1/ The protections of the First Amendment apply not only to actions
taken by the federal government, but by those taken by states and local
entities and officials as well. Torcaso v. Watkins, 367 U.S. 488,
81S.Ct. 1680 (1961); Cantwell v. Connecticut, 310 U.S. 296, 60
S.Ct. 900 (1940).
2/ The Levy action named as defendants the same parties as did the
Sherr's case, except that it designated Clifford Bishop, the principal of
the Norwood Avenue Elementary School, as a defendant rather than Dickinson
Avenue Elementary School principal John Scurti.
3/ Matter of Maier is the administrative appeal to the Commissioner
that followed the Maier family's action in federal court and preceded
their state court action.
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
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
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
6/ Webster's Third New International Dictionary defines
"pantheism," in the sense Professor Ramsey is using the term, as
"a doctrine that the universe conceived of as a whole is God: the
doctrine that there is no God but the combined forces and laws that are
manifested in the existing universe."
7/ The school district defendants have challenged the sincerity of
plaintiffs' assertions of religious beliefs that prohibit the vaccination
of their children. Although counsel for the state defendants participated
in cross-examination of Alan Paul Sherr and Louis Levy concerning the
beliefs they and their families purportedly hold, the state defendants
declare in the papers they filed subsequent to the taking of plaintiffs'
testimony that they do not now question the sincerity of plaintiffs'
avowed adherence to their respective systems of belief.
8/ The Sherrs' letter reads in relevant part:
Our religious beliefs are as follows:
To live in harmony with the natural world and its order, and not
sep[e]rate from our daily lives.
We are inclined to live in a way that will promote love and harmony
among all people, animals, plants and the natural world.
We are opposed to anything that interferes with this natural order.
We are not dogmatic or rigid in our actions or thinking[;]
flexibility and constant change are necessary to life itself.
We respect people[']s desires to live a long time, to avoid pain and
to seek happiness according to their unique needs and desires.
We believe that all things are part of one intimate universe or
whole. This universe includes everything good being called GOD.
We believe in a definite order to the universe, and that everything
follows and is a result of this order.
We believe that life is not characterised by disease. Another word
for life is God and one characteristic of God is health.
We believe that life is the end result of the truth of love and
life therefore has inherent to it design and control.
We believe that health is the unhindered expression of life moving
through the body, mind and heart. Therefore anything that hinders life's
expression is contrary to our beliefs. Immunization, therefore, hinders
life and thus is contrary to God.
We believe that when the identity is focused on disease, disease is
what manifests[;] when it is focused on life, life is what manifests.
All medications and pharmaceuticals are defensive, indicating a focus on
disease; life is offensive, therefore medications are not required. Life
begets life and health begets health. This is God's way[;] to deviate
could be sinning. Immunization, therefore, focuses on disease and is
contrary to God's way and is therefore sin.
We believe thou shall love the lord thy God,... not thou shalt love
disease... the stance is one of life, not disease or in religious terms
We believe there is one God, one whole. The whole is greater than the
sum of its parts not the sum of the parts equal[s] the whole.
9/ Judge Miner sets forth Robert and Kathryn Allanson's beliefs at some
length in his decision in their case:
As described by plaintiffs in papers earlier submitted to the Court,
[plaintiffs'] "beliefs" consist of the following:
"All persons and phenomenon are following a grand natural order,
which should not be interfered with. All things are inter-connected and
operate harmoniously. Man's existence on earth is best served by not
disturbing this natural order. Immunization is abhorrent to these
beliefs, and plaintiffs vehemently oppose such practices as they are
contrary to plaintiffs' beliefs.
"These beliefs and faith in this grand natural order is
something to which all is virtually dependent on or subordinate to, and
occupies a paramount position in plaintiffs' daily lives, much the same
as traditional notions of religion occupied in the lives of its
Affidavit of Robert Allanson, Paragraphs 15 and 16.
Plaintiffs have amplified this description in the following manner:
Our religious beliefs require us to want to live in harmony with the
natural world and its order. Our religion is not separate from our daily
lives. We are inclined to live in a way that will promote love and
harmony among all people, animals, plants and the natural world. We are
inclined to avoid, and if necessary, to oppose anything that interferes
with this natural order.
However, we try not to be dogmatic or rigid in our actions or
thinking -- flexibility and constant change are necessary for life
itself. We respect people's desires to live a long time, to avoid pain
and to seek happiness according to their unique needs and desires.
We believe that all things are part of one intimate universe, or
whole. This universe that includes everything good being called God,
although we usually do not use this word because many people think of
God as an individual consciousness, much like their own. This Oneness or
God is understood in many religions to be the ultimate origin and
Creator of everything.
We believe that there is a definite order in the Universe, and that
everything follows and is a result of this order, even if we often do
not clearly see or understand it.
We believe that in accordance with the universal or natural order,
human beings evolved within and are still very much a part of the
natural order and what is called "The Natural World." It has
been persuasively demonstrated by a modern science that human beings are
one species of animal among many, and that we share with other animals
certain limitations. These limitations involve the need for certain
definite environmental and dietary conditions in order to be healthy and
continue to live. For example, human beings need certain amounts of
sunlight, oxygen, and various nutrients which are unique to our species.
When human beings are without the conditions under which their
fundamental heartiness and health develop, and/or are exposed to
artificial or unusual conditions or substances, there is the probability
of weakening stress and the possibility of bodily damage.
Allanson, No.CV 84-174, slip op. at 8-11.
10/ The Court assumes that the parties are familiar with the Supreme
Court's decision in Memphis Community School District v. Stachura,
477 U.S. 299, 106 S.Ct. 2537 (1986), and have considered any possible
relevance to this litigation of the Supreme Court's holding in that case
regarding the availability of damages based on the abstract value or
importance of constitutional rights.