Court upholds policy denying religious exemptions to vaccines

In 2014, the Federal District Court of the Eastern District of New York rejected a claim brought by three plaintiff families against various aspects of New York’s school immunization requirements. The decision did not include any legal innovation: it was completely based on well-established precedent that schools can deny religious exemptions. But it offers a chance to reflect on what that precedent is, why it is in place, and what it means for us.

The take-home point? Our immunization jurisprudence gives states substantial leeway to protect the public health via vaccination requirements, specifically, in this context, by allowing states to decide whether, and under what conditions, to exempt students from school immunization requirements. But states have to actually use that power to achieve anything. By leaving the floor to the passionate, if passionately wrong, anti-vaccine minority, we are allowing them to undermine the right of the rest of us to be free from preventable diseases.

In other words, those who vaccinate need to speak up and make it clear to their elected representatives that they want state law to protect their children – and the community – against outbreaks of preventable diseases. The laws will not enact themselves, and our representatives need to know the public wants this protection, that the public does not want high rates of measles cases or other diseases.

Just like the diseases, anti-vaccine legislative successes, such as maintaining religious exemptions, are preventable. And just like the diseases, doing nothing won’t prevent them.

religious exemptions
Nothing in here is opposed to vaccines. Photo by John-Mark Smith on Unsplash

Phillips v. City of New York

On June 4, 2014, Judge William F. Kuntz, II granted a motion to dismiss in the case of Phillips v. City of New York. The case actually included three cases, of different types. Two of the cases included children who were unvaccinated since their parents were granted religious exemptions.

Their parents were challenging the fact that these unvaccinated children were required, under the statute, to stay home when cases of vaccine-preventable diseases arose. The third case, brought by Dina Check on behalf of her daughter, Mary, challenged the denial of religious exemptions to Dina. A lower court found that Check’s reasons for not vaccinating were not, in fact, religious. Dina Check’s explanation of the religious aspects of her decision was:

I am requesting this religious exemption because it is my strong belief that all vaccines are made with toxic chemicals that are injected into the bloodstream by vaccination. According to the FDA, all vaccines are made with foreign proteins (viruses & bacteria’s), and some vaccines are even made with genetically engineered viral and bacterial materials…. I believe that man is made in God’s image and the injection of toxic chemicals and foreign proteins into the bloodstream is a violation of God’s directive to keep the body, (which is to be treated as a temple), holy and free from impurities…. (Check ex rel. MC v. New York City Dept. of Educ. E.D. N.Y., 2013. Slip Copy, 2013 WL 2181045.)(This case was originally discussed in a prior article.)

Unsurprisingly, the court did not find this explanation to be particularly grounded in religious reasons.

That, however, was not the basis of the court’s decision. All three plaintiffs were attacking the exclusion of their children from school for lack of vaccination. Their main claims were:

  1. Excluding children not vaccinated for religious reasons violates the First Amendment.
  2. Excluding unvaccinated children violates their or their parents’ substantive due process rights as protected by the Fourteenth Amendment.
  3. Excluding unvaccinated children violates their right to equal protection, also protected by the Fourteenth Amendment.

As to the First Amendment claim, the court pointed out that the case of Jacobson v. Massachusetts, 197 U.S. 11, 35-39 (1905) “strongly suggested that religious objectors are not constitutionally exempt from vaccination”, and that New York courts have followed that lead. Indeed: no court in the United States – state or federal – has ever found that a religious exemption is required.

A substantive due process claim is a claim that in some circumstances, a state simply cannot take away the right to – in this case – liberty, because the liberty in question is too fundamental. Substantive due process has fallen into some disrepute since the New Deal and is now used only rarely and for cases that are not related here. The court here found that Jacobson defeats such a claim, saying that “New York’s vaccine program is well within the state’s police power and thus its constitutionality is too well established to require discussion.”

The court also found that there is no evidence of discrimination since there is no evidence of preferring one religion over another or that the plaintiffs are of a protected class. Not every case of treating people differently is discrimination: it’s only discrimination if the difference is of a kind that cannot legitimately be taken into account.

