| Original Full Text | Seton Hall University eRepository @ Seton Hall Student Works Seton Hall Law 2024 Faithful Parenting: An Analysis of Religious Exemptions to Child Neglect Laws and Vaccine Mandates Under the First Amendment George Schneider Follow this and additional works at: https://scholarship.shu.edu/student_scholarship Part of the Law Commons 2I. Significance of the Religious Neglect and Vaccination Exemptions and Recent Newsworthiness of the Issues There is not much Americans hold more sacred than their children and their religion. So what happens when the protection of one clashes with the protection of the other? A significant minority of religious parents hold sincere beliefs against treating their children with medical science, instead relying on so-called “faith healing,” which consists mostly of prayer and perhaps some alternative healing methods.1 An even larger number hold religious beliefs against vaccinating their children.2 And in many states these beliefs are legally protected by religious exemptions to child neglect/abuse statutes as well as to vaccination mandates. But does the legal protection of these religious beliefs violate the fundamental and long-standing role of the government to protect children from entirely treatable conditions and diseases? In 2016 an Idaho state task force found that five children had unnecessarily died in the state in 2013 from treatable conditions because their parents had refused medical treatment on religious grounds.3 While these tragic reports draw national media attention and scathing articles,4 little has been done to change the law and the exemptions remain firmly in place. As for vaccine exemptions, a similarly already controversial clash between religion and medical care was reinvigorated by its relevance to the Covid-19 pandemic.5 This paper will analyze the two sets of exemptions against 1 Aleksandra Sandstrom, Most States Allow Religious Exemptions From Child Abuse and Neglect Laws, PEW RESEARCH CENTER, August 12, 2016, https://www.pewresearch.org/short-reads/2016/08/12/most-states-allow-religious-exemptions-from-child-abuse-and-neglect-laws/; Judy Valente, Christian Science Healing, PBS, August 1, 2008, https://www.pbs.org/wnet/religionandethics/2008/08/01/christian-science-healing/6/. 2 Joshua T.B. Williams, Religious Vaccine Exemptions in Kindergartners: 2011-2018, AMERICAN ACADEMY OF PEDIATRICS, December 2019, https://publications.aap.org/pediatrics/article/144/6/e20192710/37996/Religious-Vaccine-Exemptions-in-Kindergartners. 3 Sandstrom, supra note 1. 4 Jason Wilson, Letting Them Die: Parents Refuse Medical Help for Children in the Name of Christ, THE GUARDIAN, April 13, 2016, https://www.theguardian.com/us-news/2016/apr/13/followers-of-christ-idaho-religious-sect-child-mortality-refusing-medical-help. 5 Phil McCausland, Religious Exemptions to Vaccine Mandates Could Test ‘Sincerely Held Beliefs’, NBC NEWS, September 5, 2021, https://www.nbcnews.com/news/us-news/religious-exemptions-vaccine-mandates-could-test-sincerely-held-beliefs-n1278514. 3the backdrop of the current state of the First Amendment’s Religion Clauses. After examining the state of the clauses and the exemptions generally, both exemptions will be tested as to whether they are required by the Free Exercise Clause, prohibited by the Establishment Clause, or simply permitted at a state’s legislative discretion. In the end a few conclusions will be evident. For the neglect exemptions, parents’ free exercise rights to a religious exemption are protected by strict scrutiny in states with RFRA legislation, but they would not have a strong claim in states without such legislation due to the lack of any secular exemptions in the neglect laws. And there is a strong case to be had to challenge the exemptions on establishment grounds due to their strong ties to specific sects as well as the unqualified nature of their language. For vaccination requirements, the existence of medical exemptions likely provide religious parents with a free exercise right to a religious exemption. And because the vaccination exemptions are not as tied to a specific religious sect nor as unqualified as the neglect exemptions, an Establishment Clause challenge to them would be weaker. But the case could perhaps succeed due to the “well recognized” language of the exemptions and the fact that they still burden secular citizens. II. The Status of Religion in First Amendment Doctrine – The Most Favored Nation Interpretation of the Free Exercise Clause and the Recent Narrowing of The Establishment Clause In order to analyze the religious exemptions, an examination of the current state of the religion clauses of the First Amendment is necessary. The doctrinal standing of the Free Exercise and Establishment Clauses will serve as the framework under which this paper’s topic can be scrutinized. The vital consideration for a Free Exercise Clause challenge to a law as it relates to this paper’s topic is the presence or absence of a secular exemption in the law. This rule comes from 4Fraternal Order of Police v. City of Newark, where two Muslim police officers raised a free exercise challenge to the city’s policy of prohibiting officers from wearing beards.6 Then-Judge Alito of the Third Circuit upheld the challenge, relying on the fact that the policy provided exemptions for officers with medical conditions and officers working undercover.7 The court ruled that providing a secular exemption but no religious exemption must be supported by a substantial justification subject to strict scrutiny,8 a standard that is already unlikely to be met considering the very existence of the secular exemption is evidence that the government’s interest is not compelling.9 This rule has been termed the “most favored nation” (MFN) theory and has recently been adopted by the Supreme Court in Fulton v. City of Philadelphia as well as Tandon v. Newsom.10 Thus a secular exemption in a law will trigger strict scrutiny for free exercise claims requesting a religious exemption. 6 Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3rd Cir. 1999). 7 Id. 8 Id. 9 Id. at 366. 