Hostname: page-component-8448b6f56d-sxzjt Total loading time: 0 Render date: 2024-04-23T11:15:12.066Z Has data issue: false hasContentIssue false

Vaccines Mandates and Religion: Where are We Headed with the Current Supreme Court?

Published online by Cambridge University Press:  10 January 2022

Abstract

This article argues that the Supreme Court should not require a religious exemption from vaccine mandates. For children, who cannot yet make autonomous religious decision, religious exemptions would allow parents to make a choice that puts the child at risk and makes the shared environment of the school unsafe — risking other people’s children. For adults, there are still good reasons not to require a religious exemption, since vaccines mandates are adopted for public health reasons, not to target religion, are an area where free riding is a real risk, no religion actually prohibits vaccinating under a mandate, and policing religious exemptions is very difficult.

Type
Symposium Articles
Copyright
© 2021 The Author(s)

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Worboys, M., “Conquering Untreatable Diseases,” British Medical Journal 334, Suppl. 1 (2007): s19.CrossRefGoogle ScholarPubMed
The National Academies of Sciences, Engineering, Medicine, “Based on Science: Vaccines are Safe,” available at <https://www.nationalacademies.org/based-on-science/vaccines-are-safe> (last visited July 28, 2021). My colleague Lois Weithorn and I went in detail into this, setting out the evidence showing vaccines are safe, in our recent article, Weithorn, L. A. and Reiss, D. R., “Providing Adolescents with Independent and Confidential Access to Childhood Vaccines: A Proposal to Lower the Age of Consent,” Connecticut Law Review 52, no. 2 (2020): 772859.Google Scholar
Offit, P., Deadly Choices: How the Anti-Vaccine Movement Threatens Us All (New York: Basic Books, 2011): at 105125.Google Scholar
Phadke, V. K., Bednarczyk, R.A., Salmon, D. A., and Omer, S.B., “Association Between Vaccine Refusal and Vaccine-Preventable Diseases in the United States: A Review of Measles and Pertussis,” Journal of American Medical Association 315, no. 11 (2016): 11491158, at 1150. For specific examples, rates of exemptions in Connecticut increased over 1% between 2012-2019. That may not seem like much, but the starting point was 1.7% exempt, and the end 2.7% - over 60% growth. Further, the growth was entirely in the religious exemption category, not in the medical exemption, suggesting — since there’s no indication Connecticut’s religious composition changed dramatically in that time — that vaccine hesitancy increased. Connecticut State Department of Public Health, “School Immunization Survey Data,” available at <https://portal.ct.gov/DPH/Immunizations/School-Survey> (last visited June 28, 2021). In California, prior to a change in law, nonmedical exemption rates increased dramatically between 1994-2009. J. L. Richards, B. H. Wagenaar, J. V. Otterloo, R. Gondalia, J. E. Atwell, D. G. Kleinbaum, D. A. Salmon, and S. B. Omer, “Nonmedical Exemptions to immunization requirements in California: A 16-year longitudinal analysis of trends and associated community factors,” Vaccine 31, no. 29 (2013): 3009-3013, at 3009.CrossRefGoogle ScholarPubMed
Phadke et al., supra note 5, at 1151-1152.Google Scholar
Patel, M, Lee, A.D., and Clemmons, N.S., et al., National Update on Measles Cases and Outbreaks — United States, January 1-October 1, 2019, Center for Disease Control and Prevention, Morbidity and Mortality Weekly Report 68 (2019): 893896, available at <https://www.cdc.gov/mmwr/volumes/68/wr/mm6840e2.htm?s_cid=mm6840e2_w> (last visited July 28, 2021).CrossRefGoogle Scholar