The court found no such difference here: unvaccinated children really are different from vaccinated ones in a relevant way – they are more at risk of contracting and spreading a preventable illness. Being unvaccinated is not a protected category.

So, relying on well-established principles, the court dismissed the case. The plaintiff’s lawyer did announce her intention to appeal, but given the compelling logic behind Jacobson and its progeny, her chances of success are slim.

religious exemptions
Not opposed to vaccines. Photo by Milind Kaduskar on Unsplash

Why does our jurisprudence say about religious exemptions?

As Phillips v. City of New York – again – makes clear, the courts give state legislatures quite a bit of leeway to determine whether they wish to allow exemptions from school immunization requirements, and under what conditions. Why? It’s not because our courts don’t care about religious freedoms or parental rights. They do. It’s because there are other interests in the balance here, and the courts are saying, clearly and loudly, that the state has the power to balance those interests. Three sets of interests meet here:


The Supreme Court said it best, in a paragraph in a case that dealt with a related but different issue – the question of whether child labor laws trump over parental rights and religious freedom. In Prince v. Massachusetts, the Supreme Court explained that 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.

Children have a right to be free from preventable diseases; other members of the community also have the right to be free of those diseases. And the state may step in and limit parental rights to protect those two competing interests. Parental rights and religious freedoms are not absolute.

religious exemptions
Definitely not opposed to vaccines. Photo by Carol Lee on Unsplash

What does this mean?

Here is the rub. Our jurisprudence is enabling. Not mandating. That means states can choose to protect children’s and the public’s right to health against the misguided choices of those that fall for anti-vaccine misinformation – but they don’t have to.

The anti-vaccine activists are a dedicated minority. Some of them sincerely – if often against the evidence – believe their children were harmed by vaccines. Some of them are dedicated for other reasons. They are very, very passionate, and when the cry to arms is raised, they come. Their information is faulty, if not downright wrong, but their dedication is real and their volume is high.

While most of the population is vaccinated, they have not yet spoken up or made steps to protect public health. That’s not surprising: we don’t have an active pro-seatbelt movement, because most people realize that opposing seatbelts is self-destructive. Similarly, most people realize that not vaccinating is self-destructive and simply wrong. It is so self-evident that many people do not see a need to actively advocate for it.

But if we do not speak up, we will be leaving the political arena to the anti-vaccine activists. The hard-working, dedicated pro-immunization grass-roots need the rest of the public to get more involved and speak up for their right to health. To say, clearly, that people’s right to misunderstand science and make bad choices does not extend to a right to endanger the public or their own children.

Our courts give states the power to protect our right to health. But these decisions are made in the political arena. If we do not all join the effort, that power will not be used.

Like vaccines, the power to legislate for public health will not protect us unless we use it.

So people, WAKE UP!


This article was originally published in June 2014. It has been updated to fix some formatting and broken links. Also, many anti-vaccine zealots are utilizing “religious liberty” arguments prevent the elimination of religious exemptions.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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 the social and legal policies of vaccination. Additionally, Reiss is also 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 disease.

47 Replies to “Court upholds policy denying religious exemptions to vaccines”

  1. I seriously do not understand how there are any laws, or provisions allowing religious exemptions for Vaccines. With the exception of the Joke- I mean, Church of Scientology, all the religions are Bronze Age tales. Correct me if I’m wrong, but were’t vaccines invented in during the Industrial Age, like 1500 years later?

    So, how can anyone with a straight face say, “This is against my religion,” and even worse, how can anyone with a straight face go, “Okay”?

    Seriously, WTF?!

    1. Okay, I’ve heard that argument before. I oppose religious exemptions, but this is the wrong argument. Lots of modern things did not exist when the primary materials for the three monotheistic religions were written, but the three religions have detailed rules about them, because there are secondary materials and cannons of interpretation that allow you to deduce from religious materials answers to modern problems (E.g., “if I texted my wife “Talaq” three times while drunk, are we divorced?”). So your argument is simply incorrect in terms of the way religious law operates.

      More accurate would be to point out that most theologians of these religions support vaccines.