10 Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Tandon v. Newsom, 141 S. Ct. 1294 (2021). At its core, the Most Favored Nation concept holds that secular activity can never be treated more favorably than comparable religious activity. Comparability is determined by the government interest at issue: secular and religious activity is comparable if the secular activity could pose the same type of risks that the government claims supports the regulation of religious exercise. In Fulton, Catholic Social Services (CSS) filed an action against the City of Philadelphia after the city decided to no longer work with the organization in certifying foster families because of CSS’s refusal to certify same-sex couples and nonmarried couples. The decision was pursuant to a non-discrimination policy that reserved the City’s right to grant exceptions. In ruling for CSS, the Court held that the City’s policy allowing it to grant exceptions was not neutral and thus subject to strict scrutiny. Further, the City’s purported interest in anti-discrimination and maximizing the number of certified foster families was not compelling enough and was undermined by the denial of CSS itself. Tandon was a challenge to California’s COVID-19 restrictions that limited at-home gatherings to individuals from no more than three households. The restriction applied to religious exercise gatherings but made exceptions for some commercial activities. In ruling for the plaintiff, the Court officially adopted the Most Favored Nation doctrine and held that any regulation treating secular activity more favorably than comparable religious activity must be supported by strict scrutiny. Here the activities were comparable because both regulations were aimed at slowing the spread of COVID-19 and the religious activities did not pose a greater risk of this spread than the commercial activities. Considering Tandon was during an emergency pandemic, it could be viewed as limited precedent, but together with Fulton it is clear that the Court embraces MFN. For further discussion on MFN, see Andrew Koppelman, The Increasingly Dangerous Variants of the “Most-Favored Nation” Theory of Religious Liberty, 108 IOWA L. REV. 2237 (2023) located at https://ilr.law.uiowa.edu/sites/ilr.law.uiowa.edu/files/2023-07/A7_Koppelman.pdf 5A second way strict scrutiny can apply to a free exercise case is if the given state has adopted legislation mirroring the Religious Freedom Restoration Act (RFRA). The original federal RFRA, passed in 1993, aimed at protecting religious freedom by requiring that any legislation that substantially burdens religious exercise be the least restrictive means to support a compelling government interest.11 Twenty-eight states have adopted their own versions of RFRA, meaning the same strict scrutiny standard applies to all of their state free exercise claims.12 Alternatively, in the absence of a secular exemption or state RFRA, the claim is governed by Employment Division v. Smith. In Smith the Supreme Court denied an exemption to a controlled substances law for Native Americans who were fired from their jobs for ingesting peyote as part of a Native American church service.13 The Court ruled that, where a law is facially neutral and generally applicable in regards to religion, the government is not required to show a compelling government interest to deny an exemption, instead essentially creating a rational basis test.14 Thus the controlled substances law in Smith stands in contrast to the laws in Fraternal Order, Fulton, and Tandon: in those cases the existence of exemptions made the laws not facially neutral and generally applicable; strict scrutiny review, rather than Smith’s rational basis, applies. Considering the substantial difference between litigating a case in strict scrutiny and litigating a rational basis test, one can see the importance of the presence or absence of a secular exemption for a free exercise religious exemption claim. 11 42 U.S.C. 2000bb. 12 BECKET LAW, https://www.becketlaw.org/research-central/rfra-info-central/numbers/; For a discussion on state RFRAs, see How Best to Understand State Religious Freedom Restoration Acts (RFRAs), UC DAVIS SCHOOL OF LAW FACULTY BLOG, April 24, 2015, https://facultyblog.law.ucdavis.edu/post/how-best-to-understand-state-religious-freedom-restoration-acts-(rfras).aspx. 13 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). 14 Id. at 883. 6Establishment Clause doctrine has similarly been restructured by the Supreme Court within the last few years. In Kennedy v. Bremerton School District, a public high school football coach brought suit after he was fired by the district for conducting prayers on the field after games.15 The Court rejected the school district’s Establishment Clause concerns and instead found the termination a violation of the plaintiff’s free exercise rights.16 In so ruling, the Court relied on a test of no-coercion, along with “historical practices and understandings” to determine whether an Establishment Clause violation occurred as contemplated by the Founding Fathers.17 This opinion represented an abandonment of previous Establishment Clause precedent provided by Lemon v. Kurtzman, which held that an Establishment Clause violation occurs whenever a statute has a non-secular purpose, its principal effect promotes or inhibits religion, or it fosters excessive entanglement between government and religion, as well as its “endorsement test” offshoot.18 The upshot for the purposes of this paper is that Kennedy has weakened challenges to religious exemptions on Establishment Clause grounds. Whereas before the ruling, legislatively-granted exemptions could be held to violate the clause where they promoted religion or had a religious purpose, now challenges must be rooted in a finding of coercive government action or the historical understandings of the founders. III. Exemptions to Neglect/Abuse Statutes and Criminal Prosecutions of Parents Who Rely on Prayer Instead of Medical Treatment for Their Children While every jurisdiction in the United States has laws proscribing abuse and neglect of children, thirty-four states have religious exemptions from civil child abuse statutes, while fewer have exemptions from the criminal abuse statutes and six states have exemptions to their 15 Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022). 16 Id. 17 Id. at 2428. 18 Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). 7manslaughter laws.19 One such example of a criminal exemption is Idaho’s “Injury to Children” statute: (1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one (1) year, or in the state prison for not less than one (1) year nor more than ten (10) years…. (4) The practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not for that reason alone be construed to have violated the duty of care to such child.20 Idaho then uses essentially the same language to carve out their civil religious exemption in their definition of neglect under the Child Protective Act: (31) "Neglected" means a child: (a) Who is without proper parental care and control, or subsistence, medical or other care or control necessary for his well-being because of the conduct or omission of his parents, guardian or other custodian or their neglect or refusal to provide them; however, no child whose parent or guardian chooses for such child treatment by prayers through spiritual means alone in lieu of medical treatment shall be deemed for that reason alone to be neglected or lack parental care necessary for his health and well-being21 The origin of the exemptions can be traced to a 1974 Nixon administration federal child abuse law: the Child Abuse Prevention and Treatment Act (CAPTA). The Act itself did not have religious exemptions but the Department of Health, Education and Welfare premised federal funding for state child protection programs on states adding religious exemptions.22 This requirement was largely influenced by two Nixon advisors, John Ehrlichman and J R Haldeman, 19 Sandstrom, supra note 1. 