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Tuesday, July 10, 2018

The Court’s Religious Jurisprudence and Vaccines


The Court’s Religious Jurisprudence and Vaccines

In my last post, I pointed out that for over a century, for good reasons, courts have upheld school immunization mandates, including in the face of challenges based on the First Amendment’s free exercise clause. Two federal Court of Appeals cases in 2011and 2015reaffirmed this. The courts’ approach is based in part on powerful dictum in Prince v. Massachusetts, and in part on Employment Division v. Smith. All the courts upholding California’s new school vaccine legislation, SB277, echoed that view.

An important qualification is that states that do provide an exemption face constitutional limits that seemed designed to make the exemption hard to police and easy to abuse (though each by itself can be justified). States cannot require a clergy lettersupporting an exemption claim, because that discriminates in favor of organized religion. States cannot refuse an exemptionto a member of a religion that supports vaccines – for example, a Catholic or Jew – on the basis of that alone, if she claims a personal religious objection to vaccines. And when state law, itself, does not require evidence of sincerity, several courts have ruled that officials cannot add that requirement. State officials must accept any claim of religious objection at face value.

This makes a religious exemption very hard to monitor. Most of the users of this exemption are likely refusing vaccines for non-religious reasons. Having a religious exemption – when courts have consistently found it is not required – is likely a poor policy choice.  

One question is whether the recent Supreme Court jurisprudence will change the current judicial consensus that a religious exemption is not required in vaccine mandates. This is a narrow application of these decisions (and far from inclusive, because I want this post reasonably short); but this exercise can highlight some potential risks of the court’s recent religious jurisprudence even the supporting justices seem not to desire.  The current Supreme Court majority has been fairly cautious in its handling of the religious cases. But we are facing a potentially different composition of the court – and who knows? (For more detailed discussions of the religious jurisprudence on this blog, seehere,here,hereand here, for example. For a recent discussion of a paper on appointments on this blog, see here).

In Burwell v. Hobby Lobby, HHS actually raised a concern about negative effect on vaccines coverage by employers, and Justice Ginsburg’s dissent raised that as well. However, since the case focused on a Religious Freedom Restoration Act (RFRA) question and not a first amendment question, it did not directly address school immunization mandates. The majority referred to Smith as the standard for applying the First Amendment, and took pains to distinguish its discussion of RFRA from that context. However, the majority’s extremely narrow reading of what is an acceptable least restrictive means to address a religious issue can affect the way federal district cases and state courts influenced by the Supreme Court approach immunization mandates if they apply strict scrutiny. The majority may have seen this as unlikely, but it’s a possible outcome. That said, two courts in California addressing this after Hobby Lobby – a federal district court in Whitlowand the Second Appellate District’s  opinion inBrown– found that immunization mandates meet the least restrictive means test to achieve the compelling interest of disease prevention, each on a different basis. Whitlowfound that since the goal of the law in question was “total immunization”, any non-medical exemption would not achieve it, and the law was the least restrictive means to it. The Court of Appeal in Brown v. Smith, on the other hand, found that immunization mandates are the “Gold Standard” for preventing diseases.


Masterpiece Cakeshop v. Colorado Civil Right Commissionwas also carefully and narrowly decided, based on a finding that the Colorado Commission in question was hostile to the baker’s religious objections. It did not overturn Smith, and did not touch on immunization mandates. However, it could be used by opponents in the right circumstances to try and claim hostility to their religious claims. For example, in a case attacking Michigan’s requirement that people seeking exemptions have a discussion with the Department of Health’s personnel – with a plaintiff with religious objections to vaccines -  the Sixth Circuit’s rejectionof her claim was in part based on the lack of a constitutional right to an exemption. If plaintiff claimed special hostility to her religious objections, and it wasn’t unlikely she would, Masterpiece Cakeshopcould be used in support.

In short, so far, the Supreme Court’s jurisprudence on religion does not undermine the existing jurisprudence upholding school immunization mandates without a religious exemption. However, it creates potential arguments that plaintiffs can use to challenge the mandates in court. More than that, the growing religious jurisprudence – which should include the recent Becerracase overturning California’s law requiring pregnancy centers to provide information about abortion services – suggests a possible change in the Supreme Court’s general approach to religious arguments. This, in turn, could increase the protection of religious claims in many contexts, including school vaccination mandates, potentially putting the public health of communities at substantial risk.

Posted by Dorit Reiss on July 10, 2018 at 11:57 AM in Constitutional thoughts, Religion | Permalink


"Religions are all based on mere superstition."

Religions are based on various things.

Posted by: Joe | Jul 12, 2018 2:39:17 PM

Dorit , I thought that you refer to the whole sentiment formed by various cases shown recently . However , in a way or other , a case shall or should reach the court finally one may presume , and in court , it is hard to see , how the strict issue , stemming from vaccination ( vaccination solely ) can be overcome or reversed in favor of religious issues or ground ( one needs to be hell of a cunning lawyer for it ) . One may presume indeed , that officials in the public service may manifest implicit hostility , but judges , it is hard to see how. But , you do agree with it , it seems so at least ( or simply as you claim , you didn't refer to judges simply .Although , at the end of the post , you have stated : " potentially putting the public health of communities at substantial risk " but how I was wondering if binding jurisprudence is made by judges simply ).


Posted by: El roam | Jul 10, 2018 2:53:25 PM

A. In Brown v. Smith not all plaintiffs claimed religious objections, but because a few did, the court addressed the issue.

B. The ones found to have shown hostility in Masterpiece Cakeshop were, as you said, the committee members. My comparison to the Michigan was to suggest that a person could claim the Department of Health officials showed hostility. It's not about the judges. It's about whether the Officials in the health department who conducted the educational sessions showed hostility to religious objections. It's easy to read the complainant in Nikolao as claiming that.

Posted by: Dorit Reiss | Jul 10, 2018 2:29:00 PM

Dorit , in Brown V. Smith , one should notice , that the religious issue , didn't touch all plaintiffs there . I quote :

" The other three plaintiffs allege nothing about any religious basis for their objection to vaccination . A belief that is " philosophical and personal rather than religious ….does not rise to the demands of the Religion clauses "

But concerning your argument , that Masterpiece can be used further in support for opposing vaccination , I don't see really right now how exactly . In Masterpiece , it could be alleged , and proven prima facie , that the committee members , manifested apparently , hostility towards the owner of the bakery . But it is hard to see , how the judges manifested the slightest hostility . The issue has far greater more consensus. Hostility towards religion , can't be proven here , but , concrete discretion , here I quote :

" 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 . "

End of quotation :

Can it be said that , hostility is manifested so ?? Hard to buy it !! It looks like the issue of vaccination , and public health occupied their mind , over any disrespect to religion.


Posted by: El roam | Jul 10, 2018 2:23:57 PM

Note that all states have medical exemptions. When there is a science-based reason that a child not be vaccinated, that child can and should be medically exempt.

One important reason for strong school mandates is to protect those vulnerable children who cannot be safely vaccinated and rely on herd immunity for their safety.

That is somewhat tangential to the religious question, though.

Posted by: Dorit Reiss | Jul 10, 2018 12:27:53 PM

Religions are all based on mere superstition. We face the ironic situation where vaccination can be refused based on superstition but not on science and reason.

Posted by: jimbino | Jul 10, 2018 12:25:04 PM

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