September 15, 2025 • 52 mins
All fifty states mandate certain vaccinations for schoolchildren. Forty-six of them allow religious exemptions. New York once did as well, maintaining such exemptions for more than half a century before eliminating them in 2019. Medical exemptions remain.
Members of the Amish community now challenge New York’s policy, claiming that opposition to vaccines is integral to their “traditional way of life,” as recognized in Wisconsin v. Yoder (1972). The Petitioners include three Amish parents, one representing all Amish and Mennonites in New York, as well as three Amish schools—funded by and serving Amish communities on Amish land. In 2022, the state charged these schools with violating its vaccination law and levied $118,000 in penalties.
The Petitioners defended themselves by filing a Section 1983 action in federal court, raising an as-applied challenge under the First and Fourteenth Amendments. The district court dismissed the case, and the Second Circuit affirmed under Employment Division v. Smith’s rational basis framework. The Petitioners are seeking Supreme Court review.
Featuring:
Robert M. Overing, Deputy Solicitor General, Alabama Office of the Attorney General
(Moderator) Hon. Sean D. Jordan, Judge, United States District Court for the Eastern District of Texas
Members of the Amish community now challenge New York’s policy, claiming that opposition to vaccines is integral to their “traditional way of life,” as recognized in Wisconsin v. Yoder (1972). The Petitioners include three Amish parents, one representing all Amish and Mennonites in New York, as well as three Amish schools—funded by and serving Amish communities on Amish land. In 2022, the state charged these schools with violating its vaccination law and levied $118,000 in penalties.
The Petitioners defended themselves by filing a Section 1983 action in federal court, raising an as-applied challenge under the First and Fourteenth Amendments. The district court dismissed the case, and the Second Circuit affirmed under Employment Division v. Smith’s rational basis framework. The Petitioners are seeking Supreme Court review.
Featuring:
Robert M. Overing, Deputy Solicitor General, Alabama Office of the Attorney General
(Moderator) Hon. Sean D. Jordan, Judge, United States District Court for the Eastern District of Texas
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to fedsock Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society virtual event.
Speaker 3 (00:22):
My name is Marco J.
Speaker 2 (00:24):
Lloyd and an Assistant Dirictor of Practice Routes for the
Federalist Society. Today we're excited to host a litigation update
on Villa Miller v. MacDonald featuring Bob Overring. Bob is
a Deputy Solicitor in Alabama's Solicitor General Division and an
adjunct professor at Faulkner Law School. He clerked in the
Ninth Circuit Court of Appeals and served as counsel to
(00:46):
the US Senate Judiciary Committee. He receives his law degree
from Yale Law School. Our moderator today is Judge Shawn Jordan.
Judge Jordan is a judge in the United States District
Court for the Eastern District of ten Exis. Before this,
he was a partner at Jackson Walker LLP, where it
was co chair of the firm's Appellet practice group. Prior
(01:08):
to entering private practice, he served as Principal Deputy Solicitor
General for the State of Texas. He also served in
the United States Army as an infantryman and paratrooper in
the eighty second Airborne Division. If you'd like to learn
more about today's speakers, their full buyo.
Speaker 3 (01:26):
Is going viewed on our website bedsok dot org.
Speaker 2 (01:29):
If you have a question at any point today's program,
please enter into the Q and A function at the
bottom of your zoom window. We will do our best
to answer as many as we can. Finally, I'll note that,
as always, the Fertile Society takes no position on particular
legal or public policy issues, and all expressions opinion are
those with the speakers. With that, your honor, thank you
(01:50):
for joining us today, and the floor is yours.
Speaker 3 (01:53):
Thank you.
Speaker 4 (01:53):
Good afternoon, everyone, and welcome to this litigation update on
Miller v.
Speaker 3 (01:57):
MacDonald.
Speaker 4 (01:59):
This is a case coming out of the Second Circuit
with a cert petition now pending at the Supreme Court.
It's an interesting free exercise clause case involving a New
York statute on vaccination of school children. At issue in
the case is a relatively recent change in New york
It's applicable vaccination law. For over half a century, dating
(02:19):
back to the nineteen sixties, New York allowed both medical
and religious exemptions to a school vaccine requirement. That changed
in twenty nineteen when the New York legislature eliminated the
religious exemption. This case arises from that change in New
York law, and particularly its application to the Amish community.