20 ID ST § 18-1501. 21 ID ST § 16-1602. 22 Sandstrom, supra note 1. 8who were members of the Christian Science Church, a faith-healing sect.23 Christian Scientists in general had been lobbying for the inclusion of such exemptions during the 1970s in response to the manslaughter conviction of Christian Scientist Dorothy Sheridan in 1967 for relying solely on prayer when her daughter contracted pneumonia.24 The influence of Christian Science on the exemptions is especially evident in the statutes of three states--Arizona, Connecticut, and Washington--that explicitly specify that Christian Science treatment is not neglect.25 Other states specify that the faith treatment must be through a “recognized” religion, which presumably confines the reach of the exemption to popular bodies of faith who hold faith-healing beliefs such as the Christian Science Church or the Idaho-based Followers of Christ.26 In practice this language arguably limits the exemption to Christian Scientists,27 creating both Equal Protection and Establishment Clause issues. CAPTA’s requirement of religious exemptions for federal funding was removed in 1983,28 but states have evidently been slow and/or hesitant to repeal the exemptions. It is also important to note the differences and interplay between the criminal and civil exemptions. While criminal child neglect cases involve prosecutions of parents who cause serious harm to their children, civil cases revolve around the state’s ability to provide improved care for a particular child such as by ordering medical treatment and/or taking custody of the child. Each type of law can have its own exemption or a state can have an exemption in one area 23 Wilson, supra note 4. 24 Wei Zhu, 5 Questions (and answers) About Religious Exemptions for Vaccines, THE IMMANENT FRAME, May 22, 2015, https://tif.ssrc.org/2015/05/22/5-questions-and-answers-about-religious-exemptions-for-vaccines/#:~:text=In%20response%2C%20Christian%20Scientists%20began,child%20neglect%20law%20in%201971. 25 Sandstrom, supra note 1. 26 Id. 27 Eric W. Treene, Prayer-Treatment Exemptions to Child Abuse and Neglect Statutes, 30 HARV. J. ON LEGIS. 135, 143-144 (1993). 28 Id. at 141. 9but not the other. But the difference between the laws does not forestall the use of one type of exemption in a parallel type of case. Parents in criminal cases have claimed that the existence of a civil exemption creates a due process concern because the existence of an exemption in one area of the law but not the other sends “mixed signals” about the state of the law and therefore deprives them of fair notice about the legality of their prayer treatment.29 This claim has been met with mixed results.30 The criminal exemptions have been used successfully by parents. In State v. McKown, for example, the McKowns were Christian Science parents who were indicted for second-degree manslaughter for the death of their 11-year-old son from diabetic ketoacidosis.31 The McKowns had used the spiritual healing method as the exclusive treatment throughout the child’s final illness.32 The Supreme Court of Minnesota held that the indictment violated the parents’ Due Process Clause rights since they genuinely depended on the spiritual treatment and prayer exception in Minnesota’s criminal statute 609.378.33 Note that while the case is from 1991, the law still contains the same spiritual exemption.34 Once again highlighting the importance of the Christian Science Church’s influence on the exemptions, less successful challenges often arise simply because the defendant’s faith did not qualify as a “recognized” faith for the purpose of the state statute. Such was the case in State v. Crank, where the defendant’s daughter died at fifteen from a rare form of cancer.35 Crank was indicted for child neglect for failure to obtain medical treatment but claimed Tennessee’s 29 James Dwyer, Book Review of the Child Cases: How America’s Religious Exemption Laws Harm Children, at 394 (2015) located at https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2827&context=facpubs. 30 Id. 31 State v. McKown, 475 N.W.2d 63 (Minn. 1991). 32 Id. at 64. 33 Id. at 68-69. 34 MN ST § 609.378. 35 State v. Crank, 468 S.W.3d 15 (Tenn. 2015). 10 spiritual treatment exemption.36 The trial court denied her the exemption after finding that her faith was not a recognized denomination, and the Tennessee Supreme Court upheld the conviction against her challenge of the recognized denomination requirement as unconstitutionally vague.37 IV. Are the Exemptions Necessary Under the Free Exercise Clause? Examining How a Free Exercise Clause Claim To a Child Neglect Law Without a Religious Exemption Would Play Out A determination of whether these religious exemptions are necessary to satisfy the Free Exercise Clause requires an examination of a hypothetical free exercise challenge to a law without a religious exemption. This section will therefore analyze whether, were there no religious exemption to Idaho 18-1501 excerpted above, a court would mandate one. The first thing to determine in a challenge to the statute is what level of scrutiny applies. As concluded earlier in the discussion of Free Exercise Clause doctrine, strict scrutiny will apply whenever the law contains a secular exemption. Strict scrutiny will also apply in a state that has adopted a state version of RFRA. If neither the secular exemption nor a state RFRA applies, the challenge will proceed under rational basis review as mandated by Employment Division v. Smith.38 Starting with the first consideration, it is vital to note that 18-1501 has no secular exemptions.39 Sections 1-3 of the law define instances that lead to criminal liability, while section (5) defines willfully.40 Within the context of the law a religious exemption would stand out as a sole exemption to an otherwise generally applicable statute. Without the religious exemption, the law is facially neutral with respect to religion and generally applicable. Thus, 18-1501 is not 36 Id. 37 Id. at 20-21; 24-27. 38 Smith, 494 U.S. at 872. 39 ID ST § 18-1501. 40 Id. 11 within the purview of Fulton/Tandon and not automatically subject to strict scrutiny for this reason. Furthermore, there is no indication that the statute targets religion (the exemption is the only reference to religion and one would have to strain to assert that protecting children from neglect is inherently targeted at religion) so the law can be said to be generally applicable and facially neutral. As a result the statute would be subject to rational basis review under Smith. While this concludes the analysis for this step of the Idaho hypothetical, since this paper concerns the exemptions throughout the many states it should be noted that the same logic applies to other states’ exemptions which generally do not have secular exemptions either.41 However, because Idaho has enacted state RFRA laws,42 a parent’s claim for an exemption to 18-1501 would enjoy strict scrutiny protection. RFRA laws mandate that any law that substantially burdens a sincerely held religious belief must be supported by a narrowly tailored compelling government interest.43 Here, faith healing would likely count as a genuinely held belief and imprisoning parents for neglect would constitute substantial burden on belief. Under RFRA the state cannot force parents to choose between raising their children according to their healing beliefs and staying out of prison without a compelling government interest. Thus, a court would determine whether there is a compelling government interest and no less restrictive 41 See, e.g., MN ST § 609.378; WA ST § 26.44.020 (21); GA ST § 19-7-5. 