By Shaun P. McFall, Contributing Writer
August 18, 2008
“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”
Government accommodation of religious practice has long been recognized as essential to religious liberty in the United States. When specific religious practices are unduly burdened by state policies or laws, it often falls on the government to carve out narrowly construed exemptions or accommodations. Whether secured through free-exercise litigation, legislative action or executive regulatory policy, religious accommodations have protected religious liberty for whole segments of the population that might otherwise have been denied the right to practice their faith.
Even in the controversial 1990 U.S. Supreme Court decision Employment Division v. Smith (concerning religious use of peyote), which many legal experts believe significantly reduced free-exercise rights, the majority opinion was careful to preserve the principle of legislative accommodation. Writing for the majority, Justice Antonin Scalia made it clear that although the free-exercise clause may not require the state to provide religious exemptions from certain neutral, generally applicable laws (such as those governing controlled substances), the legislature may enact such narrow accommodations without violating the establishment clause.
Although religious accommodation has a rich history in the United States, it is a principle that is often controversial and difficult to apply. Close questions arise when religious claims are weighed against state interests. On issues ranging from Native American free-exercise rights on federal land to parental requests for curricular opt-outs in public schools on religious grounds, the government has claimed important and overriding interests in denying accommodations (see Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) and Shane Ramsey, Opting Out of Public School Curricula: Free Exercise and Establishment Clause Implications, 33 Fla. St. U.L. Rev. 1199, (2006)).
The issue of religious exemptions to state-compelled vaccinations is an example of such a close question. Inextricably linked to such vital and occasionally competing interests as free exercise of religion, parental rights, public health, bodily autonomy and compulsory education, religious claims for exemptions to state-compelled vaccinations demonstrate the difficult challenge of balancing competing claims. Are government interests in protecting public health sufficiently compelling to override the free-exercise rights of children and parents who are religiously opposed to some or all vaccinations? How do the rights of parents and the bodily autonomy of children factor into the debate? In what ways does granting religious exemptions complicate our system of compulsory education? These questions form the heart of this difficult controversy.
States generally apply one of three standards for evaluating religious-exemption requests concerning vaccinations.
1. Parents requesting the exemption must be a member of a recognized religious organization that is opposed to vaccination.
2. Parents must demonstrate a sincere and genuinely held religious belief that opposes one or all vaccinations.
3. Parents must simply sign a statement confirming that they are religiously opposed to vaccination and would like an exemption.
Because all 50 states have some required immunization procedures for entrance into public schools, millions of young Americans every year are compelled by their states to receive certain vaccinations. The control exercised by the state in instituting these mandatory vaccination requirements raises a range of important issues. This analysis focuses solely on the question of religious exemptions to mandatory vaccinations.
Proponents of religious exemptions to vaccination requirements offer a number of key arguments. First and foremost, they argue that the free-exercise clause of the First Amendment mandates state accommodation for members of religious groups who object to the vaccinations on religious grounds. The free-exercise argument follows the logic that requiring children to perform an action (in this case to receive a vaccination) that is abhorrent to their religious beliefs and/or practices places a significant and undue burden on their free-exercise rights. If this free-exercise argument were accepted by the courts, then it would be unconstitutional for a state to institute mandatory vaccinations without providing at least some form of religious exemption.
Supporters of religious exemptions also invoke the establishment clause to claim that government neutrality requires religious accommodation when the state offers secular exemptions. Because all states maintain a medical exemption from mandatory vaccinations, proponents argue, a religious exemption must also be allowed. They argue that including a secular exemption but excluding a religious one disfavors religion, thus violating the strict state neutrality between religion and non-religion required by the First Amendment.