      But that, too, is not how our courts would view that, because courts are not conscience police and do not make sure you adhere to your religion’s tenets.

      1. With your example (if both parties were that deep into the religion), I would argue that you were indeed divorced. Texting is another method of talking after all.

        But, at the same time, there is no analogue to vaccines in those books. Back then, they blames illnesses on things like humors, and vapors, even demons. If that were how illnesses operated, and the solution was to inflict a dead, or dying, demon on someone, then I’d agree.

        1. The point you are missing is that by their nature, religious texts are incomplete. It is well accepted by believers that they need to be updated and applied to modern contexts: it’s not a problem. Yes, including vaccines, antibiotics, and so forth.

          There are many ways to criticize the use of religious exemption, but the argument that the texts predated vaccines is not one of them, because for anyone who understands religious law, it’s simply not the way it works.

          1. I don’t think I’m missing it at all. I mean the whole religious exemption thing is predicated on the notion that modern medicine is against some aloof deity’s will. Which doesn’t make any sense to me at all. I mean, last I checked, the books weren’t updated.

            But, you sound as if you have a greater insight to it than I do, so would you please educate me on this?

            1. That’s a different point. If I understand you correctly, you’re saying that you don’t buy the religious argument because you don’t believe a deity cares, if it even exists. If that’s the case, that’s a fair argument from a secular point of view. But when states offer a religious exemption, they kind of assume there’s something to the religious argument – at least that it deserves respect. If you accept that, you kind of accept the rules of the religious game: if there was a deity that gave commandments and texts, those texts came with permission to the authorized humans to update them according to modern advances. That’s the premise behind applying religion to modern contexts.

              If you don’t buy the deity, you wouldn’t buy that, but again, from the religious person’s point of view, they can sincerely believe that their deity, even speaking long before vaccines, had a point of view on vaccines. They believe the texts are applicable to anything.

              Is that clear?

        2. You might find the orthodox Jewish interpretations of the use of ‘God’ versus ‘G*d’ in electronic forms (including texting) interesting. It’s a slightly different take on ‘writing’. In the example above in most traditions both parties must be physically present before a religious authority to rule on a divorce. There are some differing views, but in general texting Talaq three times (or three thousand) simply would not suffice.

  2. Refusal to vaccinate should be grounds for not attending Public Schools, with children so affected being eligible for homeschooling or attendance at such Private schools as do not require vaccinations. We MUST always allow choice, but do not need include the non-compliant with health and safety regulations of this kind in such Public systems.

    And it does not matter why. Religion is simply another personal belief.

      1. You lose that argument. It’s waged with firearms not words. Hypothesis? That’s not a scientific debate, it’s a war. Sorry. The ‘MUST’ is a moral imperative and can be and has been violated by force many times and in the name of many causes. Usually to very poor ultimate result.

          1. Nonsense. But that is your argument when you appeal to force or authority. They seek no power over others only to escape the power you suggest should be inflicted on them. You are actually impugning the would be rape victim’s right to resist. It’s not just twisted, it’s reprehensible.

      1. Naturally not all societies respect or allow freedom either to the ‘scientific’ or the unscientific. One need look no further than the madrassas of Iran to see private schools carefully regulated by government for the ‘public good’, so your point certainly is conceded. With sufficient force anything might be dictated. In general one might wish for more individual freedom but certainty does not always prefer it.

        1. This sound like a charming discussion I read somewhere that stated parents are allowed to neglect ( but not beat) their children to the point of starving them to death as long as they didn’t try to infringe on the child freedom to toddle or crawl away from their care to be fostered, I suppose, by a compassionate passerby or to join the neighbourhood wolf pack.
          Do go on, please. It had been a while since I had read something so entartaining 🙂

  3. Dina Check is seriously demented and should not be allowed anywhere near a child. This individual is quoted as follows in the New York Times today:

    “Ms. Check said she rejected vaccination after her daughter was “intoxicated” by a few shots during infancy, which she said caused an onslaught of food and milk allergies, rashes and infections. Combined with a religious revelation she had during the difficult pregnancy, she said, the experience turned her away from medicine. Now she uses holistic treatments. “Disease is pestilence,” Ms. Check said, “and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you.””