42 ID ST § 73-402 FREE EXERCISE OF RELIGION PROTECTED. (1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral. (2) Except as provided in subsection (3) of this section, government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability. (3) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both: (a) Essential to further a compelling governmental interest; (b) The least restrictive means of furthering that compelling governmental interest. (4) A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this chapter against a government shall recover attorney’s fees and costs. (5) In this section, the term "substantially burden" is intended solely to ensure that this chapter is not triggered by trivial, technical or de minimis infractions. 43 Id; 42 U.S.C. 21B. 12 alternative to denying the exemption. While arguing that a law satisfies strict scrutiny is always an uphill battle, this standard would not automatically mandate an exemption to the neglect law. Defenders of a law with no religious exemption would likely argue that protecting the health and safety of children is a compelling government interest,44 no matter the religious beliefs of their parents. They could then proceed to argue that there is no less restrictive alternative to protecting children of religious parents from treatable diseases than by ensuring they receive quality medical care. That being said, overcoming strict scrutiny is quite difficult, and a court may find a possible less restrictive alternative and hold that the religious exemption is mandated. But see the discussion in section VI for how precedent establishing special protection for children could overcome strict scrutiny. Once again while this concludes the Idaho statute hypothetical, it’s important to consider how a free exercise challenge would play out in a non-RFRA state. In Georgia, for example, where there is no enacted RFRA legislation and the child neglect law contains no secular exemptions,45 a free exercise demand for a religious exemption would proceed under rational basis review. In such a case defenders of the law would merely have to show that the lack of exemption is rationally related to a legitimate government interest. It would seem to be a strong argument to posit that protecting the health and safety of children is a legitimate state interest, and that denying exemptions that permit children’s ailments to go untreated represents a rational relation to this goal. Just as in Smith where the Supreme Court held that the plaintiffs were not entitled to an exemption from a facially neutral and generally applicable controlled substance law, a Georgia court would likely rule that Christian Science parents are not entitled to an 44 See Denver Area Educational Telecommunications Consortium v. F.C.C., 518 U.S. 727 (1996); Hiller v. Fausey, 588 Pa. 342 (Pa. 2006), Broecker v. New York City Department of Education, 573 F.Supp.3d 878 (E.D.N.Y. 2021). 45 GA ST § 19-7-5. 13 exemption from a facially neutral and generally applicable child neglect law. Hence Georgia’s current religious exemption to child abuse is not necessitated by the Free Exercise Clause. In sum, because the child neglect laws do not have secular exemptions, the level of scrutiny applied to a free exercise claim for a religious exemption, and therefore its probable outcome, likely hinges on whether the claim is brought in a state that has adopted RFRA. The exemptions that currently exist in a majority of states are therefore not required by the Free Exercise Clause, but were enacted through permissible discretion of the state legislatures. This permissibility, however, is premised on the exemptions not violating the Establishment Clause, the question this paper now turns to. V. Do the Existing State Child Neglect Exemptions Violate the Establishment Clause? The First Amendment’s Establishment Clause prohibits the establishment of a state religion in the United States as well as the state favoring of one religion over another. Thus a potential challenge arises to the neglect exemptions as unconstitutionally advancing religion, particularly the Christian Science Church, by exempting only members from serious criminal and/or civil penalties. As alluded to in section II, Kennedy has weakened Establishment Clause challenges by abandoning Lemon, but there are other lines of cases that bolster Establishment Clause challenges. In Thornton v. Caldor, the Supreme Court struck down a Connecticut statute that provided Sabbath observers with an unqualified right not to work on their chosen Sabbath.46 It emphasized that those observing the Sabbath had an advantage over other employees and burdened employers.47 The unqualified nature of the statute was a key consideration: the statute made no exception for when observers could take crucial days off, nor for substantial economic 46 Estate of Thornton v. Caldor, 472 U.S. 703 (1985). 47 Id. at 709. 14 burdens on the employer and employees, nor for when the employer made reasonable accommodations.48 Also of note is Larson v. Valente, which held that laws that facially discriminate among religions are subject to strict scrutiny.49 There, the Supreme Court struck down a Minnesota law that imposed registration requirements only on those religious organizations that solicited the majority of their funds from non-members.50 This discriminatory regulation, the Court reasoned, constituted denominational preference in violation of the Establishment Clause and was not narrowly tailored to the government goal of protecting citizens from fraudulent solicitation.51 The logic of Thornton and Larson applies well to the religious neglect exemptions. Just as the statute in Thornton provided an unqualified right not to work, note that the language of the exemptions provides an unqualified defense to neglect prosecutions and lawsuits. The exemptions leave no room for some combination of faith and medical healing, nor do they even suggest a mitigation of charges, sentencing, or liability, but instead create a complete bar to prosecution.52 Indeed, the exemptions work as an absolute privilege for prayer healing just like the privileging of the Sabbath in Thornton. The exemptions grant religious parents that rely on purely spiritual healing a substantial privilege over secular parents in neglect cases, and children are certainly burdened by the weakening of laws meant to protect their health and safety. But perhaps the stronger establishment argument is that the exemptions discriminate among religions under Larson. Section III highlighted the close ties between the exemptions and the Christian Science Church. Three states specify the sect by name,53 and Washington actually limits the 48 Id. 49 Larson v. Valente, 456 U.S. 228 (1982). 