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Court rules Mississippi needs religious exemption to vaccine mandates


This article about a Federal court ruling on the need for a religious exemption to Mississippi school vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.

On April 17, 2023, a Federal district court issued a preliminary injunction against the state of Mississippi, requiring it to provide a religious exemption from its school vaccine mandates while the case against the lack of religious exemption is being litigated.

Reading the decision shows that the state’s attorney general did not make any serious efforts to defend Mississippi’s law, and did not make arguments that would have supported the existing school immunization mandate, leading to a bad decision based on only one-sided arguments.

Mississippi vaccine mandates
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Background on Mississippi vaccine mandates 

In 1979, the Mississippi Supreme Court struck down Mississippi’s religious exemption, in Brown v. Stone (a decision that, in my view, was not wonderfully argued, but gave Mississippi one of the strongest school immunization laws in the nation).

Since then, Mississippi’s immunization law only had a medical exemption. This led to one of the highest rates of childhood immunizations – at the kindergarten stage – in the nation. Mississippi’s health outcomes are generally low due to social determinants of health – poverty, health inequities, and other issues. But Mississippi has managed to avoid the kind of outbreaks of preventable diseases that states with less robust immunization rates (at least in some communities) – like New York, Washington state, Minnesota, and California – have seen. For example, Mississippi has not had measles cases since 1992, and that outbreak was from a university outbreak. In 2002, a visitor from out of state who was unvaccinated had measles and infected no locals. 

Now, an attorney general who failed to counter a lawsuit by an anti-vaccine group seems set to overturn that one positive health achievement the state can boast. 

Every year since I have been following vaccines, anti-vaccine activists in Mississippi tried to pass legislation creating a religious or personal belief exemption, and every year that effort failed. 

The First Amendment framework

In 1991, in Employment Division v. Smith, the Supreme Court ruled that a generally applicable, neutral on-its-face law does not require a religious exemption. This means that general laws not targeting religion generally did not need to have religious exemptions – including school immunization mandates.

But even before that, another precedent – one not mentioned in the new Mississippi decision – found that when it comes to children and their welfare, the Supreme Court found that general law does not require a religious exemption. In Prince v. Massachusetts (1944), the Supreme Court found that a child labor law could be applied against a Jehovah’s Witness parent (in that case, an aunt acting in the parents’ stead), in spite of the importance of parental rights and religious freedom. The Court stated that children’s welfare cannot be sacrificed to parental freedom, since:

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.

Further, in a passing comment, the court explicitly reminded us that there is no requirement for a religious exemption from compulsory vaccination for children: 

[a parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to a communicable disease or the latter to ill health or death. [footnote and citation omitted]

This case, again, was ignored by the court. But it was cited in the extensive jurisprudence addressing school immunization mandates since upholding school mandates without religious exemption, and ignoring it, arguably, was a serious legal error.

In response to Smith, several states passed religious freedom restoration acts aiming to revive strict scrutiny for law burdening religion, even if the burden came from a “generally applicable, neutral on its face law.” Mississippi passed such a law in 2014, the Mississippi Religious Freedom Restoration Act. This will become important shortly. 

After decades of following Smith, a change in the composition of the Supreme Court led the court to tighten the protection of religious freedoms.  The initial steps of tightening were done using emergency decrees, the court’s so-called Shadow Docket. Most concerning to observers was Tandon v. Newsom, in which the court struck down California’s limits on in-home gathering – which covered any type of in-home gathering – by concluding that if the state allows opening retail stores and salons, it cannot limit in-home religious gatherings.

In dissent, Justice Elena Kagan – rightly, in my view – called out this move as requiring “that the State equally treat apples and watermelons,” and suggested that the right comparison should have been in-home secular and religious gatherings – which were treated similarly. Observers read Tandon as giving religious freedom a privileged status over other interests and potentially suggesting that any different treatment of secular activity requires treating religious activity at least as well – creating a “most favored nation” status for religious freedom. 

However, confusing the issue, in June 2021 the Supreme Court ruled squarely on a case in which plaintiffs asked it to overrule Smith – and the Court refused. In Fulton v. City of Philadelphia, the Supreme Court found unanimously that the city of Philadelphia’s decision to revoke the contract with a foster agency, Catholic Social Services, that refused to place children with same-sex couples was unconstitutional.

