tool to their arsenal: the Civil Rights Act of 1964.

YouTuber Nathan Roberts explored the effectiveness of employing this law to argue for a religious exemption from mask mandates in a video July 22.

"Anything that's open to the public for public accommodation has got to abide by the Civil Rights Act of 1964, not to discriminate, based on many different things, including religion," Roberts said. "Religion meaning that if you, or your religious conviction, believe that you shouldn't be wearing a mask, that's all you have to have."

Roberts tested his argument in a Georgia Kroger store. An employee asked Roberts to think of other customers and obey the mask policy before her manager told Roberts the store did not discriminate.

"You don't know the law, so enjoy your shopping," Roberts told a shopper.

In the video's description, Roberts urged viewers to employ religious exemptions and shared links to forms that customers and employees can use to report stores to the Civil Rights Division of the Department of Justice.

Facebook community Open Your Eyes People shared Roberts' video on July 23, where it received more than 15,000 comments and 30,000 reactions.

Roberts, who identifies himself as a journalist, has previously been criticized for his promotion of the flat Earth conspiracy theory. 

Fact check:What's true and what's false about face masks?

When USA TODAY asked Roberts where he'd learned about religious mask exemptions, he shared an article written about his YouTube video as his source.

Website provides religious exemption cards 

A website called The Healthy American is using the same argument to sell religious mask exemption cards.

“Religious Exemption: The bearer of this card is LEGALLY EXEMPT from wearing any face coverings or being subjected to temperature taking, viral testing or vaccination, as protected by U.S. Federal Law, Title II of the Civil Rights Act, U.S. Code 42 ss 2000 (a),” reads the card, which @missioninactionpodcast shared on Instagram July 25.

Through a quick visit to the site, individuals can purchase an identical card for a $12 donation. The exemption notice claims to be valid through Dec. 31, 2021, and is signed by pastoral representative David Hall.

Anti-mask protesters stand outside City Hall while Mayor Eric Genrich announced his plan to implement an indoor face-mask requirement throughout Green Bay during a press conference on July 20, 2020, in Green Bay, Wis.

“We need all hands on deck to fight this growing tyranny sweeping across our country. Spread the word, learn the laws, get active in your communities and educate them,” @missioninactionpodcast captioned the photo.

Owner of the Healthy American Peggy Hall told USA TODAY she created the cards in July after "thousands of requests from people who have been suffering with having their civil rights violated."

"As an educator, I help others understand the applicable laws, including the fact that no health order, ordinance, executive order or state of emergency suspends civil rights law nor does it negate the protection of religious rights, including the free expression of religious beliefs, which for many include not covering the face or engaging in medical interventions such as viral testing or vaccinations," Hall wrote in an email.

But legal experts say the Civil Rights Act of 1964 does not provide a basis for a religious exemption from mask-wearing requirements.

Neither Open Your Eyes Peoplenor @missioninactionpodcast has returned USA TODAY’s request for comment.

Fact check:No mask? You can ask why — it isn’t against HIPAA or the Fourth or Fifth Amendments

What the Civil Rights Act of 1964 says

After years of advocacy from civil rights leaders, the Civil Rights Act was signed by President Lyndon B. Johnson on July 2, 1964, to prohibit discrimination in public places and outlaw segregation.

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the grounds of race, color, religion, or natural origin,” states Title II of the law, codified at 42 U.S. Code §2000a.

The Civil Rights Act prohibits acts of racial discrimination that the 14th and 15th Amendments failed to address. 

Up to 250,000 people filled the Mall in Washington for a march for justice and equality in August 1963, the largest march of its kind to that point. And they heard Rev. Martin Luther King Jr., made his legendary "I Have a Dream" speech on the steps of the Lincoln Memorial that has become the signature moment of the civil rights movement. A year later, President Lyndon B. Johnson would sign the Civil Rights Act of 1964.

Mask mandates vary by state and company policies

As of August 4, 34 states, the District of Columbia and Puerto Rico mandated masks be worn in public places. Many states allow for exemptions for children, those with disabilities, those who are medically incapable of wearing a mask and those engaged in specific activities like exercise, eating or drinking.