Many advocates for religious exemptions also claim that constitutionally protected parental rights give parents the choice of whether or not to vaccinate. Parents, they argue, have a fundamental right to determine the education and upbringing of their children (as reported in Rebecca E. Skov, Examining Mandatory HPV Vaccination for All School-Aged Children, 62 Food Drug L.J. 805, (2007), see also the 1925 Supreme Court decision Pierce v. Society of Sisters). A key Supreme Court decision used to support this argument is Wisconsin v. Yoder. In that 1972 case, an Amish family claimed that compulsory secondary education laws violated their right to free exercise because the religious well-being of their community depended on their teenage children’s remaining home from school so that they could work and learn in the community. Some legal experts maintain that Yoder, in combination with other cases, establishes fundamental parental rights that join with free-exercise claims to form compelling legal grounds for challenging public school policies. It is important to note, however, that recent jurisprudence has recognized the holding of the Yoder Court as limited, and has been reluctant to characterize parental rights as fundamental and compelling (a key example of this trend is Parker v. Hurley, 514 F. 3d 87 (1st Cir. 2008)).
Some exemption advocates question the legal and medical necessity of vaccinations in the first place, noting the antiquated nature of the legal precedents that establish a state’s right to require vaccination and drawing distinctions between the time period of the precedents and the present (for further discussion see Skov, Examining Mandatory, at 826). As discussed below, a state’s right to require vaccination was first established in the 1905 Supreme Court decision in Jacobson v. Massachusetts. In that era, smallpox infection rates were staggering, and the danger the disease posed to the public health was clear and impossible to ignore. Recognizing the severity of the danger, the Court found that a state had the right, under its police power, to require vaccination against smallpox. Many pro-exemption advocates find it problematic that those opposed to religious exemptions rely on a precedent established 100 years ago, and point to the fact that there does not exist today a disease prevented by vaccination that poses a threat to the public health that is comparable to that posed by smallpox.
Finally, exemption supporters claim that even if the Constitution does not require states to offer religious exemptions to vaccination requirements, at the very least such exemptions are permissible under the establishment clause and are wise public policies to pursue.
Opponents of religious exemptions to vaccination requirements argue that the Constitution recognizes the state’s compelling interest in protecting and regulating the health of the people (see Alicia Novak, The Religious and Philosophical Exemptions to State-Compelled Vaccination: Constitutional and Other Challenges, 7 U. Pa. J. Const. L. 1101 (April 2005), at 1121-1123). This interest justifies requiring vaccinations for schoolchildren without exemptions. To support this claim, many public-health experts argue that current vaccination requirements have dramatically increased society’s ability to prevent illness, particularly in children. The near-eradication of several potentially deadly diseases stands as a testament to this improvement. The threat of outbreak has not been eliminated, however, and religious exemptions have recently sparked a number of deadly infections that might have been prevented through a more rigorous vaccination requirement. For example, proponents of mandatory vaccinations often cite the 1991 measles outbreak among the Faith Tabernacle community in suburban Pennsylvania. Members of this religious organization requested and were granted religious exemptions from the mandatory measles vaccination for public schoolchildren. In all, six children from that community died as a result of the outbreak.
Instances like the Faith Tabernacle outbreak exhibit the effect of what Alicia Novak has dubbed “the cluster problem.” What Novak is referencing here is the tendency of students who request religious exemptions to live in community with other religiously-exempted students. Such a tendency greatly diminishes the overall community’s immunity, and substantially increases the likelihood of a potentially deadly outbreak.
Many opponents of exemptions argue that allowing some students to opt-out of the vaccination requirements seriously undermines the “herd immunity” of our public schools (for a full discussion of herd immunity, see Skov, Examining Mandatory, at 816). Herd immunity refers to the phenomenon of general populations or communities becoming immune to certain diseases because every member, or almost every member, has undertaken the necessary steps to prevent the disease. Mandatory vaccination has created large school populations that are immune. Exemption opponents claim, however, that with new students entering the population each year who have been exempted from the vaccination requirements, the immunity of the school population is weakening. As the herd immunity weakens, the likelihood of outbreak gradually increases. According to anti-exemption advocates, allowing religious exemptions places previously immune populations in danger of outbreak.
