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The Wexler Decision
V. CONSTITUTIONALITY
Ordinarily, in an effort to avoid needless rulings on questions of
constitutional law, a court should dispose of all the other issues a case
presents before turning to a litigant's challenge to the constitutionality
of a statute or ordinance. See Ashwander v. Tennessee Valley Authority,
297 U.S. 288, 341, 56 S.Ct. 466, 480 (1936)(Brandeis, J., concurring). In
the instant litigation, however, this is not possible. The language of §
2164(9) explicitly limits invocation of the religious exemption the
statute provides to persons who are members of a "recognized
religious organization." Neither the Sherr nor Levy families are
members of any recognized religious organization. Therefore, if § 2164(9)
is constitutionally valid as written, neither set of plaintiffs is
entitled to the religious exemption § 2164 provides regardless of any
other factors that may be necessary for plaintiffs otherwise to prevail on
their claims. Accordingly, the Court will now turn to plaintiffs'
constitutionally grounded challenges to the limited applicability of the
religious exemption § 2164(9) contains.
As the Court noted earlier in this opinion, supra pp. 3-4, it has been
settled law for many years that claims of religious freedom must give way
in the face of the compelling interest of society in fighting the spread
of contagious diseases through mandatory inoculation programs. In enacting
§ 2164, the New York State legislature apparently determined that
subjecting all individuals to compulsory immunizations without exception
does not give due deference to the religiously-based opposition to
vaccinations that certain persons maintain and therefore provided for the
religious exemption set forth in § 2164(9). The legislature's creation of
a statutory exception that goes beyond what the Supreme Court has declared
the First Amendment to require undoubtedly reflects a highly praiseworthy
urge to minimize imposition of the state's inoculation program upon
adherents of religious belief systems whose teachings are at odds with the
concept and methods of immunization utilized by the state. Nevertheless,
the exception New York has created obviously cannot be such that it itself
violates the constitutional rights of certain of the state's citizens.
In the period since the Second World War, the Supreme Court has
addressed a multitude of challenges brought under the "establishment
clause" of the First Amendment dealing with such hotly contested and
diverse issues as the reimbursement to parents of the transportation costs
of sending their children to parochial schools, Everson v. Board of
Education of Ewing Township, 330 U.S. 1, 67 S.Ct. 504 (1947), prayer
in the public schools, Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261
(1962), property and tax exemptions for religious organizations, Walz
v. Tax Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409
(1970), and a law prohibiting the teaching of evolution in public schools
unless "creation science" is also taught, Edwards v.
Aguillard, ___ U.S. ___, 107 S.Ct. 2573 (1987). No lengthy citation or
analysis of case law construing the establishment clause, however, is
necessary for one to see that § 2164(9)'s limitation of a religious
exemption from vaccination to those who are members of recognized
religious organizations is blatantly violative of that First Amendment
guarantee.
In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), the
Supreme Court first synthesized the three-pronged test that the Court now
consistently utilizes as the standard by which the constitutionality of
laws challenged under the establishment clause must be measured. 4/
First, the legislature must have had a secular purpose for adopting the
enactment in question. Second, the primary effect of the law to be
scrutinized must be one that neither advances nor inhibits religion.
Third, the statute must not result in an excessive entanglement of
government with religion.
The clause of § 2164(9) at issue in this litigation runs afoul of at
least two of the three elements of the Lemon test. Section 2164 as
a whole obviously is designed to achieve the purely secular purpose of
protecting New York's school children from the outbreak of communicable
diseases. Subsection 9 of § 2164, on the other hand, seems to be designed
specifically to advance the interests of individuals who oppose
vaccination on theological grounds. Such treatment of religious interests
can justifiably be seen as a reasonable accommodation of the
considerations more directly addressed by the free exercise clause of the
First Amendment, see, e.g., Yoder, 406 U.S. 205, 92 S.Ct. 1526; Sherbert,
374 U.S. 398, 83 S.Ct. 1790, but, as the Court will discuss momentarily,
it is far more questionable whether free exercise values can legitimate
the distinctions between different categories of the religious public that
§ 2164(9)'s limitation of its coverage to "bona fide members of a
recognized religious organization" entails. Defendants assert that
the legislature may have had a number of secular purposes for adopting §
2164(9)'s limiting language. The restriction, for instance, may have been
intended as a guard against claims of exemption on the basis of personal
moral scruples or unsupported fear of vaccinations, as a means of allowing
certain exemptions without risking lessened effectiveness of the state's
inoculation program due to the granting of a large number of exemptions,
or perhaps because of the difficulties inherent in devising a legally
workable definition of religion. In any event, given the constitutional
infirmity of § 2164(9)'s limitation under the other two prongs of the Lemon
test, the Court need not definitively resolve whether the portion of §
2164 in dispute possesses a secular purpose sufficient to withstand
plaintiffs' attack upon it.