Montanaro, D., “There’s a Stark Red-Blue Divide when it Comes to States’ Vaccination Rates,” NPR, June 9, 2021, available at <https://www.npr.org/2021/06/09/1004430257/theres-a-stark-red-blue-divide-when-it-comes-to-states-vaccination-rates> (last visited July 28, 2021).+(last+visited+July+28,+2021).>Google Scholar
Reiss, D. R., “Litigating Alternative Facts: School Vaccine Mandates in the Courts,” University of Pennsylvania Journal of Constitutional Law 21 (2018): 207263, at 216-218.Google Scholar
Id. at 209.Google Scholar
L. Fay, “No Exceptions: New York, Washington, Maine Abolish Religious Exemptions for Measles Vaccine, California Looks to Limit Medical Exemptions,” The 74, June 17, 2019, available at <https://www.the74million.org/no-exceptions-new-york-washington-maine-abolish-religious-exemptions-for-measles-vaccine-california-looks-to-limit-medical-exemptions/> (last visited June 28, 2021).+(last+visited+June+28,+2021).>Google Scholar
D. R. Reiss, “Legal Challenges to Stricter School Vaccine Mandates Rejected by NY Court,” Skeptical Raptor, March 19, 2021, available at <https://www.skepticalraptor.com/skepticalraptorblog.php/legal-challenges-stricter-school-vaccine-mandates-rejected-ny-court/> (last visited July 28, 2021). F.F. on behalf of Y.F. v. State, 65 Misc. 3d 616, 108 N.Y.S.3d 761 (N.Y. Sup. Ct. 2019).+(last+visited+July+28,+2021).+F.F.+on+behalf+of+Y.F.+v.+State,+65+Misc.+3d+616,+108+N.Y.S.3d+761+(N.Y.+Sup.+Ct.+2019).>Google Scholar
Reiss, D. R., “Litigating Alternative Facts,” supra note 10, at 240.Google Scholar
Id. at 239-243.Google Scholar
Reiss, D. R., “Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements,” Hastings Law Journal 65 (2014): 15731584, at 1551. (noting, for example, that Judaism, Catholics, most protestant churches and most Muslim strands do not prohibit vaccines, and in fact support them).Google Scholar
Id. 1583-1584.Google Scholar
Id. 1570-1573.Google Scholar
Kasstan, B., “If a Rabbi did say ‘You have to Vaccinate,’ We Wouldn’t’: Unveiling the Secular Logics of Religious Exemption and Opposition to Vaccination,” Social Science and Medicine 280 (2021).CrossRefGoogle Scholar
On employment mandates, see Baxter, T. D., “Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks,” Utah Law Review 2017, no. 5 (2017): 885925. More specifically, on COVID-19 workplace mandates, see M. Rothstein, W. E. Parment, D. Rubinstein Reiss, “Employer-Mandated Vaccination for COVID-19,” American Journal of Public Health 111, no. 6 (2021): 1061-1064; M. M. Costello, “Employer Mandates for COVID-19 Vaccination,” International Research Journal of Pharmacy and Medical Sciences 3, no. 6 (2020): 48.Google Scholar
Hodge, J. G. Jr. and Gostin, L. O., “School Vaccination Requirements: Historical, Social, and Legal Perspectives,” Kentucky Law Journal 91, no. 4 (2001-2002): 831890.Google Scholar
Colgrove, J. and Lowin, A., “A Tale of Two States: Mississippi, West Virginia, and Exemption to Compulsory School Vaccination Laws,” Health Affairs 35, no. 2 (2016): 348355. As noted in the article, most of these states offered non-medical exemptions. Id., 349-350. The impetus for this was the measles elimination effort.CrossRefGoogle ScholarPubMed
