NYVIC (New Yorkers for Vaccination Information and Choice)


The Wexler Decision


In order for plaintiffs to be afforded the exemption from immunization that they seek, it is not sufficient merely that the beliefs that they assert as grounds for exemption be religious in nature. It must also be demonstrated that the espoused beliefs are sincerely held and that the stated beliefs, even if accurately reflecting plaintiffs' ultimate conclusions about the advisability of inoculation of their children, do in fact stem from religious convictions and have not merely been framed in terms of religious belief so as to gain the legal remedy desired.7/

Attempts to ascertain the sincerity of claims of religious belief must be undertaken with extreme caution. The Second Circuit observed in Barber:

Sincerity analysis seeks to determine the subjective good faith of an adherent .... The goal, of course, is to protect only those beliefs which are held as a matter of conscience. Human nature being what it is, however, it is frequently difficult to separate this inquiry from a forbidden one involving the verity of the underlying belief.

650 F.2d at 441. Any form of governmental investigation into the "objective truth" of a person's religious beliefs, be it in a judicial form or otherwise, in essence puts the individual on trial for heresy. See United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882 (1944). As the Supreme Court emphasized in Seeger, however:

While the "truth" of a belief is not open to question, there remains the significant question whether it is "truly held." This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact ....

380 U.S. at 185, 85 S.Ct. at 863. See also, e.g., Africa, 662 F.2d 1025; Stevens, 428 F.Supp. 896; Riga, Religious, Sincerity, and Free Exercise, 25 Catholic Lawyer 246 (1980).

In the papers the Sherrs have filed with the Court and in Alan Paul Sherr's testimony on his family's behalf, the Sherrs have couched their opposition to vaccination of their son Jared in the language of religion. Upon careful consideration of all the evidence put forward in this litigation concerning the Sherr family, their asserted beliefs, and the actions they have taken over the last several years with regard to their desire to avoid inoculation of their children, however, the Court finds that, although the Sherrs are clearly genuinely opposed to immunization, the heart of their opposition does not in fact lie in theological considerations. The Court is of the opinion, in other words, that although the Sherrs' voiced resistance to vaccination is no doubt sincere, their claims of a sincerely religious basis for their objections to inoculation are not credible.

The evidence presented reveals that when Alan Paul and Claudia Sherr registered their elder son Scott Daniel Sherr for kindergarten in the Northport-East Northport school system in February 1985, they produced an affidavit requesting that Scott be exempted from 2164's immunization requirements because the Sherrs were members of "The American Natural Hygiene Society, Inc." a "national non-profit, tax-exempt, health-education organization." The affidavit stated that the society "rejects the theory and use of compulsory inoculations under any circumstances, as a matter of science, safety, and conscience," and that members of the society "are opposed to inoculations as violating the natural laws of life and health by introducing pathological toxins into a healthy, human body." Nowhere in the document is there any mention of a religious foundation for the beliefs of the society's members. The school district rejected the Sherrs' claim for an exemption, and Scott entered school after receiving the requisite vaccinations.

In February 1987, plaintiffs registered Jared for kindergarten and submitted documents signed by one Gustave Dubbs, minister of "The Missionary Temple at Large, Universal Religious Brotherhood, Inc." in Sarasota, Florida, indicating that the Sherrs were members of this group and that the temple adheres to, among other things, belief in spiritual healings and opposes compulsory immunization. Investigation by the school district uncovered that the local Sarasota schools were not familiar with the temple, that it had no formal organization or structure, conducted no religious services, and operated out of Dubbs's home. The "temple," in other words, was nothing more than a "mail order church." The school district therefore rejected the Sherrs' request that Jared be granted an exemption from inoculation.

In July 1987, the Sherrs sent a Letter to Dr. Brosnan informing him that they had retained counsel, stating that they believed they were entitled to an exemption under 2164(9), and setting forth in a series of numbered paragraphs their asserted religious beliefs.8/ The letter made no mention of either The American Natural Hygiene Society or Gustave Dubbs's temple in Florida, and the beliefs the Sherrs claimed in the letter to be their own bore a striking resemblance to those which the plaintiffs in Allanson had asserted in their successful suit in front of Judge Miner.9/ The Sherrs then filed their action against the school district and state defendants, again modifying their description of their supposed beliefs. See supra p. 27 for the Sherr family's beliefs as stated in Paragraph 12 of their complaint.

Alan Paul Sherr's testimony also highlights the dubious sincerity of plaintiffs' purported religious basis for their wish that Jared not be vaccinated. Sherr admitted that he had joined Gustave Dubbs's group solely for the purpose of attempting to gain an exemption for Scott and was not even clear as to the temple's name. Sherr also conceded that he had "paraphrased" the statement of the Allanson's beliefs in Judge Miner's opinion. Additionally, in response to the Court's questioning, Sherr testified that, although he opposed any "intrusion" into the body on religious grounds, he had had Jared X-rayed when it was believed that the boy had broken his leg, allowed dentists to remove decay from cavities his children might have, and had his children circumcised. Furthermore, Alan Paul Sherr is a chiropractor, and during the course of his testimony it became clear that his opposition to vaccinations and attitudes toward sickness and health in all likelihood derive for the most part from his medical and philosophical perspective as a chiropractor and chiropractic ethics, not from any religiously inspired source. The Court's conclusion, moreover, is buttressed by its observance of Alan Paul Sherr's demeanor and attitude on the stand.

Since the Court finds that the Sherrs do not sincerely hold the religious beliefs they put forth as the foundation for their assertion of entitlement to an exemption from immunization under 2164(9), these plaintiffs' claim for relief from the refusal of the exemption they seek must be denied.

The Levys, on the other hand, do manifest a complete sincerity about the religious beliefs they embrace. Louis Levy, for instance, testified that he has studied and done a good deal of reading on religion since his teens and has for many years been very involved in religious and spiritual study and activity. The Levys' conception of human existence and the physical world seems to pervade their whole way of life, including their eating habits and methods of combating illness, and Louis Levy stated that his family's religious precepts concerning vaccinations are in adherence with those of the Christian Science Church. Although the Levys, like the Sherrs, joined a religious organization in an attempt to gain an exemption under 2164(9), namely "The Church of Human Life Science," that organization does not appear to be a sham like Gustave Dubbs's "temple" in Florida, but an actual group whose views are very much in line with that which the Levys' hold. It is a fundamental tenet of the group, for instance, that "the integrity of the body be maintained" since "our bodies are the temple of our being." The church, therefore, "reject[s] completely any manner of cutting, puncturing, pollution, intravenous injection of any substance, vaccination, inoculation or any other imposition upon the vital domain" and holds that "all drugs and vaccines are ethically, morally, religiously, mentally and physically wrong, being at variance with our Creator's Mandate." Louis Levy, moreover, greatly impressed the Court with the seriousness with which he has contemplated the foundations of his religious beliefs and their implications for his family's daily life, and with the thoughtfulness with which he considered the theological ramifications of the questions posed to him.

Accordingly, the Court finds that the Levy family holds sincere religious beliefs which would be violated by the mandatory vaccination of Sandra Jasmine Levy as a condition of attending school. The Levys, therefore, are entitled to a religious exemption from inoculation under 2164(9).

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.


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