The plaintiffs, who are comprised of Amish schools and parents,
(02:42):
have challenged the validity of the New York law as
applied to them under the.
Speaker 3 (02:46):
Free exercise clause.
Speaker 4 (02:48):
There's also a so called hybrid rights claim under Wisconsin
versus Yoder, which we'll also talk about today and for
this discussion. As Marco mentioned, we're most fortunate to have
Bob Overing, the Deputyesser General in Alabama's SG office. Bob
has participated in this case at both the Second Circuit
and the Supreme Court stage as of litigation, as Alabama
(03:09):
has led a coalition of states that have filed AMAICUST
briefs on the issues that are before the court. So Bob,
I'd like to begin our discussion with you helping us
understand the background of the case a bit better, Can
you tell us about the New York law at issue
and similar laws in other states?
Speaker 5 (03:31):
Right, well, thanks and good afternoon. Your honor depends how
far back you want to go.
Speaker 3 (03:36):
Right.
Speaker 5 (03:37):
So, we have school immunization requirements in every state in
the country.
Speaker 3 (03:43):
Students have to receive.
Speaker 5 (03:45):
A list of vaccines to attend school, and many of
those requirements date back to the eighteen hundreds. But similarly
longstanding is the practice of allowing religious exemptions and objections
to those requirements. At least for decades, virtually all states
have had religious exemptions, including New York, and the Amish
(04:09):
community in New York and probably elsewhere takes advantage of
the opportunity to opt out from that regime. And they
have multiple reasons for that. They are people who put
their trust in God, not so much in modern medicine.
And they also object because of the way that vaccines.
(04:32):
Some of the vaccines were developed using cell lines from
aborted babies. Now, they've been this way for centuries, for decades,
and their practice hasn't changed, but New York's has so.
In twenty nineteen, New York amended its law to remove
religious exemptions. Apparently California had done so in twenty fifteen.
(04:54):
So I think New York is the second state, and
now so have Maine and Connecticut. So we have four
or states who have removed religious exemptions from the school
immunization requirements and forty six states that provide some form
of religious exemptions, including Alabama. And I should say that
(05:15):
we're participating as amigus, and I'm happy to talk about
our arguments, but what I say today is in my
personal capacity, not representing the state.
Speaker 4 (05:25):
All Right, Thanks Bob, and we'll definitely going to talk
to you about Alabama's briefing in this. I want to
ask you a little bit you get a little bit
more granular on this New York law.
Speaker 3 (05:36):
This changed in twenty nineteen.
Speaker 4 (05:38):
Now my understanding is it's a law that applies to
both public and private schools, and that the penalties for
violations of this law are pretty can be pretty steep,
thousands of dollars in civil penalties for violation. Maybe you
can talk a little bit about those specifics of the
law and then we'll get into this application to the
(06:00):
Amish here.
Speaker 5 (06:01):
That's right, So the penalties at least the way New
York is interpreted them. I'm not sure if that's on
the face of the statute or by regulation, but it's
two thousand.
Speaker 3 (06:13):
Dollars per student per school day. So too, if you.
Speaker 5 (06:17):
Had one hundred students, two hundred thousand dollars per school
day could easily add up to millions in penalties every
school year. And as you can imagine, these are not
huge schools that we're talking about in rural Amish country,
and yet they would be facing millions of dollars in
(06:38):
potential penalties. And the other important feature of the law
critical for the petitioner's case here is that it does
provide for medical or health exemptions. And the way that
works is that any student who can get a doctor's
note from any physician licensed in New York certifies that
(07:01):
the immunization may be detrimental to a child's health.
Speaker 3 (07:05):
And that's pretty much all we know.
Speaker 5 (07:07):
They've issued more guidance, the state has, and then New
York City and the public schools have issued more guidance
because they've had a lot of problems with the arbitrary
and varying.
Speaker 3 (07:18):
Application of the medical exemption.
Speaker 5 (07:21):
But the face of the statue just says detrimental to
a child's health. And so you've got this sizable or
vague carve out for medical exemptions and none at all
for religious exemptions.
Speaker 4 (07:37):
We're going to get into that as we delve into
the issues, but that's very helpful background on how this
law operates.
Speaker 3 (07:43):
Now.