Phadke et al., supra note 5, at 1149-1158; Imdad et al., “Religious Exemptions for Immunization and Risk of Pertussis in New York State, 2000–2011,” Pediatrics 132, no. 1 (2013): 37-43; Bradford, W. D. and Mandich, A., “Some State Vaccination Laws Contribute to Greater Exemption Rates and Disease Outbreaks in the United States,” Health Affairs 34 (2015): 13831390; J.E. Atwell, J. Van Otterloo, J. Zipprich et al., “Nonmedical Vaccine Exemptions and Pertussis in California, 2010,” Pediatrics 132, no. 4 (2013): 624-630. See also, for specific examples of outbreaks driven by exemptions: A. P. Fiebelkorn, S. B. Redd, K. Gallagher, et al., “Measles in the United States during the Postelimination Era,” Journal of Infectious Diseases 202, no. 10 (2010): 1520–1528; V. Hall, E. Banerjee, C. Kenyon, et al., “Measles Outbreak — Minnesota, April–May, 2017,” Center for Disease Control Morbidity and Mortality Weekly Report (MMWR) 66, no. 27 (2017): 713–717; J. B. Rosen, R. J. Arciuolo, et al., “Public Health Consequences of a 2013 Measles Outbreak in New York City,” JAMA Pediatrics 172, no. 9 (2018): 811–817; R. McDonald, P. S. Rupppert, et al., Measles Outbreaks from Imported Cases in Orthodox Jewish Communities — New York and New Jersey, 2018–2019,” Center for Disease Control Morbidity and Mortality Weekly Report (MMWR) 68, no. 19 (2019): 444–445.CrossRefGoogle ScholarPubMed
Jacobson v. Massachusetts, 197 U.S. 11, 12 (1905). The full quote is: The Revised Laws of that Commonwealth, chap. 75, § 137, provide that ‘the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.’Google Scholar
Id. at 25-26.Google Scholar
Id. at 29-30.Google Scholar
Reiss, “Litigating Alternative Facts,” supra note 10, at 240. The First Amendment was incorporated into the Fourteenth Amendment towards the states in 1940, in Cantwell v. Connecticut, 310 U.S. 296, 306–07 (1940). Google Scholar
Id. at 239-243.Google Scholar
Emp’t Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).Google Scholar
Reiss, D. R. and Weithorn, L. A., “Responding to the Childhood Vaccination Crisis: Legal Frameworks and Tools in the Context of Parental Vaccine Refusal,” Buffalo Law Review 63, no. 4 (2012): 881–9, at 912–915.Google Scholar
Prince v. Massachusetts, 321 U.S. 158, 170 (1944).Google Scholar
Id. at 166-167.Google Scholar
Reiss, “Litigating Alternative Facts,” supra note 10, at 229-230.Google Scholar
F.F. ex rel. Y.F. v. New York, 65 Misc. 3d 616, 108 N.Y.S.3d 761 (N.Y. Sup. Ct. 2019) was the first instance, F.F. v State of New York, 194 A.D.3d 80, 143 N.Y.S.3d 734 (2021), decided March 18, 2021, is the appellate court’s decision, available at <https://law.justia.com/cases/new-york/appellate-division-third-department/2021/530783.html> (last visited July 28, 2021); V.D. v. State of New York, 403 F. Supp. 3d 76 (E.D.N.Y. 2019).+(last+visited+July+28,+2021);+V.D.+v.+State+of+New+York,+403+F.+Supp.+3d+76+(E.D.N.Y.+2019).>Google Scholar
E.g. City of Boerne v. Flores, 521 U.S. 507, 513-514 (1997); and a much larger jurisprudence in the lower courts, for example Tenafly Eruv Assn., Inc. v. Tenafly, 309 F. 3d 144, 168, n. 30 (CA3 2002) and San Jose Christian College v. Morgan Hill, 360 F. 3d 1024, 1032–1033 (CA9 2004), for two examples.Google Scholar
Smith, 494 U.S. at 878-879. The court held was that “an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” Id., at 878-879.Google Scholar
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531-32 (1993) (“[A] law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice … [but a] law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.”) In that case, a seemingly neutral ordinance prohibiting animal sacrifice was, evidence showed, enacted to target a church belonging to the religion of Santeria.Google Scholar
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729-31 (2018).Google Scholar
F.F. ex rel. Y.F. v. New York, 65 Misc. 3d 616, 108 N.Y.S.3d 761 (N.Y. Sup. Ct. 2019) was the first instance, F.F. v State of New York, 194 A.D.3d 80, 143 N.Y.S.3d 734 (2021), decided March 18, 2021, is the appellate court’s decision, available at <https://law.justia.com/cases/new-york/appellate-division-third-department/2021/530783.html> (last visited July 28, 2021).+(last+visited+July+28,+2021).>Google Scholar
