This article, about the circuit court of appeals upholding the NY religious vaccine exemption, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Law, San Francisco, who is a frequent contributor to this and many other websites, providing in-depth and intellectually stimulating articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively about the social and legal aspects of vaccination in law journals. Reiss is also a member of the Parent Advisory Board of Voices for Vaccines. This parent-led organization 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 June 30, 2026, a panel of the Second Circuit Court of Appeals once again rejected a case brought by Amish schools and Amish parents who argued that New York’s refusal to allow them a religious exemption violated their freedom of religion. The decision was a result of the Supreme Court sending the case back for reconsideration in light of a recent decision, and the 2nd Circuit panel decided that the recent decision did not change the result. This post explains the case. 

Background on NY religious vaccine exemption case

As explained in the decision, in 2019, following a large measles outbreak focused on New York, New York state repealed the religious exemption from their vaccine mandates, requiring children to be vaccinated against “poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib)[capitalization as in the statute – DR], pertussis, tetanus, pneumococcal disease, meningococcal disease and hepatitis B” before attending school unless the child has a medical exemption. Furthermore, the state also tightened the process for getting a medical exemption, which led to another set of lawsuits that are not covered in this post. 

Unsurprisingly, this led to numerous lawsuits, which so far have been rejected. The case in question, as the decision explained, was brought by “three ‘Amish community schools’ …. That have been fined for failing to comply with New York’s immunization law” by not requiring the children attending them be vaccinated, “Ezra Wengerd, an elected representative of all Amish schools in New York;” and two parents who are also board members of their school, Jonas Smucker and Joe Miller. Miller was the lead plaintiff, and thus his name headlines the case, as does the name of James V. McDonald, New York’s Commissioner of Health – the case is therefore referred to as Miller v. McDonald.

Miller v. McDonald has an advantage over other cases: the plaintiffs had a colorable claim that their religious objections to vaccines were sincere. It is not unusual for people to claim religious exemptions when their real opposition to vaccines is based on (usually misinformed) safety concerns, using religion as a fig leaf. While not all Amish communities vaccinate because they believe their faith forbids it, some do, and the plaintiffs could make a better claim there than some others, so the case really had to face, directly, the question whether people with religious objections to vaccines have a right to a religious exemption under the First Amendment’s free exercise clause.

Until 2021, the answer to that was clear. Any court that looked at it concluded that no, there’s no right to a religious exemption from a school vaccine mandate. In part, but not completely, this drew on a 1990 Supreme Court precedent called Employment Division v. Smith, in which,  in a 6:3 decision, that luminary of liberal thought, Justice Antoni Scalia, ruled for the court that there is no right to be excused from a generally applicable, neutral on its face law because of a religious objection: a sincere religious objection does not absolve you from complying with a law not targeting religion, and the legislator need only meet minimal constitutional criteria in justifying such laws – what the Second Circuit described as rational basis. On the other hand, laws targeting religion, even if they were pretending to be neutral, needed to meet the highest constitutional standard – strict scrutiny, which required showing that the law served a compelling state interest and was narrowly tailored to meet that standard to survive – a standard that most laws fail. 

In September-October 2020, the Supreme Court composition changed — Justice Ruth Bader Ginsburg died, and Justice Amy Coney Barrett was appointed in her place, and shortly after, the Supreme Court tightened its protection of religious freedom. Specifically, two decisions of the Court are relevant here and were discussed by the Second Circuit’s decision. In April 2021, in Tandon v. Newsom, the Supreme Court made it clear that if there is any “comparable” secular exemption given from a general rule, policy makers need to give a similar exemption to “comparable” religious conduct (and in Tandon itself, as Justice Kagan made clear, the Court took a fairly loose approach to what “comparable” means (Justice Kagan saw the majority’s comparison as comparing “apples and watermelons”). 

Then, in June 2021, in Fulton v. City of Philadelphia, the Court’s majority expressly declined to overturn Smith, leaving it as good law, but found that if a law has a discretionary exception, given on a case-by-case basis, refusing to give it to someone with religious objections needs to meet strict scrutiny. 