Most public-health arguments rest on the danger religious exemptions pose to the population as a whole. The second argument posed by exemption opponents focuses solely on the unvaccinated population. Critics of religious exemptions claim that such exemptions for young children endanger the children by making them potential martyrs for their parents’ faith (see Novak, The Religious, at 1118-1119). Fully capable adults are certainly allowed to place themselves in danger as a sign of devotion to their faith, but to claim that parents have the right to place their children, who are too young to offer consent, in danger as a sign of faith is a wholly different argument. As the Supreme Court has ruled: ‘“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves”’ (Novak, The Religious, at 1118-1119 citing Prince v. Massachusetts, (1944)). These exemption opponents argue that religious exemptions follow this same logic, unconstitutionally forcing young children to become martyrs for a faith they can neither accept nor deny.
Intimately connected to this martyrdom argument is the claim that allowing religious exemptions strips children of their right to an “‘open future’” (see Novak, The Religious, at 1120-1121). The argument holds that as children, we have the right for our freedom of choice in matters that we are too young to decide to be preserved until adulthood. An often-cited example of this right is the freedom to choose a spouse. We can’t marry as children, but we are protected from forcible betrothal so that we may choose freely when we come of age. Critics of religious exemptions apply this logic to the vaccination question, claiming that the First Amendment does not grant parents the right to deny their children the choice to be devoted to one religion over another, or to be protected against preventable diseases or not. In order for a child’s open future to be preserved, such devotional decisions must be postponed until they reach adulthood.
Similar to the pro-exemption advocates, those opposed to religious exemptions for vaccination requirements look to the First Amendment to bolster their claims. The argument often put forward is an establishment-clause claim. According to this argument, granting religious exemptions only to members of a recognized religious organization, or to those who demonstrate a sincere and genuine religious aversion to vaccination, fails the second two prongs of the Supreme Court’s famous Lemon test and thus offends the First Amendment (see Novak, The Religious, at 1110-1115). Both of these exemption requirements advance one religion at the disadvantage of another, thus violating strict neutrality, while at the same time demanding a high level of government intrusion and investigation into the beliefs of the faithful, thus creating an unconstitutional entanglement of government and religion.
Supplementing the exemption critics’ establishment-clause claim is a 14th Amendment claim arguing that religious exemptions violate the equal-protection clause (see Novak, The Religious, at 1115-1116). The equal-protection clause of the 14th Amendment restricts any state from enacting a law that denies to any person the equal protection of the law. Stated another way, the clause mandates that the state refrain from discriminating between similarly situated individuals, and provides special protection for historically oppressed minorities from laws relying on “suspect classifications” like race and gender. According to exemption critics, statutes that require parents and children to be members of recognized religious denominations to receive exemptions plainly discriminate against those who hold unrecognized religious beliefs, and in turn violate the equal-protection clause. Similarly, they argue that all religious exemptions violate the equal-protection clause by endangering the lives of those students already vaccinated. All children have a right to life and health. Religious exemptions disproportionately endanger the lives and health of already vaccinated students who attend school with unvaccinated students, opponents say, compared with those vaccinated students who happen to have no unvaccinated children at their school. It is this creation of two spheres of protection, those who are endangered by religious exemptions and those who are not, that offends the equal-protection clause. This argument has been particularly strengthened by the Mississippi Supreme Court’s ruling in Brown v. Stone, 378 So. 2d 218 (1979). In that ruling, the court found that Mississippi’s policy of granting certain religious exemptions was an unconstitutional violation of the equal-protection rights of already vaccinated children.
Finally, exemption opponents claim that even if religious exemptions were constitutional, their implementation is too flawed to represent sound public policy (Novak, The Religious, at 1124 and Skov, Examining Mandatory, at 819-820). As discussed above, these advocates argue that only religious exemptions requiring no evaluation of the request can possibly satisfy the establishment clause. Exemption standards that require absolutely no evaluation of the request, however, are too lax and allow for “exemptions of convenience” (parents with no religious opposition to vaccinations who request a religious exemption simply out of convenience or safety concerns). (See Skov, Examining Mandatory, at 818 quoting Professor Steve Calandrillo.) According to exemption opponents, this Catch-22 demonstrates the difficulty of implementing an exemption regime, thus supporting the notion that religious exemptions are not sound policy.
