NYVIC (New Yorkers for Vaccination Information and Choice)


The Wexler Decision


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.


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