Over a strong dissent by Justice Alito, the Supreme Court declined to overrule Smith and instead found that since in that case, the City of Philadelphia had the discretion to waive the non-discrimination against same-sex couples requirement at will, it had to provide that discretionary exemption to those asking a religious exemption, or face strict scrutiny.

Unsurprisingly, faced with this jurisprudence, observers wondered whether vaccine mandates without a religious exemption would survive judicial review. All vaccine mandates in the United States have a medical exemption; the concern was that this jurisprudence would mean that if you give a medical exemption, you need to give a religious exemption. The reasoning behind that is that unvaccinated children create a risk of infection whether they are unvaccinated for medical or religious reasons, and therefore, a medical exemption is a secular exemption that requires treating those with religious objections similarly. This was a concern

But this question did not go untested in the courts. Before the pandemic, a federal district court upheld a ban on entry of unvaccinated children to places of public assembly in Rockland County that only had a medical exemption. The court reasoned that the medical exemption is in line with the rationale of the mandate, to control the outbreak by vaccinating all those for whom it is medically possible, which would also protect those who could not be medically vaccinated. In other words, medical exemptions served the interest of the mandate and were not secular exemptions in tension with it. 

Other courts followed. During the COVID-19 pandemic, one district court in New York held that New York state’s healthcare workers mandate, which did not offer a religious exemption, was invalid because giving a medical exemption but not a religious one violated the First Amendment.

Other districts courts went the other way, and the Second Circuit in We the Patriots v. Hochul upheld the mandate, finding that religious exemptions are far more numerous than medical exemptions, which is a meaningful difference, and that exempting the medically exempt according to established medical standard serves the interests protected by the mandate, whereas religious exemptions would undermine it – and thus, the “medically ineligible” is different than religious objectors. 

Similarly, the First Circuit in Does v. Mills upheld Maine’s healthcare workers mandate, which had a medical exemption but no religious exemption, on similar grounds. 

The Supreme Court refused to disturb these decisions, though three justices – Justices Alito, Gorsuch, and Thomas – dissented.

In other words, courts that looked at the issue with two parties arguing it upheld vaccine mandates – including for adults – that had a medical exemption but not a religious one. This jurisprudence was not mentioned in the Mississippi vaccine mandates case, and the reasoning behind it was not addressed. 

st mary basilica
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The Mississippi vaccine mandate case

This case was brought by seven plaintiffs (the decision says six, but I count seven) on behalf of themselves and their children who were denied attending schools in Mississippi for being unvaccinated. They claimed their objection to vaccines was religious. They were represented by a law firm financed by – and frequently serving – the anti-vaccine organization Informed Consent Action Network (ICAN).

Apparently, the Mississippi Attorney General (AG) litigating the case did not make a very strong argument in favor of Mississippi’s law, as the decision laid out. The Attorney General agreed with the plaintiffs, apparently, that:

  1. That the existence of a medical exemption required holding the lack of a religious exemption to strict scrutiny (though, as mentioned, other courts disagreed).
  2. That the law would not withstand First Amendment scrutiny by itself. 

After giving the plaintiffs their main claims – in other words, not arguing against these claims at all, even though there were available arguments – the Attorney General made, apparently, the argument that Mississippi’s law was constitutional because the state’s religious freedom restoration act – MRFRA – required a religious exemption anyway (yes, the AG actually argued that although Mississippi law does not create an explicit religious exemption to its school vaccine mandates, the schools and the Mississippi Department of Health should have known that the MRFRA requires them to give one anyway and that Mississippi had a religious exemption all along and nobody noticed).

This created the obvious problem that Mississippi was not actually granting anyone a religious exemption to its school vaccine mandates, but the AG tried to use that argument to claim that the remedy should be limited to giving plaintiffs only a religious exemption and that there should not be a general one. The judge – rightly, if you get to this point, I think – shot that down.

In essence, the judge found:

  1. That if there is a secular exemption that “undermines the government’s asserted interests in a similar way”, the government needs to provide a religious one unless it meets strict scrutiny.
  2. That by providing a medical exemption but not a religious one, Mississippi’s law does just that — provides a secular exemption that undermines the government’s interest in the same way but not a religious one. Again, there are counters to this, but the AG did not make them: the AG conceded the point. 
  3. That it does not make sense to see MRFRA as remedying the problem, since we cannot read MRFRA as adding a religious exemption to each and every law that demands it, and the statute does not order religious exemptions to be created to every such law.
  4. That in this case, at any rate, plaintiffs were not provided a religious exemption under anything, mostly because the schools and the Mississippi Department of Health read the law – rightly, in my view – to say there’s no religious exemption to school vaccine mandates so they don’t have access to one and should win their case.  

