N.Y. Court Upholds Repeal of Religious Exemption to Vaccination Requirement

From F.F. v. State, decided yesterday by New York’s intermediate appellate court (third department), in an opinion by Justice Stan Pritzker:

Public Health Law § 2164 requires children from the ages of two months to 18 years to be immunized from certain diseases, including measles, in order to attend any public or private school or child care facility. Initially, the school vaccination law contained two exemptions to this requirement: a medical exemption requiring a physician’s certification that a certain vaccination may be detrimental to a child’s health (hereinafter the medical exemption) and a non-medical exemption that required a statement by the parent or guardian indicating that he or she objected to vaccination on religious grounds ….

In 2000, public health officials declared that measles had been eliminated from the United States. However, after seven cases of measles were reported in Rockland County in the fall of 2018, a nationwide measles outbreak occurred that was largely concentrated in communities in Brooklyn and Rockland County with “precipitously low immunization rates.”

That October, following state regulations, both the State and County Commissioners of Health advised certain schools with reported cases of measles to exclude children who had not been vaccinated pursuant to the religious exemption. In January 2019, companion bills were introduced in the Senate and Assembly that proposed to repeal the religious exemption. On June 13, 2019, the Legislature voted to adopt the bills (hereinafter the repeal), which went into effect immediately ….

Plaintiffs raise a number of constitutional challenges, but primarily contend that the complaint alleged a viable cause of action that the repeal was motivated by active hostility towards religion and thus violated the Free Exercise Clause…. [P]laintiffs allege three reasons in their complaint why the repeal was not a [constitutionally valid] neutral law: first, that the Legislature failed to act during the height of the measles outbreak, asserting that the timing of the legislation undermines the public health concerns it relied upon in adopting the repeal; second, that, despite multiple requests from plaintiffs and others in the six months between the proposal of the bills and their adoption, no public hearings were held on the matter; and third, that the alleged religious animus is reflected in certain statements made by some of the legislators.

First, we do not find that the timing of the repeal reveals political or ideological motivation; rather, the record reflects that the repeal simply worked its way through the basic legislative process and was motivated by a prescient public health concern…. [B]ills, even exigent ones, take time to pass.

Second, we find plaintiffs’ claims regarding the Legislature’s failure to hold hearings to be equally unavailing, given the Legislature’s reliance upon data from the Centers for Disease Control and Prevention and other public health officials, including the amici, which represent various medical experts in the state and have confirmed that the data contemplated by the Legislature was scientifically accurate. Further, the legislative history reveals a spirited floor debate among the legislators, particularly in the Assembly, where many representatives professed both their personal concerns as well as concerns of their constituents regarding the repeal’s impact on religion. The ultimate floor vote reflected the many different views among the lawmakers. Finally, the extensive bill jacket reveals that several hundred letters were received, mostly in opposition to the repeal, which address religious issues.

Third, we reject plaintiffs’ claims that, based upon statements by some of the legislators, the repeal was motivated by religious animus. Significantly, the 11 statements alleged to suggest religious hostility were attributed to only five of the over 200 legislators in office at any given time. Although a suggestion of animosity towards religion is sufficient to state a cause of action under the Free Exercise Clause, that the comments here were made by less than three percent of the Legislature does not, under these circumstances, taint the actions of the whole.

More importantly, many of the statements do not demonstrate religious animus, as plaintiffs suggest, but instead display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based upon non-religious beliefs. Indeed, some legislators were concerned that parents may be hiring consultants to evade the vaccination requirement—suggesting that parents attempted to falsify religious beliefs to receive exempt status. The repeal relieves public school officials from the challenge of distinguishing sincere expressions of religious beliefs from those that may be fabricated.

In fact, one of the quotes cited by plaintiffs refers to so-called “anti-vaxxers,” implying a secular, rather than religious, movement resistant to vaccination. Another comment refers not to religion at all, but to “ideological beliefs.” One of the comments goes so far as to explicitly state that “[r]eligion cannot be involved here,” explaining that the priority must be to “govern by science,” not only with the goal of promoting public health, but also to “lower the stigma that happens” against religious communities in the aftermath of viral outbreaks.

To be sure, there were certain insensitive comments that could be construed as demonstrating religious animus. However, by and large, these comments highlight the tension between public health and socio-religious beliefs—a unique intersection of compelling personal liberties that was to be balanced against the backdrop of a measles outbreak that could be repeated….

Although, at first blush, the repeal of a religious exemption naturally seems to target the First Amendment, such is not the case here. In Roman Catholic Diocese of Brooklyn v Cuomo (2020), the Supreme Court of the United States determined that an executive order that imposed restrictions on attendance at religious services in certain areas in response to the COVID-19 pandemic would likely not be considered neutral and of general applicability and thus must satisfy strict scrutiny. As noted by Justice Kavanaugh in a concurring opinion, the regulation created a favored class of businesses and it thus needed to justify why houses of worship were excluded from that favored class.

By contrast, here, the religious exemption previously created a benefit to the covered class, and now the elimination of the exemption subjects those in the previously covered class to vaccine rules that are generally applicable to the public. In fact, the sole purpose of the repeal is to make the vaccine requirement generally applicable to the public at large in order to achieve herd immunity….

The New York Constitution has been read by New York’s high court as sometimes requiring exemptions even from religion-neutral laws; but rather than requiring “strict scrutiny” of laws that incidentally burden religion, as many states do, the New York constitution only offers a balancing test:

“[W]hen the [s]tate imposes ‘an incidental burden on the right to free exercise of religion’ [a court] must consider the interest advanced by the legislation that imposes the burden, and that ‘the respective interests must be balanced to determine whether the incidental burdening is justified.’” “[S]ubstantial deference is due the Legislature, and … the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom.” Given the Legislature’s substantial interest in protecting the public health, plaintiffs fall short of establishing such a claim.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.