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The Wexler Decision

FOOTNOTES

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 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.

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 the devil.

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 believers."

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.


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