The primary effect of § 2164(9)'s limiting clause is manifestly the
inhibiting of the religious practices of those individuals who oppose
vaccination of their children on religious grounds but are not actually
members of a religious organization that the state recognizes. While bona
fide members of such religious groups may maintain a mode of life for
their children in accordance with their religious precepts, other persons
who oppose inoculation on religious grounds confront the dilemma of having
to flout the dictates of their beliefs if they wish to educate their
children and conform to the requirements of state law. As the Supreme
Court remarked in Everson, 330 U.S. at 15, 67 S.Ct. at 511,
"The establishment of religion clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, and all religions,
or prefer one religion over another."
Also, § 2164(9)'s restriction of the exception to "recognized
religious organizations" clearly requires that the government involve
itself in religious matters to an inordinate degree. The Supreme Court has
frowned upon the government becoming too involved in matters so seemingly
mundane as property disputes if they necessitate that the state delve too
deeply into questions of religious dogma. See, e.g., Jones v. Wolf,
443 U.S. 595, 99 S.Ct. 3020 (1979); Presbyterian Church in the United
States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393
U.S. 440, 89 S.Ct. 601 (1969); Kreschik v. St. Nicholas Cathedral,
363 U.S. 190, 80 S.Ct. 1037 (1960); Kedroff v. St. Nicholas Church of
Russian Orthodox Church in North America, 344 U.S. 94, 73 S.Ct. 143
(1952). Here, New York has conditioned the conferring of a statutorily
created exemption on membership in a religious denomination upon which the
state, if the attempted witticism can be forgiven, has bestowed a blessing
of governmental approval. Subsection 9 of § 2164 makes available to
members of certain religious organizations to which the state has given
some sort of official recognition a statutory benefit for which other
individuals who may belong to either an unrecognized religious group or
possess their own personal religious beliefs are not eligible. The
establishment clause surely cannot mean much if a preferential restriction
such as that contained in § 2164(9) can pass constitutional muster.
Section 2164(9)'s restriction of the religious exception to New York's
compulsory vaccination requirement for school children also must fall when
viewed in light of the commands of the free exercise clause of the First
Amendment. The Supreme Court formulated its modern approach to free
exercise claims in its 1963 Sherbert decision. In holding that
South Carolina could not deny unemployment benefits to a Seventh Day
Adventist who refused to work on Saturdays because of her religious
beliefs, the Court employed what is essentially a four step inquiry in
which it must be determined if (1) a religious belief or practice is
involved; (2) such a belief or practice is burdened by the governmental
action in question, (3) a compelling state interest justifies such an
infringement on First Amendment rights; and (4) even if such a compelling
state interest is present, is there a less restrictive alternative that
might allow the government to achieve its purposes without intruding upon
religious liberty.
A claim by an individual of entitlement to a religiously-based
exclusion from § 2164's inoculation program even though he is not
actually a member of a "recognized religious organization"
clearly involves a religious belief or practice, and the ability of such a
person to structure his family life in a manner that conforms with the
religious dictates to which he subscribes are surely burdened by New
York's requirement that his children be vaccinated. Furthermore, while the
courts have left no doubt that society's compelling interest in preventing
disease must override any personal opposition to immunization that some
citizens may possess, defendants have not advanced, nor can the Court on
its own conceive of, any compelling societal interest that might justify
the burden placed upon the free religious exercise of certain individuals
while other persons remain free to avoid subjecting their children to a
religiously objectionable medical technique merely because they may belong
to a particular religious organization to which the state has given a
stamp of approval. While the state may be quite genuinely concerned with
limiting improper evasion of immunization, minimizing the total number of
people exempt from the mandatory vaccination program, or devising a
legally and logically coherent definition of religion, there surely exist
less restrictive alternative means of achieving the state's aims than the
blatantly discriminatory restriction of § 2164(9)'s religious exemption
that the state has devised. The Supreme Court has declared, "The
essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion." Yoder,
406 U.S. at 215, 92 S.Ct. at 1533. Defendants can point to no such
interest that might legitimate the limitations that § 2164(9) places upon
the religious freedom of individuals who are not members of a
"recognized religious organization."
