NYVIC (New Yorkers for Vaccination Information and Choice)


The Wexler Decision


Section 2164(9) provides a religiously-based exception to New York's program of compulsory vaccination of school children. This exception, obviously, must be restricted to persons whose opposition to immunization stems from religious beliefs, not views rounded upon, for instance, medical or purely moral considerations. The next step in determining whether the Shirrs or Levys should prevail in their respective actions, therefore, is for the Court to undertake an inquiry into whether the grounds which these plaintiffs have put forth as the bases for their opposition to the inoculation of their children are indeed "religious" in nature.

Defining "religion" for legal purposes is an inherently tricky proposition. For one, the very attempt brings the government exceedingly close to the involvement with ecclesiastical matters against which the First Amendment carefully guards. Additionally, the tremendous diversity of the manners in which human beings may perceive of the universe and their place in it may make the task virtually impossible. Scholars have been deeply perplexed by the problems engendered by the necessity of delineating what constitutes the "religion" which the First Amendment protects, see, e.g., Choper, Defining "Religion" in the First Amendment, 1982 U. Ill. L. Rev. 579; Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056 (1978), and courts have struggled to formulate workable definitions. The Supreme Court, for example, has held that a religion need not necessarily be founded upon a belief in the fundamental premise of a "God" as commonly understood in Western theology, Torcaso v. Watkins, 367 U.S. 488, 81S.Ct. 1680 (1961), and has written that "the test of belief 'in a relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God." United States v. Seeger, 380 U.S. 163, 165-66, 85 S.Ct. 850, 854 (1965). The Supreme Court and Second Circuit have each declared religion to involve the "ultimate concerns" of individuals, see id., 380 U.S. at 187, 85 S.Ct. at 865; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440-41 (2d Cir. 1981), and the Second Circuit has stated that one touchstone of a religion is present where a believer will categorically disregard elementary self-interest rather than transgressing religious tenets, United States v. Allen, 760 F.2d 447 450 (2d Cir. 1985)(citing Barber, 650 F.2d at 440, and United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943)). See also, e.g., Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir. 1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756 (1982); Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y. 1977).

Whatever definition of religion courts should use in adjudicating controversies calling into question governmental actions in the name of liberty of religious belief and practice, there can be little doubt that the beliefs that plaintiffs have espoused in their pleadings, affidavits, and courtroom testimony qualify as "religious". Paragraph 12 of the Sherrs' complaint sets forth the Sherr family's beliefs in a nutshell:

[A]ll persons must live in harmony with the mutual world and its order and must not interfere with the natural order. All things are part of one intimate universe, or whole; there is a definite order to the universe. This universe includes everything good being called God. Health is the unhindered expression of life (God) moving through the body, mind and heart. Therefore, anything that hinders life's expression is contrary to [the Sherrs'] religious belief. Immunization hinders life (God) and thus is contrary to God. To deviate (immunize) from this natural order would be to sin.

Alan Paul Sherr further expanded on the family's beliefs in the affidavit he filed with the Court and during the course of his testimony, stating on the stand, for instance, that "I see God as being pervasive everywhere, and God defined, in form, you might say, as life. And I see myself as God in expression or life in expression. So you might say that as a human being I am life in expression," and that "[a]nything that is 'contrary' to the expression of life, hinders one's health. Immunization in my eyes, in the framework of my religious beliefs and in my wife's, I might add, interferes with the health of the organism ...." (Record at 20, 23-24).

Paragraph 14 of the Levy's complaint reads:

Plaintiffs' sincere religio[us] are as follows: The Universe and all things in it are the manifestation of Divine Consciousness or God. God is spirit and all God's creation is spirit manifesting in infinite variety and form including the physical or material form. Spirit is infinite and indestructible; God is loving and in perfect harmony. Creation is a reflection of that Love and Harmony. Plaintiffs believe that as spiritual beings manifesting physical form in God's perfect

creation, they are also reflections of that Love and Harmony.

All of Creation is interconnected. Plaintiffs cannot separate themselves from God and the rest of Creation because of the Cosmic Law of Oneness. It is when Plaintiffs believe they are somehow separate from the rest of Creation that disharmony and therefore disease results. This disharmony can cause apparent disturbances in the mental, emotional or physical aspect of the incarnate being, but since it is not caused

at the physical level, they believe that to treat it on that level is not really dealing with the problem at its source. Vaccinations, and other forms of medical intervention do not take into account the spiritual nature of disease, and therefore they are a violation of God's natural and spiritual laws. This is abhor[r]ant to Plaintiffs, as they have made an effort over the years to live in accordance with God's

Universal laws as they understand them and integrate them into their daily lives.

Louis Levy's complaint reiterates the family's beliefs and during his testimony Levy stated, among other things, that, "to us [Louis and Valerie Levy] religion is not part and parcel, religion is not a temple, religion is not something that is outside of ourselves, something that we live and it's inside of ourselves. It's something that we feel the world in such a way that is interconnected: that we can't separate our concept of God with what is inside of us and around us," and that "[w]e take the same concept about religion into the field of health .... We feel that any introduction into that process of a foreign element outside the normal processes of the body, is going to [a]ffect the body adversely and, therefore, we feel it is a violation in a sense of our nature, physical, spiritual religious nature." (Record at 56, 59, 60-61).

The beliefs to which the Sherrs and Levys expressed their adherence, which Professor Ramsey categorized in his testimony as "pantheistic,"6/ surely can be classified as religious for purposes of the Court's adjudication of plaintiffs' cases. Plaintiffs' various descriptions of their beliefs are replete with reference to "God" and reveal that these beliefs are rooted in matters of "ultimate concern" to the Sherrs and Levys, and plaintiffs' very refusal to have their children immunized and ensuing legal battle with the school district and state defendants manifests a dedication to their principles that may seem to an outsider to fly in the face of the best interests of Alan Paul and Claudia Sherr and Louis and Valerie Levy and their children. The Court therefore finds that the beliefs which each set of plaintiffs has put forth as the basis for their claim of entitlement to the exemption from vaccination 2164(9) makes available should rightfully be classified as "religious" for purposes of this litigation.

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."


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