USA TODAY has reviewed all 36 policies and has not found any explicitly detailed, religious-based exemptions for individuals entering stores and other public places. Some states do allow mask exemptions for individuals in places of worship.

President Donald Trump has said he will leave the decision about mask mandates to states. 

President Donald Trump wears a mask as he visits Walter Reed National Military Medical Center in Bethesda, Md. on July 11, 2020.

In a July 19 interview with Fox News, Trump said he would not consider a federal mask mandate because he wanted people to “have certain freedoms.”

“Everybody was saying don’t wear a mask, all of a sudden everybody’s gotta wear a mask and, as you know, masks cause problems too. With that being said, I’m a believer in masks. I think masks are good, but I leave it up to the governors,” he said.

Many local leaders in states without mask mandates have adopted their own mask requirements. Palm Beach County, Florida, made headlines when leaders enacted a mask mandate that allowed for religious exemptions.

In response, Palm Beach Post columnist Frank Cerabino searched for a religion that objects to mask-wearing with no avail. Cerabino wrote that this policy allowed anyone to claim religious exception to mask mandates, regardless of the threat to public safety.

Some stores like Walmart have included religious exemptions in the company's mask policy.

Fact check:ADA does not provide blanket exemption from face mask requirements

Legal experts say 1964 Civil Rights Act doesn't apply

Harvard Law School professor Noah Feldman, who specializes in constitutional studies, with an emphasis on law and religion, said the Civil Rights Act of 1964 does not grant individuals religious mask exemptions.

“The government can’t discriminate against you on the basis of your religion, but it doesn’t appear to be discriminating against you here by telling you to wear a mask,” Feldman told USA TODAY. “Contrary to what this card is saying, federal law cannot get you an exemption from a neutral, generally applicable state law."

Constitutional law expert Harvard Law School professor Noah Feldman testifies during the House Judiciary Committee holds the first formal impeachment inquiry of President Donald Trump to explore how the Constitution applies to allegations of misconduct on Dec. 4, 2019.

Cornell Law School professor Nelson Tebbe, who teaches constitutional law and religious freedom, also said that the Civil Rights Act of 1964 does not apply to religious mask exemptions.

“Title II protects against discrimination on the basis of religion (and other protected traits) in public accommodations. But requiring all customers to wear a mask is not discriminatory — it’s neutral," Tebbe wrote in an email to USA TODAY. "So I’d say this claim is bogus."

Burt Neuborne, New York University Law professor and founding legal director of the Brennan Center for Justice, agreed in an email to USA TODAY.

"Mask mandates, if justified by public health concerns and applied in a non-discriminatory manner, do not violate religious liberty. Period. It's not a close question," wrote Neuborne.

Fact check:Document claiming to show CDC guidance about various types of masks is a fake

In May, the Supreme Court ruled that claims of religious liberty do not trump public health concerns after churches in California and Illinois sued battling limits on worship services ordered by the states because of the coronavirus pandemic. And in July, the high court ruled that Nevada can impose tighter virus-related restrictions on churches than on casinos. Although the cases focused on social distancing measures, Neuborne said the same logic would apply to arguments about masks.

"The Supreme Court has upheld conditioning access to public school on vaccinations and has repeatedly held that exercises of religious liberty may not endanger others," wrote Neuborne. "I believe that all nine Justices would agree on the existing law." 

Experts question validity of card sale

 And if there were a religious exemption to mask mandates recognized by the law, Feldman said the purchase of a card like the one The Healthy American is selling would not be necessary to exercise such a right.

“If you really have this right, you wouldn’t need the card for it and if you don’t have this right the card can’t give it to you,” Feldman said.

"Selling religious liberty exemptions is a scam," Neuborne wrote. "It’s a flat out fraud."

Our rating: False

Legal experts say the Civil Rights Act of 1964 does not allow individuals to claim religious exemption from mask mandates. The law protects individuals from discrimination in public places, but since mask mandates are neutral and generally applicable, they are not discriminatory and, hence, the law has no application in this situation. We rate this claim FALSE because it is not supported by our research.

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