Speaker 4 (07:43):
You know, we've talked about how this change in New
York law came in twenty nineteen, but I understand that
this case arises a few years later in twenty twenty two,
when New York authorities initiated enforcement action against these certain
amorged schools, which again I understand are private schools in
(08:04):
homage communities in rural New York State. And so can
you give us a bit of the background of, you know,
this enforcement action.
Speaker 3 (08:14):
That winds up leading to the filing in this case.
Speaker 5 (08:17):
Right, So, there's there's sort of a lull between the
time when the laws enacted and then this administrative action
is brought against the Amish communities.
Speaker 3 (08:27):
I think there's some evidence in the.
Speaker 5 (08:29):
Record that the New York legislators had religious communities like
these in mind when it repealed the exemption, and yet
it took about two years, which I think the petitioners
can credibly say undermines the state's proffered interest.
Speaker 3 (08:50):
About some time, after maybe two.
Speaker 5 (08:53):
Years, the Department of Health gives them a notice that
says we think you're out of com clients and audits
their records.
Speaker 3 (09:02):
Of course, they.
Speaker 5 (09:03):
Don't have vaccine records as far as I know, because
they don't believe in the practice, they don't use them,
and so then they have to go through the administrative
law proceeding in the Department of Health, and the alj
found that indeed they had.
Speaker 3 (09:20):
Violated the school.
Speaker 5 (09:23):
Immunization mandate, but recommended no penalties, basically saying, look, there's
no it would be unfair because they're just hearing about
this now and they didn't know that. I think they
may not have known that the repeal had even taken place.
But the Department of Health agreed that they had violated
(09:46):
the law and then sustained penalties, which in this case
or in their case, totaled one hundred and eighteen thousand dollars,
which in the state's view was very generous that they actually.
Speaker 3 (09:59):
Said that, and.
Speaker 5 (10:02):
In some sense that's true because they could have issued
potentially millions or tens of millions of dollars in penalties
to these schools which they could not afford, and so
you get this lawsuit in June of twenty twenty three
to resist the penalties and enforcement of them in the future.
Speaker 3 (10:23):
And they're basically driven here.
Speaker 5 (10:27):
My feeling from reading the materials is that these are
very reluctant plaintiffs, That these are not people who want
to be litigating, who want to be suing the state,
but have been driven here because they view it as
having no choice.
Speaker 3 (10:41):
You know, that brings up a good point.
Speaker 4 (10:43):
You know, these schools, by the way, in terms of
these penalties, My understanding is these are all pretty small schools.
Speaker 3 (10:51):
They don't have a large number of students in them.
Speaker 4 (10:54):
They're in these amish communities, and the minderstanding is the
entire homage population in New York is around twenty one thousand.
And I want to talk a little bit before we
get into the specifics of this suit. You just were
referencing that the plaintiffs are reluctant, and it may be
a good point to talk a bit about these amaged
schools and the community that's at the center of this litigation.
(11:15):
You know, over fifty years ago in Wisconsin, versus Yoda,
the Supreme Court observed that the Amish share, I'm quoting
a fundamental belief that salvation requires life in a church community,
separate and apart from the world and worldly influence. And
more recently, Justice Gorsuch observed in mass versus Fillmore County
that the Amish quote, are religiously committed to living separately
(11:39):
from the modern world. So it does seem that now
as then, the Amish do live apart from contemporary society
and the trappings of the modern world, so to speak.
And you've talked a bit a few minutes ago about
you know, religious objections to vaccination laws. Maybe you can
talk a bit about, you know, where the Amish stand
(11:59):
on this and how we get here with this community.
Speaker 5 (12:03):
Right well, and we do have some material in the
record on this, even though it's on motion to dismiss,
which I'm sure we'll get to because of that administrative hearing,
many representatives from the community showed up to explain, this
is our way.
Speaker 3 (12:21):
Of life, this is why we object.
Speaker 5 (12:23):
These are sincere religious objections, and as you said, it's
a traditional life, a life of seclusion. They use pre
industrial equipment, make their own clothes and so this modern
technology of the vaccine just doesn't fit well in their
way of life, and they have a religious objection that
(12:43):
it requires them to trust a form of science and
technology that they don't believe is required or even conflicts
with their trust and faith in God to protect them,
to protect the health of their children. Beyond that, they
have said that one of their religious beliefs is that
(13:05):
they need to school their children to educate them in
the faith and for the socialization. Now famously, of course
in Yoda, that is not indefinite. They do object to
compulsory education until all the way until adulthood, but at
least when the children are young, it's important to have
(13:25):
them in school.
