On July 12, 2019, Judge Mackey of the Albany County Supreme Court (see Note 1) rejected the temporary restraining order request of plaintiffs challenging the updated New York vaccine exemptions law which removed the state’s religious exemption for school immunization requirements (see Note 2). While this is only the first step in what is almost certain to be a long process, and full arguments were not yet heard, the content of the decision does not bode well for plaintiffs – in line with abundant jurisprudence.
Lawsuit against the New York vaccine exemptions law
On June 13, 2019, the New York legislature voted to remove New York’s religious exemption, and New York’s Governor signed the bill into law. This meant that residents of New York could no longer send unvaccinated children to school unless they had a valid medical exemption.
It was a big change – New York’s religious exemption existed since the 1960s. Behind the change was an extremely large measles outbreak that New York has grappled with since late 2018. Other efforts to stop the outbreak did not end it.
Lawsuits in response to the change were expected, and the first was filed on July 10, 2019 by over 50 plaintiffs, represented by anti-vaccine activist Robert F. Kennedy Jr. and a newcomer to the vaccine scene, Attorney Michael Sussman, an attorney who, in the past, worked on civil rights issues, and recently represented other anti-vaccine parents in lawsuits against New York’s efforts to stop the outbreak.
This lawsuit focused on constitutional claims. In the center was the claim that the new law violates the First Amendment by removing the religious exemption – a claim denied in the past by other courts, including, in New York, the Second Circuit Court of Appeals. The claim tried a variation on the theme by arguing that the legislative process showed hostility to religion, citing comments by legislators suggesting that they doubt that most people using the exemption are doing so for religious reasons – for example, the complaint said:
In supporting the repeal, one of its Senate sponsors, James Skoufis, stated,
“Let me be clear: There is not one religious institution, not one single one that denounces vaccines. So, here is a religious exemption pretending as if there is a religion out there that has a problem with the vaccines. Whether you are Christian, Jewish or Scientologist, none of these religions have texts or dogma that denounce vaccines. Let’s stop pretending like they do.”
Skoufis later mockingly tweeted, “Stay classy, anti-vaxxers…In a few moments, I look forward to casting a ‘yes’ vote on this important bill.”
Another principal proponent, Senator David Carlucci of Rockland County, explained the repeal this way,
“We are removing this religious notion to it [vaccination]. Not everybody is the same. Religion cannot be involved here. We have to govern by science. Removing all non-medical exemptions will help to lower the stigma that happens.”
He further explained the repeal this way:
“[A] group of people has decided their ideological beliefs are more important than public health.”
“Another prominent proponent of repeal, State Senator Brad Hoylman, further deprecated those who hold religious exemptions, stating,
“Let’s face it. Non-medical exemptions are essentially religious loopholes, where people often pay a consultant to worm their way out of public health requirements that the rest of us are following.”
Senator Hoylman manifested the same hostility in other remarks,
“The goal should be to take religion out of the equation…We can’t put our public health officials or our school officials into that position of deciding if a religious belief is sincere or not. That is why we need to remove it altogether.”
The reason for this framing is that the plaintiffs’ attorneys know well that a powerful jurisprudence finds that states do not have to give a religious exemption from school immunization requirements. Further, they know that the binding precedent for applying the federal First Amendment ’s freedom of religion clause is Employment Division v. Smith, which says that states do not have to give religious exemptions from generally applicable, neutral on their face laws – laws that are not targeted at religion, and school mandates are clearly not targeting religion.
However, the attorneys also know that in Masterpiece Cakeshop v. Colorado Civil Rights Commission the Supreme Court, while upholding Smith, found that a decision to penalize a baker for discrimination for refusing to make a wedding cake for a same-sex couple was a violation of the First Amendment because the commissioners made statements hostile to religion. The attorneys are trying to argue that the statements they cite show that the removal of the exemption was motivated by hostility to religion rather than a public health concern.
There are two problems with that. First, it’s a misapplication of Masterpiece Cakeshop – the case just doesn’t fit the facts here. Second, the jurisprudence about school mandates predates Smith and does not depend only on it, though it’s strengthened by it.