50 Id. 51 Id. at 246-248. 52 ID ST § 18-1501; MN ST § 609.378; WA ST § 26.44.020 (21); GA ST § 19-7-5. 53 Sandstrom, supra note 1. 15 exemption to Christian Science.54 Even besides explicit language, as alluded to the exemptions were adopted in the background of the Christian Science Church lobbying for them and two Christian Scientist presidential advisors premising federal funding on the insertion of them. This body of evidence would create a strong case that the exemption’s purpose was to further a particular religion, a direct violation of the Establishment Clause. Note that Larson did not require this level of blatant favoritism for a particular religion, but struck down the law simply because a general qualification applied it to some churches but not others. This seems to place the case squarely in comparison to the states who premise their exemptions on qualifications like “recognized church” or “bona fide religion.”55 This reasoning would mean that defenders of the neglect exemptions would face a strict scrutiny test and have to show a narrowly tailored compelling government interest in the exemption. While their likely purported interest of protecting the free exercise rights of those who believe in faith healing is compelling, a court would likely find that the exemptions are not narrowly tailored to this goal for all of the reasons discussed in this paragraph: the unqualified nature of the language constitutes an overinclusive lack of tailoring to the specific goal and the denominational preference is underinclusive to the interest. Hence, an Establishment Clause challenge to some of the state neglect religious exemptions has a strong likelihood of success. Applying Larson to religious exemptions that directly benefit the Christian Science Church is not simply a hypothetical: there is direct precedent for it from Children's Healthcare Is a Legal Duty, Inc. v. Vladeck.56 There, the plaintiffs challenged Medicare and Medicaid exemptions that permitted Christian Science sanitoria to participate and receive benefits while 54 WA ST § 26.44.020 (21). 55 GA ST § 19-7-5; PA ST 23 Pa. C.S.A. § 6304(b). 56 Children's Healthcare Is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466 (1996). 16 being exempt from regulatory standards to qualify as a hospital or skilled nursing facility.57 The court found clear denominational preference in the explicit address of a particular religion and thus that Larson mandated strict scrutiny.58 On application of this scrutiny, the court found that accommodating religious beliefs, while not required by the Free Exercise Clause in this context, was a sufficiently compelling interest.59 But in its review of close fit it found that the fact that the exemptions included only Christian Science sanitoria meant the exemption failed the requirement, noting that the compelling interest was the accommodation of the free exercise of religion, not the accommodation of the Christian Science Church.60 A challenge to the neglect exemptions could proceed in a similar fashion. A court could find that the history behind the exemptions as well as the explicit statutory language mentioning Christian Science and the more ambiguous language limiting the exemption to recognized and bona fide groups evidences denominational preference that both commands strict scrutiny and represents a lack of close fit to the interest of general religious accommodation. Although admittedly the denominational preference is far more blatant in Vladeck, this does not prevent challengers to the neglect exemptions from using the case in their Establishment Clause claims as long as they emphasize the legislative history and statutory language which together strongly evidence denominational preference. VI. An Alternative Theory to Challenge the Neglect Exemptions: Special Protection Afforded to Children One’s takeaway from the Free Exercise Clause discussion in section IV may be that the law affords extensive protection to religious exercise at the expense of children’s safety in this 57 Id. at 1469. 58 Id. at 1473. 59 Id. at 1478. 60 Id. at 1479. 17 case. But there is strong precedent to support the idea that, when children are the potential victims of a free exercise claim, courts have broader authority to deny otherwise strong claims. This idea of the state’s special role in protecting children may provide the tailored compelling governmental interest necessary to overcome strict scrutiny in RFRA states and hold parents accountable for neglect. In Prince v. Massachusetts, the defendant was a Jehovah’s Witness charged with violating child labor laws after she enlisted her children in helping her sell religious materials.61 The Supreme Court upheld the conviction, ruling that the state has enhanced authority over the regulation of children, and that in this case that authority superseded the important rights of freedom of religion and freedom of parental choices.62 It made a note of the special evil of child labor and of the risks inherent in the potentially controversial practice of street preaching.63 While the Court did not explicitly use a strict scrutiny standard and the case was decided before Sherbert v. Verner which established the need for a compelling interest, the opinion’s language makes clear the Court applied a precursor variation of strict scrutiny.64 This theory of broader authority when it comes to children could prove very helpful to disputing the free exercise claims of religious parents to refuse medical treatment for their children. While, as previously concluded, the existence of religious exemptions to neglect statutes is protected by strict scrutiny in RFRA states, a party could claim that under Prince the harm to children grants the state a compelling interest such that even under strict scrutiny a parent’s free exercise claim would be overcome and fail. Considering the fact that the Prince opinion harped on the “evils” of the “crippling effects of child employment” and was concerned 61 Prince v. Massachusetts, 321 U.S. 158, 159-160 (1944). 62 Id. at 166-168. 63 Id. at 168-170. 64 See id. at 167 (“when state action impinges upon a claimed religious freedom, it must fall unless shown to be necessary for or conducive to the child’s protection against some clear and present danger”). 