Speaker 3 (13:26):
And they also say that because so much.
Speaker 5 (13:29):
Of their way of life is dependent on physical manual labor,
that it's just not practical to homeschool them. And so
there are all of these things, compulsory education, the vaccine's
modern medicine, the upbringing of children, and educating all kind
of come together for I think a very credible, very sincere,
(13:50):
and very powerful religious objection to what New York is
trying to do.
Speaker 4 (13:56):
And Bob, there's there's not been any dispute in the
case that these are sincerely held religious beliefs. I mean,
that's not been part of the defense, right, all right,
So let's let's get to talking about, you know, the
action that was brought initially in the Western District of
New York. We have a group of Amish schools and
parents that file this suit. They bring an as applied
(14:20):
challenge to the New York Vaccination Law, which I'm going
to refer to sometimes as this public Health law or
PHL twenty one sixty four. The claim is grounded in
the Free Exercise Clause as applied to the States through
the Fourteenth Amendment. There's also this hybrid rights claim again
under the Supreme Court's decision in Wisconsin v.
Speaker 3 (14:40):
Yoder.
Speaker 4 (14:40):
But let's start with the as applied challenge under the
free exercise clause, and let's talk a little bit about
what that what that claim you know, looks like. We
know the free exercise Clause bars the governor from making
any law.
Speaker 3 (14:57):
That prohibits the free exercise of religion.
Speaker 4 (15:01):
And for our listeners benefit, Bob, can you describe the
free exercise claim that's being asserted by these plaintiffs.
Speaker 3 (15:09):
And maybe walk through a little bit.
Speaker 4 (15:11):
I think we have the schools, and then we have
a couple of the few individuals.
Speaker 5 (15:16):
Well, of course, with the free exercise clause, we're not
riding on a blank slate. Everyone knows the big touchstone
of modern free exercise jurisprudence's employment Division versus Smith. And
so even starting with the complaint, there is a ton
of analysis on Smith. And the rule from Smith has
(15:37):
been that a government's burden on religion does not need
to satisfy strict scrutiny if it is a law of
neutral and general applicability. And so the complaint spends a
lot of time explaining how the immunization regime is not neutral.
It was targeted because it was a repeal of a
(16:00):
religious exemption. So the law passed in twenty nineteen was
specific to religion.
Speaker 3 (16:06):
And then it's not generally.
Speaker 5 (16:07):
Applicable because there's this huge carve out for medical and
health exemptions. And so the complaint itself argues that this
claim has to be evaluated under strict scrutiny, and they
say that it fails. It's not narrowly tailored because of
the exemptions, because adults don't have to be vaccinated in
(16:27):
New York, and because a lot of the immunizations don't
protect other school children or other people in New York
State from transmission. Many vaccines, such as tetanus and others
don't prevent transmission, and so the stated health interest is
(16:47):
not met by the regime that is so broad in
its requirements and burden on their religion.
Speaker 3 (16:56):
They have, of course a.
Speaker 5 (16:57):
Lot in the complaint about their particular religious practices.
Speaker 3 (17:02):
The plaintiffs I don't.
Speaker 5 (17:03):
Think we mentioned are not just the schools, but also
to parents of children at these schools and a representative
of the Amish community who says these are our beliefs,
they're sincerely held, and the parents saying to do this
to shutter the schools or to require to put us
to the choice of vaccinating or keeping our children home,
(17:24):
would work a serious burden on our religious beliefs and practices.
Speaker 3 (17:30):
So that's the po well, that's the as applied challenge.
Speaker 5 (17:33):
I think it could be construed as a facial challenge too,
because I think a lot of people, a lot of
religious exemptions could have the same character. Of course, there's
a lot specific to the Amish in here, but I
don't want it to be lost on the listeners that
this is an issue of great importance across the country,
(17:54):
not just for the Amish community.
Speaker 4 (17:58):
So weve I want to unpacked a little bit, and
starting with the last point you were making about as
applied and facial challenges, they've you know, this has certainly
been framed as an as applied challenge as opposed to
a facial challenge, but maybe you can talk about the
difference between as applied and facial challenges.
Speaker 5 (18:17):
Well, and I think there's it doesn't come out much
in the cert petition, and I don't know that it'll
make a major difference to the outcome of the case,
depending on what the court may be interested in doing
with this case if it were to grant Cercherai. But
what they were trying to do, I think is avoid
this second circuit precedent that had come out of Connecticut.