The claim misapplies Masterpiece Cakeshop. First, it is clear why New York proposed to remove the exemption: not because of a suddenly discovered anti-religious bias, or because of anything a religion says, but because New York is seeing an abnormally large measles outbreak. In other words, the driving force was clearly not religion itself, and trying to frame the issue as hostility to religion mischaracterizes it. Further, the statements in questions do not fit.
The statements from the legislators suggest two things:
- first, that many legislators suspect that the exemption is used by people without sincere religious opposition to vaccines – something well supported by evidence. It is not hostility to religion to want to remove something used by people without religious objections – it is hostility to dishonesty. It is also not hostility to religion to doubt sincerity.
- Second, the statement suggests that the commissioners are reconsidering whether the state’s involvement in assessing religion sincerity is appropriate and whether a religious exemption is generally appropriate. Interpreting Masterpiece Cakeshop to disallow any consideration of whether, as a general policy, a religious exemption is appropriate is severely shackling policy making by the state and going beyond its narrow facts, and interpreting every mention of religion as hostility to it – that is over broadening the doctrine.
The New York legislators did not attack religious beliefs generally, or the religious beliefs of anyone in particular – even the individual statements focused on, let alone the entire legislature, did not focus on that. By and large, legislators discussed whether they need to offer a religious exemption in general terms – and on the background of an outbreak.
It’s unlikely the Supreme Court intended to completely prevent legislators from discussing whether a religious exemption to public health policy is appropriate or not. That is a dramatic interference in the ability of state legislatures to design public health policy, and in tension with decades-old public health jurisprudence.
Extending Masterpiece Cakeshop to every case in which religion is mentioned means state legislatures can no longer protect important interests or pass laws in the public interest without exemptions if opponents cloak their claims in religious terms – however implausibly. It’s a position that should, and would, be concerning and troubling to anyone concerned about individual rights or general applicability of the law.
The other part of this, of course, the elephant in the room, is that the legislators were acting in response to an outbreak – and even if they had to meet the high standard of strict scrutiny, there is a long jurisprudence seeing preventing diseases outbreaks as a compelling interest.
The attorneys against the New York vaccine exemptions law try to combat that in two ways – they strongly downplay the risks of an outbreak, suggesting that there was no compelling interest in stopping it, and implying that it’s overstated (“proponents repeatedly avoided any mention to the number of active cases of measles in the State and deceivingly referred to the cumulative number of cases since September 2018, as if this represented the number of active cases on June 13, 2019, or at any other point in time”) and suggesting public health authorities did not act to contain it – which contradicts the extensive efforts put by public health into fighting the outbreak, or that legislators did not react immediately, ignoring the reality in which legislative and political actions take time.
In other words, the attorneys tried to present the situation as if there was not a real problem because acknowledging the extent of the outbreak would work against the case, by supporting the action by the legislature. The problem with that, of course, is that New York Judges are no doubt as aware of the situation and the outbreak as the rest of the country.
Second, the jurisprudence on school immunization mandates predates Smith, and before and after Smith courts have consistently upheld school mandates, making it clear a religious exemption is not required. The reasoning for that is that school mandates protect children and the community, and there is no general right to endanger those, even under the First Amendment. Masterpiece Cakeshop did not touch that jurisprudence; it did not even consider it, and it stands.
Other claims were that the repeal violated Free Speech, which is a little strange since sending children to school is action, not speech, and that it violates equal protection by treating children differently than adults, which again, is a problematic argument because children are not situated similarly to adults, including adults in higher education. The complaint mentions the right to education, but it is not front and center, likely because the attorneys know that such a claim was rejected in 1904 in New York, in Viemeister v. White, 72 N.E. 97, 98 (N.Y. 1904).
Similar constitutional challenges to California’s SB277, the law that removed California’s non-medical exemption, failed (pdf).
The request for a temporary restraining order against the New York vaccine exemption law also emphasized the turmoil and challenges the change of law created for affected families. This is no doubt true – the change certainly creates challenges for affected families. On the other hand, the existence of the exemption led to an outbreak with high costs to public health and direct harm to people, including children hospitalized.