Why does that matter here? Because all vaccine mandates give medical exemptions, and they should: medical exemptions are well justified, because they protect children who cannot be medically vaccinated. Those children are part of the reason for a mandate: we vaccinate those who can be vaccinated medically to protect those who cannot. But, say challengers – including the plaintiffs here – if you give a medical exemption, under Tandon and Fulton you need to give a religious one! Under Tandon, a medical exemption is a comparable secular exemption. Under Fulton, it requires individual evaluation, so it should be given not just to kids with conditions that make vaccinating dangerous, but to those whose parents have religious objections. 

Reminder, on that last point: it’s not the kids who are saying “I don’t want to be protected against potentially fatal diseases because I read on a conspiracy theory site that vaccines cause autism, and here is a bible verse to support that!” It’s their parents, most of whom are, themselves, vaccinated, but who have been scared off protecting their children by anti-vaccine misinformation.

Just to be clear where I’m coming from, I have been writing about criticizing religious exemptions from vaccines since 2014, because:

1. Most parents using religious exemptions are not really acting from religious reasons.
2. Even if they are, parents who do not want to vaccinate are putting at risk a child who cannot make their own decision and their child’s classmates. Religious objections should not allow you to kill your child or kill other parents’ children in the school. In the words of a famous Supreme Court case: “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” 

There are other issues with this, but I will address them with the Second Circuit’s decision. 

This opposition was used successfully at least in one case – in a federal district court in Mississippi, the judge, in Bosarge v. Edney, was convinced enough to require Mississippi, which did not have a religious exemption since 1979, to offer one. That said, Bosarge is a strange case because the state’s Attorney General really did not defend the case.

The jurisprudence elsewhere was more mixed. And in Miller v. McDonald, the 2nd Circuit – as with other similar cases – initially rejected the claims. Plaintiffs requested the Supreme Court to hear the case. Most such petitions are not granted, but this case was different. On December 8, 2025, the Supreme Court issued a “grant, vacate and demand” decision in the case. What is that? It’s a procedure under which the Supreme Court grants a petition for certiorari – a petition to consider a case – vacates a lower court decision, and sends it back for more procedure – and it often happens when there’s a “change in legal circumstances” after the initial lower court decision. It’s a controversial approach. In this case, the Supreme Court was sending the case back “…for further consideration in light of Mahmoud v. Taylor, 606 U. S. 522 (2025).”

Mahmoud v. Taylor is a case in which the Supreme Court found that public schools have to exempt K-12 students whose parents have religious objections to “LGBTQ+ inclusive text” from learning those texts, finding that parents’ rights to direct the religious upbringing of the child trump over a public school’s curriculum. The case has some strong language about parents’ right to direct the religious upbringing of their child, and draws on a 1972 case, Wisconsin v Yoder, in which the Supreme Court found that Amish parents have a right to exempt their children from attending school after 8th grade, and cannot be punished for violating the state’s compulsory education statute. For a long time, Yoder has been confined to its fact. But Mahmoud revived it, using it to justify allowing parents who send their children to public school to opt out of content they have religious objections. 

Plaintiffs’ argument here is that if parents have a right to direct the religious upbringing of their children, they can decide not to vaccinate if they have religious opposition to vaccines. I hope it’s obvious to readers that this is a problematic comparison. Objecting to the content of the curriculum is not the same as objecting to health and safety rules like a vaccination requirement – what if the parents argue that a child’s religion requires bringing a sword to school and killing anyone who disagrees religiously? But that’s the plaintiff’s argument, and observers – including well-informed observers – saw it as a warning sign that the Supreme Court may require religious exemptions from school mandates. 

If so, the Second Circuit did not take the hint, and it doubled down, essentially telling the Supreme Court that if it wants to overturn decades of precedent that do not require religious exemptions from vaccine mandates, it will have to do the dirty work itself. 

The Second Circuit decision on the NY religious vaccine exemption

The NY religious vaccine exemption decision was made by Judges José Cabranes (Clinton appointee, but appointed by Chief Justice Roberts to serve on FISCR), Richard Wesley (a George W. Bush appointee), and Eunice Lee, a Biden appointee. All three have extensive legal experience. 