(18:41):
Connecticut at a similar repeal of its religious exemption law
and the petition the planets here were in a tough
spot because of that circuit precedent, and so they had
to argue that there was something different, and they do
have a plausible argument that they have a different kind
of injury because their resistance to modern technology, modern medicine
(19:05):
and all that is so unique to their faith, and
that was the impetus behind Yoda.
Speaker 3 (19:11):
At least the conventional reading of Yoder is.
Speaker 5 (19:14):
That there are certain burdens that for certain faiths are
so destructive that it would essentially undermine their ability to
practice their religion at all.
Speaker 3 (19:25):
And so that's the as applied.
Speaker 4 (19:27):
Challenge, right, and you're coming back to Smith. You talked
about how you know the dispute we have here. The
central dispute is whether or not, in the first instance,
on this free exercise claim, whether or not this falls
within this law falls within Smith, It's neutral, it's generally applicable,
(19:48):
and therefore subject to, as you mentioned, rational basis review.
Just so we know, you know the field we'rend you know,
tell us what is that rational basis standard? What standard
does the law need to meet to survive constitutional scrutiny?
Speaker 3 (20:02):
Under that standard? Well, it is the lowest form of scrutiny.
Speaker 5 (20:08):
Did the state have a reason related to the burden
that imposed on the right and courts it's not hard
for courts to find a rational basis. They can look
at the face of the statute, they can look at
legislative findings. They can even conceive of a rational basis
from the text or structure of the statute. It's going
(20:33):
to be very hard for a plaintiffs to win under
a rational basis standard.
Speaker 3 (20:37):
And so that's why Smith has come.
Speaker 5 (20:39):
Under such fire from as this group, this audience knows
for many years, it's very hard to win once the
court has decided that Smith is the proper test.
Speaker 4 (20:51):
Right, So fair to say that so long as the
court can say that the states chosen a means for
addressing a legitimate government interest rationally related to achieving the goal,
it's going to be able to survive that type of scrutiny.
Speaker 3 (21:04):
That's right.
Speaker 4 (21:06):
But if the law is it does not fall under Smith,
and we don't have this rational basis test, then we're
looking at strict scrutiny. Correct, that's right, And this is
a test that is sort of at the other end
of the spectrum. This is a very difficult test to me.
(21:27):
Can you talk about the strict scrutiny standard.
Speaker 5 (21:30):
Well, the state will have to show a compelling state interest,
and that the means it's employed to achieve that interests
are narrowly tailored, and states have not been in the
habit of doing that. In re exercise challenges under the
First Amendment since Smith, and so if Smith were if
(21:54):
you're in the world of a Smith exception, or if
Smith is reconsidered or repaired back in any way, then
we'll probably see a lot more successful religious liberty challenges
because it is hard to satisfy strict scrutiny. It's often
said that it's fatal in fact, and I think maybe
(22:14):
the best analogy for what that might look like is
right there in the First Amendment, in the free speech clause.
If the government is discriminating based on the content of
speech in general, they will have to overcome strict scrutiny.
And most laws will fail under strict scrutiny unless they
have a sufficient historical pedigree in some cases, so this
(22:35):
is the whole ballgame for a basic free exercise claim,
does Smith applier?
Speaker 3 (22:41):
Does it not?
Speaker 5 (22:42):
And the exceptions thus far, at least until the last
five years, have been construed very narrowly, and so we're
going to see in this case will that change And
we talk about that more when we get to the petition.
Speaker 4 (22:56):
Let's talk about that a little bit right now, just
because I think it matters to understanding what the lower
courts did in this case or what they didn't do.
Speaker 3 (23:07):
You know, we've talked about Smith.
Speaker 4 (23:08):
It's issued thirty five years ago, and since that time,
the courts issued decisions.
Speaker 3 (23:14):
As you just noted.
Speaker 4 (23:15):
Mainly, you know, in recent years they clarify Smith, some
have said narrowed Smith and the application of when strict
scrutiny is going to be applied. And I'd like to
talk about some of those cases with you quickly. So
we have some recent Supreme Court cases like Tendon versus
(23:37):
news versus Newsome, We've got Fulden versus City of Philadelphia
on free exercise, and then we have mob Mood v. Tailor,
which gets into the yoder claim. But can you talk
a little bit about how some of these cases have
clarified have clarified.