    She is also allowed to vote and to drive! And possibly to own a gun! (Not in NYC.)

    I hope the Times is kidding…

    1. I admit I have a little more sympathy for Ms. Check. My impression is that she had some problems with Mary as a baby and was very, very frightened by them, which made her an easy target for buying into anti-vaccine misinformation. Remember that it’s easy to find this kind of misinformation today and once you get into those groups, the echo chamber reinforces those beliefs. I think the religious cloth was added on top long after the fact when she decided the medical exemption won’t work – I don’t doubt she’s religious, but I think on this issue, it’s the medical concerns that drove her. That’s my reading of the earlier court decision in her case.

      But I may well be wrong.

      1. As an atheist, it’s hard for me to be very sympathetic. My previous article about her seem to indicate she had some pseudo-Catholic beliefs, but who knows, maybe she’s using it to push this through.

        1. I found a link to Mrs. Check’s fundraising site, which has soon interesting videos up. I suspect there was some miscommunication between Mrs. Check and her attorney. Mrs. Check seemed to think that the case being heard was Mary’s religious exemption (or medical exemption), when the combined case was about about exempting non vaccinated children from school during an outbreak.

          BTW, excluding non vaccinated children from daycare, preschool and school programs are standard procedures in order to contain an outbreak.

        1. I admit I am less than impressed by what I have seen of the lawyer’s work so far.
          I think it is highly unlikely that an appeal will lead to anything but reaffirmation of the principles in Jacobson and Prince, though of course, you never know.

          In terms of exemption jurisprudence, I think a more interesting question is what will the Supreme Court do in Hobby Lobby.

          1. I think it is highly unlikely that an appeal will lead to anything but reaffirmation of the principles in Jacobson and Prince

            Is Patty working pro bono?

            1. Let’s think about that one for a moment.

              Hmmm. Would you bet your dirty laundry on that?

            2. I’m tempted to guess that she is, since she doesn’t exactly seem to have a practice any more, leaving nothing to do but try to attract attention and fail to spell-check briefs. The rap back at MDC was that she wanted $600 for incompetent, rambling exemption letters peppered with random Biblical passages.

            3. I think she’s a believer, as well, so she may be, but she’s certainly trying to fundraise for Mary Check’s case through that site, and I’d bet if she can charge, she does.

    2. It does not matter. The government should NEVER have the right to force anyone to get a vaccination, or to vaccinate their children. At the same time it’s perfectly appropriate to exclude such children from Public Schools, and other Public programs where risk of spread of infection is significant. If they so choose they can home-school or try to find a Private School that permits the unvaccinated.

      And ‘stupid’ is not a reason to deny rights to anyone. Were that so almost every Democrat in the nation (excluding those very few who actually understand Democracy and its implications) would be denied the right to vote AND to own firearms. Remember: a low information voter is also a low information shooter!

      1. There a long history of Quarantine – the government would not allow people with certain diseases to be admitted into the country.

        That is still true for certain diseases, some of them new, such as SARS. There has been an effort to control diseases locally, by the states.

        It is perfectly appropriate to exclude unvaccinated children from places where they might be able to transmit or receive infections, such as trains, buses, supermarkets, churches, libraries, pediatricians’ offices, and other public places. Gratuitous slurs about Democrats aside, it is simply stupid to leave your kid unvaccinated without a really good reason (such as immune deficiency). Belief is an inherently stupid reason to deny science.