The main question the decision focused on was whether the standard New York’s repeal of the religious exemption should be examined under a rational basis — if it’s a generally applicable and neutral law under Smith – or strict scrutiny. The court pointed out that plaintiffs agreed (really, they did not have good arguments to the contrary) that the law meets rational basis review because preventing disease is a legitimate government interest, and removing exemptions helps increase vaccination rates and prevent outbreaks, thereby reducing disease and protecting children. Note: it’s possible that vaccine mandates could survive strict scrutiny too, but the court did not need to address that. 

Why did the court find that the standard is rational basis? Because it found that the law is neutral towards religion – it is not targeting religion – and a medical exemption is not comparable to a religious one. Why?

The court pointed out that “the Supreme Court and this Court have consistently viewed immunization laws with approval” (p. 12). The court found that the law did not target religious belief – it did not restrict practices because they were religious; it simply “applies New York’s school immunization requirements to all children who do not qualify for the law’s medical exemption.” (p. 14) The legislative history does not show an anti-religious bias. There may be some individual statements that can be interpreted that way. Still, there is no evidence that the legislature as a whole shared that view, and “the legislative record is full of respectful statements in support of religious freedoms” (p. 15). So there’s no real evidence the law was targeting religion.

In fact, the court could have pointed out that the reason for the law was clear: a measles outbreak concentrated on communities with low vaccination rates – with many victims being children with religious exemptions – showed that unvaccinated children are putting the community at risk – whether they’re unvaccinated for religious reasons or other reasons. 

The court also found that medical exemptions and religious exemptions are not “comparable” under Tandon, and I think the court is right (pp. 18-19). The starting point for that assessment is the interest protected by the law, and the court found – convincingly – that that interest is  ““protect[ing] the health of all New Yorkers, particularly our children,” N.Y. Sponsor’s Memorandum, 2019 S.B. S2994-A, from “disease outbreaks” by “sustaining a high vaccination rate among school children.”” (p. 17). Removing the religious exemption helps this interest because it “decreases ‘to the greatest extent medically possible’ the number of unvaccinated students and thus the risk of disease.” Religious exemptions undermine that interest – they increase the risk of disease.

The court also pointed out that the exemptions are different: a medical exemption requires documenting that the child has a contraindication to a specific vaccine, and it’s not generally wholesale, and it can be time-limited if the contraindication stops applying. But religious exemptions, said the court, can be general and cover all vaccines throughout school attendance – in fact, that’s what the plaintiffs here were claiming it means. That’s broader.  

The court could have gone further, in my view. There are two other legal reasons and two other non-legal reasons to distinguish the exemptions:

1. The Supreme Court, in its first vaccine mandate case, Jacobson v. Massachusetts, at least implied that a medical exemption is constitutionally required.
2. Medical exemptions are not exemptions in the same way. I think the court was right in seeing a mandate as aimed at achieving as high vaccine rates as possible, but it did not focus on part of the reason for that: because some people cannot be vaccinated, for medical reasons, they depend on their community having high rates for protection. One reason for a mandate is to protect those who cannot be medically vaccinated.  A medical exemption serves that interest; a religious exemption undermines it. A fair reading of a school mandate is “vaccinate all that can be medically vaccinated to protect those who cannot” – which makes the medical exemption part of the framework, not really an exemption at all.
3. The court pointed out that you need documentation for vaccination. But two other things are different: for a medical exemption, you have both objective criteria – defined contraindications – and a gatekeeper. You can assess them, as the court will say in the next pages. That’s not true for religious exemptions, as I set out in 2014: the courts have expressly forbidden requiring a letter from clergy, a gatekeeper, and there are no objective standards; the focus is on individual belief. 

Plaintiffs also tried to claim that the general risk does not apply to their smaller Amish community, and the court rightly rejected that claim, pointing out that their schools have “a clustered population of almost 100% unvaccinated students” – essentially, an outbreak waiting to happen. As a reminder, we have seen measles outbreaks in such unvaccinated Amish communities before (and recently). That’s exactly where the risk applies. 