Really, once the AG agreed that there needs to be a religious exemption, the case was over. In a sense, this is not a case plaintiffs won; this is a case the AG threw. Mississippi did not try to win this.

For this post, since it’s already getting long, I will skip discussing the other parts of a preliminary injunction decision – the potentially irreparable harm to parties, and the balance of interests – except to point out that in balancing the interests, the judge gives no weight – none – to the risk of disease outbreaks that can kill and harm children.

I have to wonder whether the AG raised it at all since in this context this is a strange omission. Most courts do address that. I will also not address the procedural question of whether an injunction can be given against the AG, since the main issue that will affect others is the religious freedom question.

What’s wrong with the decision?

First, the decision completely ignores the jurisprudence about religious freedom and children – including Prince v. Mass., a Supreme Court case that has not been overturned – and the jurisprudence directly about school immunization mandates.

Second, the decision completely ignored the other cases that – after the Supreme Court decisions in Fulton and Tandon – upheld vaccine mandates without a religious exemption.

Third, the court does not grapple with the reasons that led other courts to reject the argument that the existence of a medical exemption means that a religious exemption is required. Those reasons include:

  1. Medical exemptions, as explained, are not secular exemptions that undermine the government’s interest in the same way that a religious exemption would. Medical exemptions fit the interest protected by vaccine mandates in two ways: vaccine mandates in essence seek to protect everyone as much as possible by vaccinating everyone who can be vaccinated, and vaccine mandates especially seek to protect those who cannot be medically vaccinated – those who need medical exemption – by surrounding them with high rates of vaccination, by creating herd immunity. In that sense, a good way to read a mandate is “everyone who can be medically vaccinated should be vaccinated,” and a medical exemption, in this reading, is not really an exception: it’s part of the mandate. Religious exemptions are different and do not protect the interest in the same way.
  2. Medical exemptions are generally lower in number than religious exemptions. We – a group of public health associations and scholars – provided evidence on that in a brief in We the Patriots v. Hochul
  3. Medical exemptions are also qualitatively different than religious exemptions in that there are objective criteria – and professional gatekeepers – to oversee them (though they can be gamed). Religious exemptions, in contrast, can and often are gamed in the vaccine context: people lie to get religious exemptions, and it’s hard to police.

What is the effect of the decision on the Mississippi vaccine mandates?

The most immediate effect is that for now, Mississippi is required, until the litigation is done, to provide a religious exemption for their school vaccine mandates starting in the summer.  And given the arguments, the plaintiffs are likely to win their case.

But that’s just a first question. First, the state can appeal. Will it? I do not know. It is hard not to see the Attorney General’s office as intentionally throwing this case — they did not make any arguments that could have supported Mississippi’s law, and if they wanted this result, they may not appeal.

If the state appeals, will it now make real and strong arguments for upholding Mississippi’s law? If not, this is a place where public health groups should certainly file Amici briefs, to support the case. 

What is the effect more broadly? This is a district court decision. It has no direct binding effect outside the parties, and other courts may not go the same way. If appealed, the Fifth Circuit is the one that will have to decide the case.

The Fifth Circuit has made some concerning decisions in past years, including overturning the Centers for Medicaid and Medicare mandate that the Supreme Court ended upholding and finding that the President does not have the authority to require federal employees to vaccinate, whereas all other employers do. I do not know which way it will go on this. Whatever it decides will be binding in the three states in that circuit – Mississippi, Texas, Louisiana – but not in other circuits.

And the decision may end up before the Supreme Court, and there, too, I am not sure which way the court will go. So where courts will end up on school vaccine mandates is a question. I think there are very good reasons to continue – as the courts have done so far – upholding school mandates with medical exemptions and not religious exemptions, as set out here, but we will have to see.

Even if the decision is not binding on other courts, other courts may follow this very problematic decision because they are sympathetic to giving religious freedom a special status. 

Finally, this decision was made mostly under the First Amendment, but part of what may have been driving the AG to basically give up the argument is the fact that Mississippi enshrined religious freedom in a religious freedom restoration act, so this decision may be more influential in states that have those.

Dorit Rubinstein Reiss

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