Movsesian, M. L., “ Masterpiece Cakeshop and the Future of Religious Freedom ,” Harvard Journal of Law and Public Policy 42, no. 3 (2019): 711–50, at 713-716.Google Scholar
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760-62 (2014). The Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb –1(a), 1(b).Google Scholar
Lupu, I. C., “Hobby Lobby and the Dubious Enterprise of Religious Exemptions ,” Harvard Journal of Law and Gender 38, (2015): 35100, at 92-100. Extensive literature addressed Hobby Lobby and its effects, mostly expressing concern. E.g. P. Horwitz, “The Hobby Lobby Moment,” Harvard Law Review 128, no. 1 (2014): 154-189; J. C. Pizer, “Navigating the Minefield: Hobby Lobby and Religious Accommodation in the Age of Civil Rights,” Harvard Law & Policy Review 9, no. 1 (2015): 1-23; S. J. Levine, “A Critique of Hobby Lobby and the Supreme Court’s Hands-Off Approach to Religion,” Notre Dame Law Review Online 91, (2015): 26-49; S. Rosenbaum, “When Religion Meets Workers’ Rights: Hobby Lobby and Conestoga Wood Specialties,” Milbank Quarterly 92, no. 2, (2016): 202-206.Google Scholar
Masterpiece Cakeshop, Ltd., 138 S. Ct. at 1731-34.Google Scholar
Wiley, L. F., “Democratizing the Law of Social Distancing,” Yale Journal of Health Policy, Law & Ethics 19, no. 3 (2020): 50121.Google Scholar
Reiss, D. Rubinstein and Thomas, M., “More than a Mask: Stay-At-Home Orders and Religious Freedom,” San Diego Law Review 57, no. 4 (2020): 947972.Google Scholar
A. James et al., “High COVID-19 Attack Rate Among Attendees at Events at a Church—Arkansas, March 2020,” Centers for Disease Control and Prevention: Morbidity and Mortality Weekly Report, May 19, 2020, available at <https://www.cdc.gov/mmwr/volumes/69/wr/mm6920e2.html> (last visited July 28. 2021); S. Becker, “At Least 70 People Infected With Coronavirus Linked to a Single Church in California, Health Officials Say,” CNN, April 4, 2020, available at <https://www.cnn.com/2020/04/03/us/sacramento-county-church-covid-19-outbreak/index.html> (last visited July 28. 2021); R. Burkard, “Church at Center of COVID-19 Outbreak Responds,” The Messenger, April 7, 2020, available at <https://www.the-messenger.com/news/local/article_59dcb9b2-063a-56fe-a89a-e72ee157483f.html> (last visited July 28. 2021); K. Conger et al. “Churches were Eager to Reopen. Now They Are Confronting Coronavirus Cases,” New York Times, July 8, 2020, available at <https://www.nytimes.com/2020/07/08/us/coronavirus-churches-outbreaks.html/> (Last visited July 29, 2021).+(last+visited+July+28.+2021);+S.+Becker,+“At+Least+70+People+Infected+With+Coronavirus+Linked+to+a+Single+Church+in+California,+Health+Officials+Say,”+CNN,+April+4,+2020,+available+at++(last+visited+July+28.+2021);+R.+Burkard,+“Church+at+Center+of+COVID-19+Outbreak+Responds,”+The+Messenger,+April+7,+2020,+available+at++(last+visited+July+28.+2021);+K.+Conger+et+al.+“Churches+were+Eager+to+Reopen.+Now+They+Are+Confronting+Coronavirus+Cases,”+New+York+Times,+July+8,+2020,+available+at++(Last+visited+July+29,+2021).>Google Scholar
See Baude, W., “Foreword: The Supreme Court’s Shadow Docket,” New York University Journal of Law and Liberty 9, no. 1 (2015): 1-63.Google Scholar
Vladeck, S. I., “The Solicitor General and the Shadow Docket,” Harvard Law Review 133 (2019): 123163, at 125.Google Scholar
Baude, supra note 48, at11-15.Google Scholar
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020); S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020).Google Scholar
Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020).Google Scholar
Id. The case stated, “businesses categorized as ‘essential may admit as many people as they wish. And the list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages … all plants manufacturing chemicals and microelectronics.”Google Scholar