The court also rightly found that this is not a case similar to Fulton, where exemptions are given based on discretion to decide which reasons deserve it or not. The court points out that a medical exemption requires that a physician certify that there is a contraindication consistent with national standards, and that must be documented, and there is a review of it. That is very different than a discretionary exemption; it’s “mandatory” – you have to exempt children with contraindications – and has objective criteria. (p. 22). There is also oversight over the physicians. 

So the court found the New York vaccine mandate, without a religious exemption, is neutral and generally applicable.

But what about Mahmoud v. Taylor?

The Second Circuit decided that the extension of Mahmoud does not apply here. It focused on language in the case that “[w]hen a law imposes a burden “of the same character as that” in Yoder [which was about the content of the education] strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.” (pp. 24-25) That’s the case when the burden interferes with religious beliefs or practices that the parents want to teach the child. The immunization mandate was different: it does not address curriculum, does not require children “to affirm any belief, does not expose them to state-selected instruction contrary to their parents’ faith, and does not enlist school officials to displace parental religious formation” (pp. 25-26). It creates a health and safety rule to reduce the spread of disease – that’s different. This is the argument raised by a scholar criticizing the Supreme Court’s GVR – grant, vacate, remand – and pointing out that this is applying Mahmoud outside its context, and it’s a good argument. 

The court also distinguished another case – Mirabelli v. Bonta – in which the Supreme Court struck down a California policy that prevented schools from telling parents their children were looking to engage in gender transitioning. The court found that the case is different because the school mandate here “conceals nothing from parents and displaces no part of their authority over a child’s religious upbringing” (p. 27). The court points out that a Fourth Circuit post-Mahmoud decision – Perry v. Marteney, 172 F.4th 315 (4th Cir. 2026) – agreed with the distinction.

The court quotes the case’s words that: 

The burden imposed by West Virginia’s compulsory vaccination law is not remotely “of the same character” as those imposed in Yoder and Mahmoud. The law is a public health measure, not an instrument of ideological indoctrination. It does not expose children to values or beliefs that might be hostile to their parents’ religious beliefs. It does not require that school instruction extoll the virtues of vaccines. All the law requires is that, in the interest of protecting others, children get themselves vaccinated before attending school. The need for some to protect the health and well-being of all was not present in Yoder or Mahmoud.

This distinction is well taken, but I think the court could have gone even further. Yoder, for example, emphasized that states can regulate actions of individuals “even when religiously based” to promote health, safety, and general welfare…”, and that the case “is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.” If that were the case, goes the implication, the state could regulate and protect the child. Vaccine mandates are in that category and therefore are an exception to Yoder – and to Mahmoud, which relied on it.  

But the distinction is a good one. 

What next? 

I think there is a good chance the plaintiffs will appeal to the Supreme Court. What then? First, I’m not sure the Court will want to take the case. The Court has been avoiding vaccine mandate cases, and as far as I know, has not taken up a school mandate case since Zucht v. King in 1922. 

And if it takes it? First, I will point out that there are very smart people who think the Court would find for the plaintiffs and require a religious exemption. Me? I think it’s a toss-up. The grant, vacate, and remand suggested the Supreme Court thinks there might be something there. But if the Court was sure, it could have decided the case directly, as it did other cases. The GVR suggests to me that the Court did want the benefit of more examination. 

This does not mean the Court will not overturn the 2^nd Circuit on remand. But requiring a religious exemption from a school mandate is a big, big change, going against decades of precedent. The Court has certainly done it, and might again. But it’s not clear that it will. By my count, we have three justices for requiring religious exemptions: Justices Alito, Thomas, and Gorsuch have expressed their views that way. 

We have three justices clearly against requiring it: Justices Sotomayor, Kagan, and Jackson. 

So the question is which way will Justices Barrett, Kavanaugh, and Chief Justice Roberts fall. None of them joined the other conservatives’ decisions requiring religious exemptions from vaccine mandates. In fact, Justice Barrett previously expressly refused to do so, on procedural grounds. So I am not sure which way they will fall.

Maybe their opposition would lead to the Court not taking the case again. 

We will have to see. At the least, if plaintiffs appeal, the public health community needs to speak up and explain the implications, and we need to be aware that the Supreme Court may end up requiring religious exemptions to school vaccine mandates.