The decision regarding New York vaccine exemptions law
On July 12, 2019, after hearing from the parties in the previous two days, Judge Michael Mackey from the Supreme Court of New York decided not to issue a Temporary Restraining Order (TRO). The Supreme Court in New York, in spite of the name, is actually the first instance – the trial court.
Three criteria need to be met for granting a temporary restraining order. Because part of the showing is an entitlement to a preliminary injunction, the requirements of that affect us here. What plaintiffs need to show is:
- Irreparable injury without a TRO.
- That they are likely to win on the merits.
- That the balance of equities weighs in their favor: that they will be more harmed without a TRO than the public health would be harmed with it.
Most of Judge Mackey’s decision focused on the plaintiffs’ chances of winning on the merits. He pointed out that longstanding precedent supports school mandates without religious exemptions. He ruled that:
The contours or claimed inapplicability of this precedent may be argued as this action proceeds, but longstanding decisional law portends insufficient likelihood of success on the merits presently.
He also found that the balance of equities goes against the plaintiff. The law is there to “protect the public, including immunocompromised children who cannot be immunized for health reasons, amid an outbreak of contagious disease.”
As the judge correctly identifies, the essence of the plaintiffs’ case is a claim that the state is constitutionally required to allow them not just to refuse to protect their children from disease – they can still reject vaccines and leave their children unprotected – but to make their children’s schools less safe for others, including vulnerable immune-compromised children. It is not a very equitable demand, and the context of the already existing outbreaks makes it less so.
Further, early discussion of the preliminary injunction will allow steps to be taken before schools start in September.
Update – 26 August 2019
On August 23, 2019, Judge Denise A. Hartman from the New York Supreme Court denied plaintiffs’ request for a preliminary injunction (the judge’s reasoned, 34-page decision here). The Judge acknowledged the harm to the plaintiffs and their children from the change in law but found that the balance of equities is not in their favor, because the attendance in a school of unvaccinated children can put others at risk.
She also found that the chances of success on the merits were low, because of the extensive jurisprudence stating a religious exemption from school immunization requirements is not constitutionally required. She rejected the argument of hostility to religion, finding that the change in law was the result of the outbreak and had a public health intent. She also pointed out that statements about the insincerity of some religious exemptions do not show hostility to religion.
On August 26, 2019, Attorney Michael Sussman announced his intent to appeal the denial (denying preliminary injunction can be appealed before the full case is decided).
Update 08 September 2019
On September 5, 2019, Attorney Michael Sussman announced that the Third Appellate Division in New York denied the plaintiffs’ request to stay the law repealing the religious exemption, with no written decision.
Opponents are now appealing to New York’s Court of Appeals, the highest court in New York. If they lose there, they will try to appeal to the Supreme Court of the United States. The Supreme Court has docket control and hears only a tiny fraction of cases submitted. It has, in the past, refused to hear vaccine cases, most recently in Phillips v. New York, in 2016.
We will have to see whether it will take this one. The chances are low unless the Court considers that given the outbreaks, it is important to speak to the issue.
What does it mean?
This is the very start of the process regarding the New York vaccine exemptions law. Plaintiffs still have a chance to convince this judge, or others, that the extensive precedent supporting school mandates without religious exemptions no longer apply, or does not apply in the circumstances.
But they had – and still, do have – a high burden. This decision highlights the high bar they face in their efforts to challenge the decision of New York state to remove a religious exemption in the middle of a serious outbreak, a decision backed by over a hundred years of powerful jurisprudence giving states extensive leeway to protect the public health.
- In the New York State system of courts, the Supreme Court is actually the lowest level of courts, equivalent to the Federal District Court. The next level up is the Appellate Division. And the highest level, which is called a supreme court in most jurisdictions, is called the New York Court of Appeals.
- A second lawsuit against the new law, filed by Kim Mack Rosenburg, is discussed in another article on this website. Professor Reiss is also covering all of these lawsuits here.
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 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 disease.
Denial of temporary restraining order new York exemption
Complaint New York First Challenge
Denial of the preliminary injunction