W. E. Parmet, “Roman Catholic Diocese of Brooklyn v. Cuomo — The Supreme Court and Pandemic Controls,” New England Journal of Medicine 384, (2020): 199-201, available at <https://www.nejm.org/doi/full/10.1056/NEJMp2034280> (last visited July 28, 2021); L. Gostin, “The Supreme Court’s New Majority Threatens 115 Years Of Deference To Public Officials Handling Health Emergencies,” Forbes, December 11, 2020, available at <https://www.forbes.com/sites/coronavirusfrontlines/2020/12/11/the-supreme-courts-new-majority-threatens-115-years-of-deference-to-public-officials-handling-health-emergencies/?sh=439cbe9d3a4b> (last visited July 28, 2021).+(last+visited+July+28,+2021);+L.+Gostin,+“The+Supreme+Court’s+New+Majority+Threatens+115+Years+Of+Deference+To+Public+Officials+Handling+Health+Emergencies,”+Forbes,+December+11,+2020,+available+at++(last+visited+July+28,+2021).>Google Scholar
C. R. Sunstein (Harvard Law School; Harvard University — Harvard Kennedy School (HKS)), “Sunstein on Roman Catholic Diocese of Brooklyn v. Cuomo,” available at <https://lsolum.typepad.com/legaltheory/2021/01/sunstein-on-roman-catholic-diocese-of-brooklyn-v-cuomo.html> (last visited July 28, 2021); B. Stephens, “Thank You, Gorsuch,” New York Times, November 30, 2020, available at <https://www.nytimes.com/2020/11/30/opinion/cuomo-gorsuch-coronavirus.html> (last visited July 28, 2021).+(last+visited+July+28,+2021);+B.+Stephens,+“Thank+You,+Gorsuch,”+New+York+Times,+November+30,+2020,+available+at++(last+visited+July+28,+2021).>Google Scholar
W. E. Parmet, supra note 56.Google Scholar
S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021) (mem); Gateway City Church. v. Newsom, 141 S. Ct. 1460 (2021) (mem). For a much more thorough discussion of these cases see W.E. Parmet, supra note 56.Google Scholar
Tandon v. Newsom, 141 S. Ct. 1294, 1294-99 (2021) (per curiam).Google Scholar
Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2018) (No. 18-2075), aff’d, 922 F.3d 140, 165 (3d Cir. 2019), rev’d and remanded sub nom. Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868 (2021).Google Scholar
Chavez, M. S., “Employing Smith to Present a Constitutional Right to Discriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit in Fulton v. City of Philadelphia,” American University Law Review 70, no. 3 (2020): 1165–216.Google Scholar
Id. at 1169, footnotes omitted.Google Scholar
Parmet, W. E., supra note 56.Google Scholar
Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868 (2021).Google Scholar
Id., (Aliton, J. Concurring).Google Scholar
Id., (Gorsuch, J., Concurring).Google Scholar
Id., (Barrett J., Concurring).Google Scholar
An interpretation raised previously in a decision by Judge Alito, as he was then, on the Third Circuit in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 364-66 (3d Cir. 1999).Google Scholar
Marshall, W. P., “Extricating the Religious Exemption Debate from the Culture Wars,” Harvard Journal of Law and Public Policy 41, no. 1 (2018): 67.Google Scholar
Prince v. Massachusetts, 321 U.S. 158, 166-167 (1944).Google Scholar
On that tension, see M. S. Chavez, supra note 62; C. Figueroa, “Fulton v. City of Philadelphia: The Third Circuit’s Bittersweet Advancement of LGBTQ+ Rights,” Tulane Journal of Law and Sexuality 29 (2020): 51-58; one alternative concern by a scholar in relation to Fulton is that that the discussions of the case ignore the interests of the children in question; J. G. Dwyer, “The Child’s Rights Forgotten, Again: Reframing Fulton v. City of Philadelphia,” November 12, 2020, available at <https://ssrn.com/abstract=3737686> (last visited July 28, 2021).+(last+visited+July+28,+2021).>Google Scholar