In order to evaluate properly the many competing issues involved, it is important to understand the current state of the law as it applies to vaccinations.
First and foremost, although the U.S. Supreme Court has never directly ruled on the permissibility of religious exemptions to mandatory vaccination, the Court has firmly established a state’s right to require vaccination, as noted in Jacobson v. Massachusetts. This decision is often touted by exemption opponents as a clear indication of the state’s broad power in this area.
And although 48 out of the 50 states currently have some sort of religious exemption to their vaccination requirements on the books (Mississippi and West Virginia are the exceptions), there have been successful challenges in recent years to some exemption policies.
In McCarthy v. Boozman, 212 F. Supp. 2d 945 (2002), a federal district judge struck down an Arkansas statute that required applicants for religious exemptions to belong to a recognized religious organization that opposed vaccination, finding that the procedure for procuring an exemption violated both the First and 14th Amendments.
Similarly in Wyoming, the state Supreme Court ruled in 2001 that a public school district violated the state’s exemption statute when it required an investigation into the sincerity of the requester’s belief. The Wyoming Supreme Court also noted in that decision that the exemption policy raised several potentially troubling constitutional questions, though the statutory question precluded the justices from deciding the constitutionality of the policy.
Though both of these recent cases reached similar holdings, the effects were quite different. In Arkansas, by finding the procedure for granting exemptions unconstitutional, the judge ordered that all provisions for religious exemptions be removed from the policy while the vaccinations remained mandatory. Subsequently, the Arkansas Legislature enacted a less-restrictive procedure for granting exemptions. In Wyoming, however, the state Supreme Court’s ruling required that religious exemptions be granted automatically to those who request them.
The controversy over religious exemptions to vaccinations is far from over. As concerns are raised by some parents about possible links between some inoculations and developmental disorders like autism, the number of non-medical exemptions requested grows annually, causing many health officials to be concerned that their bleak predictions of outbreaks might soon come true. Advocates on both sides of the issue appear to be becoming more vocal about their beliefs, thrusting the debate into the public eye and causing entrenchment on both sides. Such entrenchment makes the possibility of productive and civil dialogue less likely.
A current case to watch is that of Rita Palma, a New York woman who has appealed to a New York state trial court the decision of school officials requiring her son to be vaccinated (Sandra G. Boodman, “Faith Lets Some Kids Skip Shots,” The Washington Post, June 10, 2008; Health; Pg. HE01). Palma, who is a Roman Catholic, claims that after a series of religious visions she concluded that God did not want her to provide her son with the final stage of his required hepatitis B vaccination. Though Palma had immunized her son in the past, she believed that her religious beliefs forbade her from vaccinating him again. Palma’s request was evaluated by school officials through a two-hour “sincerity interview.” The officials ultimately denied her request for an exemption, and denied her son admittance to the school until he had received his final inoculation. So that her son may attend school, Palma did vaccinate him, and subsequently filed legal action.
If Palma’s case proceeds past the trial court, it could provide interesting insight into this area of the law. As the cases discussed above suggest, it is unlikely that restrictive evaluations like a “sincerity interview” will pass constitutional muster. In Palma’s case, it is also entirely possible that the courts will find that the actual exemption statute does not allow such invasive procedures as sincerity interviews. The order that would result from such a ruling, however, seems largely up the in air. If this case moves to appellate levels, it will be interesting to see whether courts follow the mold of Arkansas and remove all possibility of religious exemption or, like Wyoming, require that exemptions be granted automatically to all who request them. Regardless, Palma’s case has the potential to be important for the ways in which it could inform future approaches to such controversies.
Shaun P. McFall is a legal-research intern at the First Amendment Center. He graduated with honors from Vassar College in May 2008, receiving his A.B. in political science and religion. His research and writing focuses primarily on First Amendment issues relating to religious liberty.