18 that street preaching was “wholly inappropriate for children,”65 one can imagine that the evils associated with letting children die from treatable medical conditions has even more potential to override free exercise concerns. Indeed, one additional Prince quotation rings especially powerful as applied to the neglect exemptions: “[p]arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children.”66 While the difficulty of overcoming strict scrutiny has been alluded to a few times in this paper, cases such as Prince demonstrate that it is not impossible as long as the government has a compelling enough interest, and the neglect statutes could prove to be just that. It is a noble goal to protect religious freedom, but precedential cases that emphasize the special importance of defending the welfare of children may be able to trump even the strongest protections of religious accommodation. VII. Religious Exemptions to Vaccination Mandates – The Exemptions Generally All fifty states require certain vaccines for students to attend school, while forty-five states and Washington D.C. provide religious exemptions for them.67 At the heart of the scientific purpose of school vaccination requirements is herd immunity. This occurs when a high enough proportion of a particular population is immunized from a disease such that it cannot spread into an epidemic in the population.68 In this way the goal of mass vaccination is to protect the entire population: those vaccinated become immunized and those not vaccinated are still less likely to contract the disease from a rapid spread through the population. Preventing the epidemic with herd immunity not only prevents the suffering of those that would contract the 65 Id. at 168, 170. 66 Id. at 170. 67 Williams, supra note 2. 68 Anthony Ciolli, Mandatory School Vaccinations: The Role of Tort Law, NATIONAL LIBRARY OF MEDICINE, September 2008, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2553651/. 19 given disease but costs less than treating massive numbers of sick patients.69 Because herd immunity protects the unvaccinated as well, a vaccination mandate program can accommodate small numbers of objecting parents; but increasing numbers of exercised exemptions make the population vulnerable. A study of the state with the highest percentage of exercised exemptions, Colorado at the time, found that the rates of measles and pertussis in vaccinated children increased to relative risks of 1.6 and 1.9 respectively, while unvaccinated children were twenty-two times more likely to acquire measles and six times more likely to acquire pertussis than those vaccinated.70 All of this is to say that the state has a strong interest in vaccine mandates in order to control the spread of disease to both prevent suffering/death and minimize healthcare costs. Vaccination mandates have been upheld by the Supreme Court as early as 1905. Jacobson v. Massachusetts was a challenge to a state law allowing cities to mandate smallpox vaccines of its citizens.71 The Court rejected the argument that the law infringed on constitutional liberties, holding that states may authorize regulation that aims to protect the good of its population at the expense of individual freedom.72 Cities have a right to protect themselves from disease and constitutionally guaranteed personal autonomy is not absolute.73 The Court then extended the logic by upholding the exclusion of students from school who refuse to vaccinate in 1922 in Zucht v. King,74 and since then there has been little question as to the legality of school vaccine mandates. 69 Id. 70 Erin Flanagan-Klygis, School Vaccination Laws, AMA JOURNAL OF ETHICS, November 2003, https://journalofethics.ama-assn.org/article/school-vaccination-laws/2003-11. 71 Jacobson v. Massachusetts, 197 U.S. 11 (1905). 72 Id. at 26. 73 Id. at 26-27. 74 Zucht v. King, 260 U.S. 174 (1922). 20 As for the religious exemptions, in a strikingly similar history to the neglect exemptions, the origins can be traced back to influence from the Christian Science Church. The Church lobbied for religious exemptions to the new vaccine mandates in the time period directly after Jacobson.75 This campaign was not successful initially, but in the 1960s during outbreaks of polio and measles, New York passed a new school vaccination law and added a religious exemption to appease the Christian Science community.76 The bill became the model for school vaccination mandates, such that when more states adopted their own versions they adopted them with the religious exemption.77 There is some variation in how states define the religion to be invoked, with some requiring the “recognized” characteristic similar to neglect exemptions, others conducting an evaluation of genuineness, and some simply take the submission at face value.78 The Supreme Court has yet to address the constitutionality of religious exemptions to vaccine mandates. It is crucial to note that all states offer medical exemptions to their vaccine laws.79 Additionally, fifteen states allow personal belief exemptions, which permit parents to opt-out of vaccination requirements simply because they are philosophically opposed.80 New Jersey’s N.J.A.C. 8:57-4.2 and N.J.S.A. 26:1A-9.1 serve as quality examples of a vaccine mandate and religious exemption, respectively: A principal, director or other person in charge of a school, preschool, or child care facility shall not knowingly admit or retain any child whose parent or guardian has not submitted acceptable evidence of the child's immunization, according to the schedules specified in this subchapter.81 75 Andrew Meriwether, The Complicated History of Religious Exemptions to Vaccines, WBEZCHICAGO (NPR), September 16, 2021, https://www.wbez.org/stories/the-complicated-history-of-religious-exemptions-to-vaccines/d86d02a3-5ec3-49ef-af8a-48195fd4df1c. 76 Id. 77 Id. 78 Alicia Novak, The Religious and Philosophical Exemptions to State Compelled Vaccination: Constitutional and Other Challenges, 7 U. PA. J. CONST. L. 1101, 1107-1108 (2005) located at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1322&context=jcl. 79 Williams, supra note 2. 80 Id. 81 N.J.A.C. 8:57-4.2. 21 Provisions in the State Sanitary Code in implementation of this act shall provide for exemption for pupils from mandatory immunization if the parent or guardian of the pupil objects thereto in a written statement signed by the parent or guardian upon the ground that the proposed immunization interferes with the free exercise of the pupil's religious rights. This exemption may be suspended by the State Commissioner of Health during the existence of an emergency as determined by the State Commissioner of Health.82 How often are the religious exemptions used? A 2019 analysis from The American Academy of Pediatrics found a figure of 1.7% incidence of the exemption in Kindergartners.83 VIII. Are the Vaccine Exemptions Necessary Under the Free Exercise Clause? Once again this paper will analyze how a free exercise claim to a vaccine mandate law would play out if there were no religious exemption. The law remains the same and the Fulton/Tandon framework remains in force: a secular exemption in the law will demand strict scrutiny for a lack of a religious exemption. And as stated in the previous section, every state’s vaccine law contains a medical exemption. New Jersey’s medical exemption is codified in 8:57-4.3: (a) A child shall not be required to have any specific immunization(s) which are medically contraindicated. (b) A written statement submitted to the school, preschool, or child care center from a physician licensed to practice medicine or osteopathy or an advanced practice nurse…indicating that an immunization is medically contraindicated for a specific period of time, and the reason(s) for the medical contraindication, based upon valid medical reasons as enumerated by the Advisory Committee on Immunization Practices (ACIP) of the United States Public Health Service or the American Academy of Pediatrics (AAP) guidelines, will exempt a pupil from the specific immunization requirement for the stated period of time.84 Just like the medical exemption for skin conditions to the no-beard policy in Fraternal Order of Police,85 New Jersey’s school vaccination requirement contains a medical exemption for 82 N.J.S.A. 26:1A-9.1. 