For some views, see W.E. Parmet, supra note 56, suggesting that Roman Catholic Diocese (let alone Gateway) puts vaccine mandates at risk. But see, M. Hoernlein and R. Gauthier, “Clues Mandatory Vaccines Would Pass Muster At High Court,” Law360, December 15, 2020, available at <https://www.law360.com/articles/1335601> (last visited July 28, 2021); and see Z. B. Pohlman, “Fulton and Government-Mandated Vaccination,” CANOPY Forum 2021, April 9, 2021, available at <https://canopyforum.org/2021/04/21/fulton-and-government-mandated-vaccinations/> (last visited July 28, 2021) (While all of these sources predated Fulton, their analysis applies, and will be discussed individually).+(last+visited+July+28,+2021);+and+see+Z.+B.+Pohlman,+“Fulton+and+Government-Mandated+Vaccination,”+CANOPY+Forum+2021,+April+9,+2021,+available+at++(last+visited+July+28,+2021)+(While+all+of+these+sources+predated+Fulton,+their+analysis+applies,+and+will+be+discussed+individually).>Google Scholar
Sherbert v. Verner, 374 U.S. 398, 405-409 (1963); Wisconsin v. Yoder, 406 U.S. 205, 207-209 (1972).Google Scholar
Reiss and Weithorn, supra note 29 at 905-911.Google Scholar
Hawes, W. H. IVFaith Healing Prosecutions: How Religious Parents Are Treated Unfairly by Laws that Protect their Liberty,” American Criminal Law Review 54, no. 3 (2017): 885; S. F. Peters, When Prayer Fails: Faith Healing, Children, and the Law (Oxford: Oxford University Press, 2007): at 185-195.Google Scholar
Reiss and Weithorn, “Responding to the Childhood Vaccination Crisis,” supra note 29, at 911-915.Google Scholar
Hughes, K., “The Criminalization of Female Genital Mutilation in the United States,” Journal of Law and Policy 4, no. 1 (1995): 321370.Google Scholar
J. G. Dwyer, supra note 72.Google Scholar
Prince, 321 U.S. at 166-67.Google Scholar
Reiss, supra note 10, 222-223 and the footnotes there. Unvaccinated adults pose a similar risk, as discussed below, but the point here is that the combination of risk to the child and risk to others is what makes this especially strong.Google Scholar
See Brown v. Smith, 24 Cal. App. 5th 1135, 1146, 235 Cal. Rptr. 3d 218, 226 (Cal. Ct. App. 2018) (rejecting plaintiff’s “complaint that Senate Bill No. 277 is not narrowly tailored to meet the state’s interest, because there are less restrictive alternatives (such as alternative means (unspecified) of immunization, and quarantine in the event of an outbreak of disease)” because “compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases”); Whitlow v. California, 203 F. Supp. 3d 1079, 1089-1091 (S.D. Cal 2016); Love v. State Department of Education, 29 Cal. App. 5th 980, 996, 240 Cal. Rptr. 3d 861 (Cal. Ct. App. 2018). Note that strict scrutiny was not applied in New York: F.F. v. State of New York, 194 A.D.3d 80, slip. op. at 87 (3d Dep’t 2021). Although the argument that a medical exemption is a secular exemption that requires a religious one may be applicable here as well, I left that discussion for under the adult mandates, to avoid repetition.Google Scholar
Reiss, “Thou Shalt Not Take the Name of the Lord Thy God in Vain,” supra at 1570-1588.Google Scholar
Id. at 1568-1570.Google Scholar
Braunfeld v. Brown, 366 U.S. 599, 608-09 (1961). Braunfeld was positively cited in a few other state cases challenging similar laws. Marks Furs, Inc. v. City of Detroit, 365 Mich. 108, 117, 112 N.W.2d 66, 70 (1961); Miles-Lee Supply Co. v. Bellows, 197 N.E. 2d 247, 250 (1964) (Held for defendant on unrelated grounds.) Google Scholar
Bowen v. Roy, 476 U.S. 693, 709, 711-12 (1986).Google Scholar
