The Court has found that one of the sets of plaintiffs in these consolidated cases is entitled to a religiously-based exemption to vaccination of their child under § 2164(9). The Court will now turn to the proper form and scope of the relief it should order in this litigation.

The Court has ruled that the denial to the Levys of a religiously-based exemption from the otherwise compulsory vaccination of Sandra Jasmine Levy violates the family's constitutional rights. Section 2164(9)'s restriction of the availability of such an exemption to "bona fide members of a recognized religious organization" is at odds with the command of the establishment clause and inhibits the free exercise of the Levys' rights to live their lives in accordance with their sincerely held religious principles. The Court, therefore, holds that the Levys are entitled to the religious exemption from immunization that they seek.

The Court is of the opinion, however, that an order merely granting these individual plaintiffs relief with respect to themselves would be insufficient. In their pleadings, the Levys ask the Court not only that it find them to fall within the scope of § 2164(9)'s exemption, but also that it declare § 2164(9)'s limiting language to be unconstitutional. As the Court has discussed above, supra § V, it is in full agreement with plaintiffs' contention that the clause of § 2164(9) at issue in this litigation is blatantly unconstitutional. The Levys' situation is far from unique. The school district defendants have pointed out that schools are regularly confronted with claims of religious exemptions by families who may not actually be members of recognized organized religious groups that oppose vaccination on doctrinal grounds, and the New York State Commissioner of Education has taken the firm position that school districts are to apply § 2164(9) in literal conformance with its restrictive language, see, e.g., Matter of Van Druff, 21 Educ. Dept. Rep. 635; Matter of Curtin, 20 Educ. Dept. Rep. 473; Matter of Maier, 12 Educ. Dept. Rep. 56. The regulations promulgated by the New York State Commissioner of Health, furthermore, recognize as a legitimate basis for a religiously-based exemption from inoculation only "a written and signed statement from the person in parental relation to the child that such person is a bona fide member of a specified recognized religious organization whose teachings are contrary to immunization." The relevant regulation continues, "The principal or person in charge of the school may require supporting documents from the religious organization specified." l0 N.Y.C.R.R. s66.3(d). Section 2164(9) as presently written, construed, and applied, therefore, creates ongoing problems of constitutional magnitude for individuals throughout New York who maintain religiously grounded opposition to vaccination but do not belong to a religious organization recognized by the state.

The Supreme Court has consistently endorsed the taking of broad judicial steps to rectify the restraints on individual liberties that laws infringing upon First Amendment freedoms impose. Where separate, lengthy adjudications in the context of a multitude of specific factual circumstances may well be the price of a federal court’s refusal completely to eradicate patently unconstitutional state or local governmental action by abstaining or restricting its remedy so as to address solely the particular facts before it, the Supreme Court has found the price too high. The Court, for instance, struck down an overly vague loyalty oath where the Court found it "fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, would bring the oath within the bounds of permissible constitutional certainty." Baggett, 377 U.S. at 378, 84 S.Ct. at 1326. More recently, just last term the Court unanimously held racially unconstitutional a resolution banning "all First Amendment activities" within the central terminal area of Los Angeles International Airport, stating, "[I]t is difficult to imagine that the resolution could be limited by anything less than a series of adjudications, and the chilling effect of the resolution on protected speech in the meantime would make such a case-by-case adjudication intolerable." Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., ___U.S. ___, ___, 107 S.Ct. 2568, 2572 (1987).

Section 2164(9)'s limiting clause has been on the books for over twenty years. Despite several state court opinions attempting to apply subsection 9's religious exemption in a manner that would alleviate its unconstitutionality, the state has steadfastly refused to modify either the language of § 2164(9) or its interpretation of the provision. All the while, there has remained in effect a statutory scheme that violates the establishment clause by inhibiting the practice of certain individuals' religion and entangling government with religion by mandating official governmental recognition of certain religious denominations and impedes the free exercise of religion by individuals who oppose inoculations on religious grounds but do not belong to any "state approved" religious group. This cannot be allowed to continue.

The Court, therefore, hereby enjoins each of the defendants from unconstitutionally applying the religious exemption from vaccination that § 2164(9) creates so as to make the exemption available only to "bona fide members of a recognized religious organization." Defendants' restriction of the exception in such a manner violates both religion clauses of the First Amendment. The United States Constitution mandates that, if New York wishes to allow a religiously-based exclusion from its otherwise compulsory program of immunization of school children, it may not limit this exception from the program to members of specific religious groups, but must offer the exemption to all persons who sincerely hold religious beliefs that prohibit the inoculation of their children by the state.

IX. DAMAGES - Wexler Decision