83 Williams, supra note 2. 84 NJ ADC 8:57-4.3. 85 Fraternal Order of Police, 170 F.3d at 360. 22 contraindicated children. This puts the law within the scope of the case and mandates that a lack of religious exemption would need to survive strict scrutiny. Smith is not applicable because the law would not be facially neutral and generally applicable. How would a case under such a standard play out? Defenders of a vaccination law with no religious exemption would argue that the state has a compelling interest in preventing the spread of disease; as the scientific background discussion in section VII made clear the government has a strong interest in creating herd immunity, and a court is unlikely to disagree. The narrowly tailored prong may be a closer call. Perhaps the state could argue that medical exemptions are tailored to the goal of health and safety while religious exemptions are not. The Supreme Court has generally found the possibility of a less restrictive alternative in their cases applying strict scrutiny to the lack of a religious exemption in the face of secular exemptions.86 For example in Burwell v. Hobby Lobby the Court struck down a provision of the Affordable Care Act that forced the religious employer plaintiff to provide contraceptives to its employees that the employer was religiously opposed to; and in Holt v. Hobbs the Court ruled unconstitutional an Arkansas Department of Corrections policy that prohibited inmates from growing facial hair.87 But the cases are distinguishable: in both cases the Court found the possibility of a less restrictive alternative in part because they found that this possible accommodation of religious exercise did not create third-party harms.88 The employees in Hobby Lobby could receive their contraceptives from their insurer instead of their employer under the program, and the plaintiff prisoner’s beard in Holt harmed no one.89 Parents exercising vaccine opt-outs, however, create a direct risk to third parties by threatening herd immunity. If the anti- 86 See Burwell v. Hobby Lobby, 573 U.S. 682 (2014); Holt v. Hobbs, 574 U.S. 352 (2015). 87 Id. 88 Hobby Lobby, 573 U.S. at 732; Holt, 574 U.S. at 365-367. 89 Hobby Lobby, 573 U.S. at 731; Holt, 574 U.S. at 363-367. 23 vaccine movement grows large enough and the percentages of unvaccinated children increases, the entire population is vulnerable to an epidemic of the given disease(s). Perhaps this risk is enough to take the case outside the scope of cases like Holt and Hobby Lobby and make a lack of religious exemption overcome strict scrutiny. (But note that states with philosophical exemptions would have a very difficult case in overcoming strict scrutiny since the philosophical exemptions are not narrowly tailored to health and safety like the medical exemptions are; in these states a religious exemption would almost certainly be mandated). In sum, the medical exemptions in state vaccine mandates would require courts to employ strict scrutiny for a lack of religious exemption, but a free exercise case would still be a close one depending on whether the Court would determine that the mandates represent the least restrictive means to prevent the substantial risks they are aimed at. IX. Do the Vaccination Exemptions Violate the Establishment Clause? An Establishment Clause challenge in this context would be based on similar grounds to that of the neglect exemptions, but is likely a weaker case. The exemptions arguably privilege religious parents who oppose vaccinations over non-religious parents who oppose them, allow religious parents’ children to benefit from herd immunity without the perceived risks of vaccination that opposers fear, and/or discriminate among religious beliefs by requiring that the religion be “recognized.” Thornton and Larson are once again relevant. In regards to the Thornton analysis, a detail that makes the vaccine establishment case weaker is that, unlike the religious neglect exemptions, the exemptions here are not always unqualified. Note the last sentence of the New Jersey exemption above: the exemption may be suspended during emergencies. This makes the exemption quintessentially qualified, meaning it lacks a quality that made for an important part of the argument in Thornton. But note that not 24 every state’s exemption is qualified so this prong may vary by state.90 The privilege/burden argument, on the other hand, still applies: religious parents who oppose vaccines are given an advantage over non-religious opposers, and certainly the weakening of the goal of herd immunity burdens the entire population. As for a Larson analysis, just like the neglect exemptions the vaccine exemptions have close historical ties to the Christian Science Church. The vaccine exemptions do not explicitly refer to the sect like some neglect exemptions do, but are still a product of lobbying from the Church. Litigants bringing an Establishment Clause challenge could argue that the inclusion of the exemptions to appease this lobbying represents unconstitutional favoritism of a particular church. The states that limit the exemption to “recognized” religions once again run into the discrimination between religions issue that was at the heart of Larson. The bottom line is that the vaccine exemptions have some but not all of the qualities that made for a strong argument that the neglect exemptions violate the Establishment Clause. As a result the issue is a close one, and indeed while the Supreme Court has yet to address it, state courts have come to opposite conclusions.91 Until the Court provides guidance, the constitutionality of these exemptions remains contested. There is precedent holding that the exemptions violate the Establishment Clause, but Kennedy and its abandonment of the Lemon test has made it largely moot. Still, the cases may be informative as to how an establishment challenge would play out post-Kennedy. In Sherr v. Northport-East Northport Union Free School Dist., for example, the plaintiff parents challenged the requirement that they be “bona fide members of a recognized religious organization” in order 90 See NC ST § 130A-157; MN ST § 121A.15(3). 91 See Novak, supra note 65 at 1112-115 (Comparing and contrasting Sherr v. Northport-East Union Free School District (holding that the “recognized” qualification of the exemptions violates the Establishment Clause under the obsolete Lemon test), Davis v. State (ruling that the recognized qualification violates Establishment Clause), Kleid v. Bd. Of Educ. (holding that the recognized qualification does not violate the Establishment Clause)). 