        1. While I agree a brush is appropriate, you paint it too broadly. Churches (mosques and such), first of all, are private, not public and not subject to any such government restrictions except those they freely choose to adopt. Libraries and public places, perhaps in times of emergency only. Supermarkets, like churches, are private not public and should determine their own policies on the basis of the owner’s preferences (which will be determined primarily by the customer’s). Rather than being gratuitous I think Democrats (and ‘democrats’ too) have well earned some slurs, as they so frequently make it clear they are no friends of individual freedom. There’s no virtue in being stupid. But if persons are not free to be stupid, then they are certainly not free at all. Quarantine is still used in special cases, such as multiple antibiotic resistant TB, and you can still be arrested and held in such cases! Admission to the country on a health basis is pretty much abandoned, as it hardly applies when pretty much anyone can enter and stay with little or no requirement for anything at all, unless seeking some official status of some kind or other (such as in-state tuition, disability welfare, healthcare &etc). I am a libertarian, but recognize common sense, as it applies to such things as schools and such, while not sacrificing freedom for lowered health risks. Too eager a desire to make such sacrifice will not yield the desired results, by any means, as very many people are fearful of government intrusion and power and would be disinclined to accept even common sense restrictions on freedom if they perceived it as ultimately destructive of traditional US freedoms. There’s little or no advantage in starting wars unnecessarily, especially ones not likely to be won in a country where most people believe in UFOs, Ghosts and Angels.

            1. In many jurisdictions private establishments are ‘at will’ meaning the public is permitted implicitly, and has no implied ‘right’ to enter at all. I would think in such cases the owner should dictate, not the state, if we intend to respect ‘private’ ownership at all. Of course we may choose to terminate such rights, allowing only what the state sees fit to permit. We need to understand such course has not only ‘benefits’ (at least perceived) but also very real, and pervasive, economic, social and moral costs. As always suggestions to prudence are typically wasted breath to True Believers, whether their faith is in ‘Science’ or ‘God’. Except for the tragic collateral damage I personally find it immensely amusing. The cases vary, but the story remains pretty much the same as Barbara Tuchman called it: The March of Folly. Arrogance is a self destructive asset and we’ve bred it in abundance.

            2. Now you’re waxing philosophical. Thanks, but I’m not interested in a philosophical discussion. I prefer real world, dictionary definitions.

            3. As always suggestions to prudence are typically wasted breath to True Believers, whether their faith is in ‘Science’ or ‘God’.

              Oh, goody, not just libertarianism, but with “scientism” frosting as well.

              The cases vary, but the story remains pretty much the same as Barbara Tuchman called it: The March of Folly.

              I always enjoy a good example of begging the question in the proper sense.

          1. It is perfectly appropriate to exclude unvaccinated children from places where they might be able to transmit or receive infections, such as trains, buses, supermarkets, churches, libraries, pediatricians’ offices, and other public places.

            Churches (mosques and such), first of all, are private, not public and not subject to any such government restrictions except those they freely choose to adopt.

            Um, define “such.”

          2. You’re not going anywhere outside of a hospital negative pressure isolation room, if you your sputum specimens are smear positive:


            Once you are released from the hospital you are put on Directly Observed Therapy (DOT) with followup under the auspices of the local (County) Department of Health-TB Control Unit, until you complete the course of prescribed antibiotics:


            Every legal immigrant is skin tested and receives a chest x-ray before visas are issued. Those who have positive chest x-rays with no apparent diseases are referred to the local Health Department at their intended destination, for care and monitoring.

        2. PS – Don’t worry, I also slur the Republicans too. As they’re not now in power there’s less such opportunity, but they have, and will, get their ‘gratuitous’ slurs too.

      2. In fact, if you actually read the article, which apparently you didn’t, you’d understand that the Supreme Court has long ago ruled that the government can give more weight to the greater good of public health over individual desires to not vaccinate.

        As for guns and your lame comments about Democrats. That’s what we call a strawman argument.

        1. One or many need not care what your court says. It”s not that simple. You seem to suggest I argue my point. Not so. I argue against a fatal arrogance and the very likely dolorous consequences. Rationality as you define it is paper thin. With regard to Democrats and Republicans I abhor the ignorance of both for freedom and their appeal to force in their own interests. Any appeal by reason to force must be ultimately self defeating. The court did not rule on any issue except whether a religious exemption for public school attendance was required, no more. The ruling applies no more broadly than that. At that it certainly agrees with my opinions, especially as it allows conscientious objectors alternatives to compliance, a moral and wise policy. If you think that’s a straw man your universe is too narrow to know what is real. It is.

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