The Court's holding regarding the constitutionality of § 2164(9)'s
limitation of the religious exemption it creates is supported by the
conclusions of the New York state courts which have been faced with claims
of entitlement to religious exemption from immunization similar to those
the Sherrs and Levys now make. Meier v. Besser ruled § 2164(9)'s
exemption to be applicable to a family which held beliefs that paralleled
to a great extent the teachings of the Christian Scientist Church but did
not actually belong to that religious denomination. The court stated:
It was obviously not the intent of the Legislature to force
individuals to join a religious organization in order to practice
their religious tenets freely, but rather to prevent individuals from
avoiding this health requirement enacted for the general welfare of
society, merely because they oppose such medical procedures on the
basis of personal
moral scruples or by reason of unsupported personal fears. No doubt
the language of [§ 2164(9)] was drafted to safeguard against the
claim of exemption by this latter category of persons
. . .
Clearly, the child of a parent who is a bona fide Christian
Scientist may be enrolled and received into school under the statutory
exemption. To deny the exemption to a child whose parent
conscientiously and honestly believes and practices the teachings and
tenets of the Christian Science faith, notwithstanding lack of formal
membership in the Church, would require a holding that the exemption
provision of the statute is unconstitutional.
341 N.Y.S.2d at 413 (citations omitted). The Maria R. court
dismissed a child neglect petition against parents who failed to have
their child vaccinated because of their religious beliefs, holding that
"[f]ormal church membership is not a requirement as long as the
family honestly believes and practices the tenets of a religious
group." 366 N.Y.S.2d at 311. Brown granted a litigant's
application for a preliminary injunction allowing his daughter to attend
school even though the plaintiff did not demonstrate any membership in a
recognized religious organization. Additionally, the only relevant federal
court decision of which this Court is aware also held the scope of §
2164(9)'s religious exemption to be wider than that which the actual
language of the statute seems to establish. In Allanson v. Clinton
Central School District, No. CV 84-174, slip op. at 5, (N.D.N.Y. May
10, 1984), then-District Judge Roger Miner, citing Brown, adopted a
construction of the provision that eliminated the requirement of
membership in a religious organization.
Accordingly, the Court holds that § 2164(9)'s restriction of a
religious exemption from immunization to children whose parents or
guardians are "bona fide members of a recognized religious
organization" whose doctrines oppose such vaccinations is violative
of both the establishment and free exercise clauses of the First Amendment
to the United States Constitution. Plaintiffs in the litigation at bar,
therefore, may properly claim entitlement to the statutory exception from
inoculation of their children so long as they meet the other elements
necessary to qualify for such an exemption. It is to these other
requisites that the Court will now turn.5/
4/ In Edwards, ___U.S. at ___n.4, 107 S.Ct. 2577 n.4,
one of the Supreme Court's establishment clause decisions this past term,
Justice Brennan stated for the Court:
The Lemon test has been applied in all cases since its adoption in
1971, except in Marsh v. Chambers, 463 U.S. 783 (1983), where
the Court held that the Nebraska legislature's practice of opening a
session with a
prayer by a chaplain paid by the State did not violate the
Establishment Clause. The Court based its conclusion in that case on
the historical acceptance of the practice. Such a historical approach
is not useful in
determining the proper roles of church and state in public schools,
since free public education was virtually nonexistent at the time the
Constitution was adopted (citation omitted).
State mandated inoculations against disease were similarly not in
existence when the First Amendment was drafted.
5/ Given the Court's holding that the restriction of
the religious exemption § 2164(9) provides to "bona fide members of
a recognized religious organization" violates the establishment and
free exercise clauses of the First Amendment, the Court need not address
plaintiffs' challenges to the limitation under the equal protection clause
of the Fourteenth Amendment.
VI. "RELIGIOUS" NATURE OF PLAINTIFFS' BELIEFS - Wexler Decision
The Wexler Decision - Menu
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