25 to qualify for New York’s religious exemption to their school vaccine mandate.92 The district court upheld the challenge and ruled that the statute violated the Establishment Clause, but they relied on Lemon to do so.93 It held that the exemption violated the second prong of the Lemon test by inhibiting the religious exercise of those parents who are not a part of a recognized sect as well as the third prong of the test by obligating the state to determine the validity of religious organizations.94 Note here that the cure for such an establishment violation could be striking the entire exemption, or it could be to make the exemption broader by simply requiring that claimants assert their sincere religious belief. In other words, Larson violations can have the unintended consequence of exempting more religious individuals, not fewer. In any case, while this Lemon test the court employed is no longer law, Sherr demonstrates the logic that an establishment challenge to the vaccine religious exemptions could proceed on. Of course after Kennedy’s weakening of the Establishment Clause this logic would need to overcome a stronger standard yet to be fully defined. Similar post-Kennedy vaccine exemption establishment cases are harder to come by in the short two-year period since the decision and they generally involve challenges to COVID-19 vaccine mandates for employees as opposed to students (only two states mandated COVID vaccines for students95). Still, these cases can be informative about how courts will apply Kennedy to religious exemptions to vaccine laws in the parent/school setting. For example in Kane v. De Blasio, the plaintiffs challenged New York City’s mandate that all Department of Education staff receive the COVID-19 vaccine on religious grounds.96 Their primary argument was based on free exercise, but they also raised an 92 Sherr v. Northport-East Northport Union Free School Dist., 672 F.Supp. 81, 84 (E.D.N.Y 1987). 93 Id. at 89-90. 94 Id. 95 Zack Gould, States Take Action on Vaccine Mandates in Schools, NATIONAL ACADEMY FOR STATE HEALTH POLICY, November 9, 2021, https://nashp.org/states-take-action-on-vaccine-mandates-in-schools/#:~:text=Only%20two%20states%20(California%20and,are%20vaccinated%20to%20attend%20school.;. 96 Kane v. De Blasio, 623 F.Supp. 3d 339, 346 (S.D.N.Y 2022). 26 establishment challenge, arguing that the statute created denominational preference97 (the religious accommodation had a typical “recognized” qualification and even explicitly mentioned Christian Science98). Denying the argument, the court related Kennedy’s historical practices and understandings test to the existence of the long history of vaccine mandates.99 Hence, early indications are that post-Kennedy jurisprudence will not lend well to the Larson-type establishment challenge to vaccine religious exemptions based on the theory that the “recognized” qualification discriminates among religions. X. Interplay Between the Clauses While this paper has analyzed the Free Exercise and Establishment Clauses separately, there is often a great deal of interaction between the two in religion cases. One can easily see how the two guarantees are often in tension with one another: where exactly is the line between the government supporting religious exercise and supporting religion itself? This topic is no exception. Say, for example, that the Free Exercise Clause mandated a religious exemption from a statute. Such a ruling would strengthen an Establishment challenge to the qualifications that the given religion must be Christian Science or a “recognized” religion because if a court found that a religious exemption is necessary to satisfy the Free Exercise Clause then that guarantee must apply across the board to any sincere religious parent. In this way a religious parent from a non-recognized religion could actually utilize both clauses together to argue for broader religious protection. On the other hand, challengers to the religious exemptions could similarly rely on both clauses by emphasizing the state’s interest in child/public safety under the compelling 97 Id. at 358. 98 Id. at 348. 99 Id. at 359. 27 interest prong of free exercise doctrine as well as under the third-party harms concept of establishment doctrine. XI. Conclusion The religious exemptions to neglect statutes and vaccine mandates present serious health concerns, but they have strong protection from the First Amendment and state RFRAs. This protection has been strengthened recently with developments in religious doctrine, namely the most favored nation concept and Kennedy’s narrowing of the Establishment Clause. These factors may combine to keep the exemptions firmly in place, but there are also arguments to be had that the exemptions are not necessitated by the Free Exercise Clause and/or that they violate the Establishment Clause. Starting with the neglect exemptions, in states without RFRA legislation the lack of any secular exemptions means the religious exemptions are not necessary to satisfy the Free Exercise Clause. Since the neglect laws are neutral and generally applicable, under Smith the state need only show that they are rationally related to a government interest, which protecting children’s health and safety certainly is. In RFRA states, however, the exemptions may be necessary since religious exercise is protected by strict scrutiny, but opponents of the exemptions could point to the state’s special interest in protecting children in order to overcome parents’ protected rights. There is also a strong case to be had that the exemptions violate the Establishment Clause based on the exemptions’ unqualified nature, close ties to the Christian Science Church, and limitation to “recognized” religions. 28 As for the vaccine exemptions, the existence of medical exemptions makes religious exemptions protected by strict scrutiny, but opponents of the accommodation could rely on the considerable risk of third-party harms to overcome the standard. An establishment challenge to the vaccine accommodation is not as strong as the neglect case, but could still rely on the discriminatory “recognized” qualification; while not much post-Kennedy doctrine exists, the early precedent does not support such a challenge. The future of these exemptions may further be determined by the development of Establishment Clause doctrine in light of Kennedy as well as by the building public outcry to some of the more tragic cases of children falling victim to treatable illnesses. While protecting the free exercise of religion is a vital concern, from a legal, moral, and logical point of view this free exercise cannot override fundamental secular concerns such as quality care for children and public safety from disease. The principles of the current law elucidated in this paper act as the guiding principle for where exactly to draw this line. |
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