The Volokh Conspiracy
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Court OK's N.Y. Repeal of Religious Exemptions from Vaccination Requirement
An excerpt from the Second Circuit's long (and, I think, generally correct) decision yesterday in Miller v. McDonald (Judges José Cabranes, Richard Wesley, and Eunice Lee):
In 2019, New York repealed the religious beliefs exemption to its school immunization law. The law now applies to all students attending public, private, or parochial schools, except those who qualify for the law's medical exemption. Two parents of Amish students, three Amish "community schools," and an elected representative of all Amish schools in New York sued New York officials … claiming that the school immunization law infringes on their free exercise rights ….
New York maintained [health and religious] exemptions until 2019. During 2018 and 2019, the United States experienced the worst measles outbreak in over twenty-five years; New York was the epicenter. Most cases occurred in communities with clusters of unvaccinated individuals. Following that outbreak, the legislature repealed the religious beliefs exemption while retaining the medical exemption….
A neutral and generally applicable law's burden on religion is constitutional if the law passes the relatively low hurdle of rational basis review—that the state has chosen a means for addressing a legitimate government interest rationally related to achieving that goal. If a law is not neutral or generally applicable, however, the government must demonstrate that the law satisfies strict scrutiny, which requires the law "to further 'interests of the highest order' by means 'narrowly tailored in pursuit of those interests.'"
As the Supreme Court explained in Employment Division v. Smith (1990), requiring all laws that burden religion to satisfy the demands of strict scrutiny "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," including "compulsory vaccination laws." "[A]dopting such a system would be courting anarchy." … This Court has repeatedly upheld neutral and generally applicable immunization laws in the face of free exercise challenges.
Plaintiffs contend that § 2164's text and the statements of several legislators reveal a discriminatory motive…. A state "fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature." … New York Public Health Law § 2164 is neutral on its face. It does not target or affirmatively prohibit religious practices. The law simply applies New York's school immunization requirements to all schoolchildren who do not qualify for the law's medical exemption. Moreover, the act of repealing the religious exemption did not "in and of itself transmute" this otherwise neutral law into one "that targets religious beliefs."
Nor does the legislative history reveal an anti-religious bias. Plaintiffs argue that statements made by a small number of legislators, some of whom sponsored the amendments in their respective houses, evidence religious animus. But Plaintiffs have not alleged facts to suggest that those remarks infected "a sizeable portion" of legislators' votes or otherwise influenced the law's enactment. To the contrary, the legislative record is full of respectful statements in support of religious freedoms. The final vote passing the legislation—84 to 61 in the Assembly and 36 to 26 in the Senate—further reflects the "spirited floor debate among the legislators" and their thoughtful consideration of the interests at stake. These circumstances differ from where discriminatory intent can be ascribed to a small group of decision-making officials. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court held that statements made by several of seven commissioners were hostile to religion and therefore "cast doubt on the fairness and impartiality" of the administrative enforcement proceeding, particularly given that no one disavowed the substance of the statements. The remarks were made "by an adjudicatory body deciding a particular case"—"a very different context" from "statements made by lawmakers." …
A law is not generally applicable in two circumstances: (1) when the law treats comparable secular conduct more favorably than religious activity, or (2) when "it 'invites' the government to consider the particular reasons for a person's conduct by providing 'a mechanism for individualized exemptions.'" …
Plaintiffs contend that exempting students for medical reasons treats comparable secular conduct more favorably than religious beliefs…. [But s]ecular conduct is not always "comparable" to religious conduct. It is "comparable" when the secular conduct poses risks "at least as harmful to the legitimate government interests" justifying the law as posed by the religious conduct incidentally burdened by the law.
