UPDATED MAY 5, 2021:
(RNS) — On April 28, Connecticut Gov. Ned Lamont signed into law a bill eliminating the state’s religious exemption for mandatory school vaccinations. Three days later, a lawsuit was filed in federal court claiming the law violates the constitutional rights of three mothers — Greek Orthodox, Catholic and Muslim — who refuse to have their children vaccinated for religious reasons.
Does it? Long-standing Supreme Court precedents suggest otherwise.
In 1905, Jacobson v. Massachusetts upheld a state law that empowered municipalities to mandate vaccinations. Writing for the 7-2 majority, Justice John Marshall Harlan declared that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” and concluded that the state law did not “invad(e) any right secured by the Federal Constitution.”
The Jacobson decision noted with approval that many states had made vaccination a condition for children to go to school, and 17 years later, in Zucht v. King, the court unanimously upheld a San Antonio ordinance providing that “no child or other person shall attend a public school or other place of education without having first presented a certificate of vaccination.”
Those decisions, predating the mid-20th-century federalization of the First Amendment’s religion clauses, did not specifically address a claim that state vaccination rules violate someone’s free exercise of religion.
The closest case involving such a claim is Prince v. Massachusetts, from 1944, which concerned a Jehovah’s Witness convicted of violating state child labor law by having her ward, a 9-year-old girl, distribute literature on the street in exchange for contributions. In a 5-4 decision, the court ruled that governmental authority to regulate the actions and treatment of children outweighed such parentally supervised religious activity.
Prince was a close call because it involved the kind of public proselytizing that the court had declared constitutionally protected in Cantwell v. Connecticut just a few years earlier. Given its current proclivity to uphold religious rights against all comers, how the court will handle the new Connecticut case has got to be an open question if the case gets in front of the justices.
Because the lawsuit challenges a state law, the applicable standard of review is the one articulated by Antonin Scalia in Employment Division v. Smith three decades ago. So long as the law in question is “neutral” and “generally applicable,” it cannot be challenged as a violation of the right of free exercise.
For some liberal supporters of strict church-state separation, that standard poses no threat. As constitutional scholars Howard Gillman and Erwin Chemerinsky contend in a new book on the religion clauses, “(I)t supports mandatory vaccination laws even over religious objections, both because of their impact on the well-being of a child but also because of the larger public health interest in a high percentage of vaccinated people.”
But as we have seen in the court’s most recent pronouncements on in-person worship during COVID-19, a law’s neutrality and general applicability can easily be called into question. Thus, the Connecticut plaintiffs argue that the law fails the Smith criteria because it permits medical exemptions while denying religious ones.
If that argument is accepted — and it’s not baseless — then the government needs to pass the “strict scrutiny” test for overturning a First Amendment claim: It must prove that the law furthers a compelling government interest and does so by “the least restrictive means.”
Few would dispute that protecting public health is a compelling government interest. But in the case of children whose parents have refused to vaccinate them on religious grounds, it’s not hard to imagine a less restrictive way to further that interest than an outright ban on school attendance.
Provide them with separate classrooms. Require all students in the school to wear masks and socially distance if the presence of unvaccinated children is insufficient to assure herd immunity. Or something else, no matter the disruption or expense.
If I had to bet on the ultimate outcome of an anti-vaxxer case like Connecticut’s, I’d put my money on SCOTUS finding for the plaintiffs. Where there’s the judicial will, after all, there’s always a way.
This article originally appeared here.
ChurchLeaders original article written on April 29, 2021 below.
Connecticut will no longer allow a religious exemption from childhood immunization requirements for schools, colleges and day care facilities, becoming the sixth state to end that policy.
The legislation was signed into law Wednesday by Gov. Ned Lamont, hours after the Democratic-controlled Senate passed the bill late Tuesday night. More than 2,000 opponents had rallied outside the state Capitol building, arguing the legislation unfairly infringes on their religious liberties and parental rights.
“Proud to sign this bill into law to protect as many of our school children as possible from infectious diseases as we can,” Lamont said in a tweet, announcing he had signed the contentious bill.
Shortly afterward, two groups opposing the legislation — We The Patriots USA, Inc. and The CT Freedom Alliance, LLC. — said they plan to file state and federal lawsuits seeking to overturn the new law, which will take effect with the 2022-23 school year.
“The notion that somehow the state government gets the right to cram its version of virtue down the throats of every citizen in this state is and ought to be offensive to every Connecticut resident,” said Norm Pattis, an attorney representing the organizations. He called it “far more chilling” to tell a parent how to raise their child than to expose other children to a “nominal risk” of infection, given the state’s high, overall vaccination rate.
The other states without religious exemptions for vaccines are California, New York, West Virginia, Mississippi and Maine, according to the National Conference of State Legislatures.
Under Connecticut’s new law, which applies to public and private schools, higher education, day care and child care centers, any students in kindergarten and older with an existing religious exemption will be grandfathered. Also, the state’s medical exemption will remain in place.
Proponents have argued that eliminating the exemption will help prevent potential outbreaks of illnesses like measles. They cited a slow and steady increase in the number of religious exemptions for childhood vaccinations and declining vaccination rates in some particular schools.
“The exemption has been used in recent years to skirt the vaccine law, causing many schools to fall below the Centers for Disease Control and Prevention’s threshold of 95% needed for herd immunity against highly contagious diseases like Measles, Pertussis, Tetanus, and Meningitis, among others,” the Vaccination Alliance of Connecticut, a coalition of public health officials, parents and others, said in a written statement.
Vaccines are encouraged, or in this case required, because they have been proven safe and protect not only those vaccinated but also others who can’t be by slowing the spread of preventable diseases.
But critics, which include both parents with fears about vaccine safety and religious liberty advocates, argue the bill is unnecessary given the state’s overall high vaccination rate and discriminatory, forcing parents with religious concerns about vaccines to ultimately home-school their children.
“Don’t ever consider yourself a champion of children. You failed our kids by voting yes on #HB6423. You are denying services to special needs kids. You are forcing families out of the workforce,” The CT Freedom Alliance tweeted at Lamont and state legislators who voted for the bill, also calling Lamont a “tyrant.”
Lamont said he spent a lot of time researching the issue.
“When it comes to the safety of our children, we need to take an abundance of caution,” he said in a statement. “This legislation is needed to protect our kids against serious illnesses that have been well-controlled for many decades, such as measles, tuberculosis, and whooping cough, but have reemerged.”
This article originally appeared on APNews.com.