West, E., “The Case Against a Right to Religion-Based Exemptions,” Notre Dame Journal of Law, Ethics, and Public Policy 4, no. 3 (1990): 591638, at 603-604; J. E. Ryan, “Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment,” Virginia Law Review 78, no. 6 (1992): 1407-1462, at 1427-1428; G. Epps, “What We Talk About When We Talk About Free Exercise,” Arizona State Law Journal 30, no. 3 (1998): 563-601, at 570; Ira C. Lupu, “The Failure of RFRA,” University of Arkansas Little Rock Law Journal 20, no. 3 (1998): 575-619, at 593; W. P. Marshall, “Extricating the Religious Exemption Debate from the Culture Wars,” Harvard Journal of Law and Public Policy 41, no. 1 (2018): 67-77, at 70-71.Google Scholar
Steinberg, D. E., “Rejecting the Case against the Free Exercise Exemption: A Critical Assessment,” Boston University Law Review 75, no. 2 (1995): 241320, at 278.Google Scholar
Id. at 278-279.Google Scholar
Collins, R. B., “Too Strict?First Amendment Law Review 13, no. 1 (2014): 170.Google Scholar
Sherbert v. Verner, 374 U.S. 398 (1963).Google Scholar
Fulton, 141 S. Ct. at 1883-1926.CrossRefGoogle Scholar
Parmet, W.E., supra note 56.Google Scholar
See, for a larger collection of such studies, Immunization Action Coalition, Personal Belief Exemptions for Vaccination Put People at Risk. Examine the Evidence for Yourself, available at <https://www.immunize.org/catg.d/p2069.pdf> (last visited July 28, 2021).+(last+visited+July+28,+2021).>Google Scholar
Wang, T.L., Jing, L., and Bocchini, J.A. Jr.Mandatory Influenza Vaccination for All Healthcare Personnel: A Review on Justification, Implementation and Effectiveness,” Current Opinion in Pediatrics 29, no. 5 (2017): 606615.CrossRefGoogle ScholarPubMed
D. Rubinstein Reiss, “Dr. Kenneth P Stoller Requests Stay of Punishment for Fake Vaccine Exemptions — Judge Says No,” Skeptical Raptor, March 21, 2021, available at <https://www.skepticalraptor.com/skepticalraptorblog.php/dr-kenneth-p-stoller-requests-stay-of-punishment-for-fake-vaccine-exemptions-judge-says-no/> (last visited July 28, 2021); P. Sisson, “Three Doctors Face Medical Discipline for Vaccine Exemptions, and More Could be on the Way,” San Diego Union-Tribune, October 24, 2019, available at <https://www.sandiegouniontribune.com/news/health/story/2019-10-24/three-doctors-face-medical-discipline-for-vaccine-exemptions-and-more-could-be-on-the-way> (last visited July 28, 2021).+(last+visited+July+28,+2021);+P.+Sisson,+“Three+Doctors+Face+Medical+Discipline+for+Vaccine+Exemptions,+and+More+Could+be+on+the+Way,”+San+Diego+Union-Tribune,+October+24,+2019,+available+at++(last+visited+July+28,+2021).>Google Scholar
Reiss, “Thou Shalt Not Take the Name of the Lord Thy God in Vain,” supra at 1557.Google Scholar
Farber, D., “The Long Shadow of Jacobson v. Massachusetts: Public Health, Fundamental Rights, and the Courts,” San Diego Law Review 57, (2020): 833858; B. Horowitz, “A Short in the Arm: What a Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccination During a Public Health Emergency,” American University Law Review 60, no. 6 (2010): 1715-49, at 1742-1743.Google Scholar
Horowitz, supra note 100.Google Scholar
W.E. Parmet, supra note 56.Google Scholar
Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353 (4th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 590 (2011) (“[T]he state’s wish to prevent the spread of communicable diseases clearly constitutes a compelling interest.”); Whitlow v. California, 203 F. Supp. 3d 1079, 1089-90 (S.D. Cal. 2016); Brown v. Smith, 24 Cal. App. 5th 1135, 1146 (Cal. Ct. App. 2018).Google Scholar
Cantor, J. D., “Mandatory measles Vaccination in New York City — Reflections on a Bold Experiment,” New England Journal of Medicine 381, (2019): 101103.CrossRefGoogle ScholarPubMed
Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 69.Google Scholar
Jacobson, 197 U.S. at. 32-34.Google Scholar