New York's interest in passing § 2164 was in "protect[ing] the health of all New Yorkers, particularly our children," from "disease outbreaks" by "sustaining a high vaccination rate among school children." … Repealing the religious exemption decreases "to the greatest extent medically possible" the number of unvaccinated students and thus the risk of disease; maintaining the medical exemption allows "the small proportion of students" who medically "cannot be vaccinated" to avoid the health consequences that "taking a particular vaccine would inflict." Exempting religious objectors, however, detracts from that interest. Religious exemptions increase "the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike." …
A law also is not generally applicable when it extends broad discretion to government officials to grant exemptions based on their assessment of "which reasons for not complying" with the law "are worthy of solicitude." … New York's medical exemption fits neatly within the contours of other exemptions to immunization that we have held to be constitutionally permissible. The statutory exemption is "mandatory," and applies to an "objectively defined" group. In addition, the authority conferred to physicians is not discretionary; a physician's use of her professional medical judgment is limited by the statute and regulations. The same is true of the authority conferred upon school officials. Even though school officials have the authority to conclude that the documents submitted in support of a medical exemption contain sufficient (or insufficient) information, they do not have "discretion to approve or deny exemptions on a case-by-case basis" for any reason.
Practically speaking, Plaintiffs argue that school officials have "the power to press the red or green light on each medical exemption request." For example, they allege that up to 50% of students had medical exemptions in one school while zero students had a medical exemption in another school in the same community and that medical exemptions are granted inconsistently year to year. Those allegations do not change our conclusion. Without information about a student population and its medical needs, there is no way to infer a discretionary element from the school officials' acceptance of medical exemption requests. Moreover, for the reasons explained, the statute does not create a system in which school officials are given improper discretion to evaluate the reasons given for a requested medical exemption….
The Supreme Court has implied that a neutral and generally applicable law may nonetheless be subject to heightened scrutiny if a free exercise claim is brought "in conjunction with other constitutional protections." This Court has characterized that language describing so-called "hybrid rights claims" as dicta, and has declined to apply a heightened standard of review.
Plaintiffs agree with the district court that hybrid rights claims are generally not viewed as viable in this Circuit. Yet, they contend their claims should not have been dismissed because they are essentially the same as the claims in Wisconsin v. Yoder (1972). There, the Supreme Court invalidated a Wisconsin law under the Free Exercise Clause that mandated conventional school attendance until the age of sixteen. Members of the Amish faith challenged the law, seeking to educate their fourteen-and fifteen-year-olds through their "long-established program of informal vocational education." The Supreme Court held that Wisconsin failed to demonstrate an "interest of sufficient magnitude" to overcome "the interests of parenthood" when "combined with a free exercise claim of the nature revealed by this record."
We have observed that the Supreme Court in Yoder "took pains explicitly to limit its holding." The trial record demonstrated that the state law effected a "severe" and "inescapable" burden on the parents' ability to pass onto their children the Amish religion and "the fundamental mode of life mandated by the Amish religion." Compulsory high school attendance would take Amish children away "from their community, physically and emotionally, during the crucial and formative adolescent period of life." That removal would "substantially interfer[e] with the religious development of the Amish child and his integration into the way of life of the Amish faith community." One expert opined that compulsory high school attendance would "result in the destruction of the Old Order Amish church community as it exists in the United States today." Wisconsin also failed to offer any evidence to support its purported interests in mandating, at most, two additional years of high school attendance.
Plaintiffs' objection to vaccines is premised on the same "fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence." They claim that the school immunization law mandates two impossible options: inject their children with vaccines, forcing conduct against their religious beliefs, or forego educating their children in a group setting, requiring them to sacrifice a central religious practice. True, Plaintiffs have shown that § 2164 burdens their religious beliefs and practices; but those burdens are not equivalent to the existential threat the Amish faced in Yoder. Unlike in Yoder, compliance with § 2164 would not forcibly remove Amish children from their community at the expense of the Amish faith or the Amish way of life.
Moreover, Yoder's holding is limited by the state's interest in protecting public health. In fact, in Yoder, the Supreme Court specifically distinguished the facts from Prince v. Massachusetts (1944), where the Supreme Court upheld a child labor law against a parent's free exercise challenge. The Supreme Court in Prince found support from the apparently uncontroversial proposition that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds" because the "right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." In Yoder, the Supreme Court acknowledged that non-compliance with the school attendance law would not result in any "harm to the physical or mental health of the child or to the public safety, peace, order, or welfare." Given the State's interest here—protecting New Yorkers, particularly schoolchildren, from disease—an analogy to Yoder's facts is unconvincing….
Mark S. Grube represents the state.
