one thought on Marty's point 1. The number of children being home schooled is huge. If the vehicle for requiring immunization is schooling then many people will avoid the mandate by opting out of schools. Virtually unregulated home schooling is one of the consequences of Yoder.
************************************************* Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com/> ************************************************* ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane [d...@crab.rutgers.edu] Sent: Sunday, February 01, 2015 11:15 PM To: Law & Religion issues for Law Academics Subject: Re: Vaccine objectors Marty, I agree with # 1, except in states that might have a particularly robust state free exercise doctrine. I also agree with # 2. The issue with respect to # 3, though, is this: What if it turns out that an exemption regime limited to actual religious objections (and not "personal" ones) did not produce serious third-party burdens because the number of kids left unvaccinated would not be enough to compromise "herd immunity"? Such a regime would, I believe, be constitutional. But it does raise at least a question for folks who (a) argue that "religion is not special," (b) it is generally unfair to limit exemption regimes to folks with religious motives, and (c) the best remedy to such unfairness should generally be to "level up" to include deep non-religious beliefs rather than "level down" to eliminate exemptions entirely. Perry On 02/01/2015 10:38 pm, Marty Lederman wrote: I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification: 1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a "personal" objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view.
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