Speaker 5 (23:53):
Smith, right, So, I think backing up even further, for
many members of this audience, this may well be familiar.
But for me coming to this case, I kind of
assumed that overturning Smith was the big game that everyone
(24:14):
needed to be focused on. And there have been so
many law review articles how to replace Smith and what
should come next? Should it be strict scrutiny should be
a historical approach, and what we've seen in the last
five years is that the court has been able to
interpret and apply Smith in a way that seems a
lot more fair to the religious plaintiffs in these cases
(24:37):
by really clarifying two i'd say two categories of exception
and there may be more. One is that a law
is not generally applicable and neutral when it relies on
a system of individualized exemptions. And so when you have
the government making case by case determinations about whether the
(24:59):
law should apply to someone, that is not neutral, and
in that circumstance, religion needs to be treated as well
as the reasons that justify an exception from the law,
the secular reasons. And the second category gets at what
I just said a little bit more directly, which is
(25:20):
whatever the state's secular reason is for exempting some conduct
or activity from a general burden, religion has to be
treated at least as favorably.
Speaker 3 (25:31):
And so we saw this a.
Speaker 5 (25:33):
Lot in the church shut down cases during the virus times,
where you had governments who were keeping restrictions on capacity.
Speaker 3 (25:45):
And the types of activities that could be done.
Speaker 5 (25:47):
In church or worship services, and yet they were keeping
open or allowing to operate other businesses, secular businesses, whether
it was a hair salon or bowling alley or movie theater,
something like that. And the Supreme Court, starting in the
Brooklyn Diocese case, but then really in tandem versus Newsome,
(26:10):
said that if you're allowing secular exemptions, you have to
treat religion at least as favorably, what some have called
a most favored nation approach.
Speaker 3 (26:20):
And this is new.
Speaker 5 (26:22):
This is new because it was there in Smith, it
was there in Lakumi, but it hadn't really been refined
into a doctrine. And so we'll see in the coming years,
we'll see in this case if the Court wants to
continue to clarify those exceptions and.
Speaker 3 (26:43):
Makes Smith more livable, more workable.
Speaker 5 (26:46):
For really sympathetic and compelling plain IFFs like these ones.
Speaker 4 (26:51):
All Right, I think that's a good jumping off point
to talk about the specific arguments made in this case
by the plaintiffs. And I think these are arguments that
have were made in the District cord, they've been made
in the second Circuit, and we see them in the
sert petition. To begin with, I understand the planets can
sede that a rational basis review were applied under Smith,
they would not be successful in this suit, and they
(27:14):
believe it would be upheld. And they make essentially four
arguments for why this case falls outside of Smith and
therefore New York's law would need to pass strict scrutiny.
The first is that this law is not generally applicable.
The second is that it's not neutral. The third is
that this is the hybrid rights claim, is that this
(27:37):
case involves the free exercise clause in conjunction with other
constitutional protections, implicating Wisconsin v.
Speaker 3 (27:45):
Yoder or mack Mood type of analysis.
Speaker 4 (27:48):
And fourth, they also have argued that this New York
law is outside of Smith because unlike the law issue
in Smith, this law is amenable to religious exemptions and
it would not be, so to speak, borrowing from Smith
courting anarchy to allow for such exemptions. And I think
part of that point that's made in the briefing, including
(28:08):
your own, is when you have forty six states that
have such exemptions, that's a big indicator. I want to
walk through these with you, just these arguments, you know,
just for you to put a point on them, and then.
Speaker 3 (28:21):
We'll talk about the lower court rulings.
Speaker 4 (28:24):
Let's talk about those generally why the law is not
generally applicable according to the plaintiffs.
Speaker 5 (28:32):
Yeah, so that's where we focused a lot of our
briefing as a MEIKI, And those are kind of the
two categories I just spoke on the fact that there's
a medical exemption in New York is enough to hold
that it's not a generally applicable and neutral law because
(28:53):
the state is giving pride of place, giving special solicitude
to a second reason for objecting, while denying the same
treatment for a religious group, and so it's essentially a
discrimination principle.
Speaker 3 (29:10):
Now New York comes.
Speaker 5 (29:11):
Back and they say, well, it's different because we have
different reasons for allowing a health exemption. If there's some contraindication,
then there's some harm that could come to the child
from not taking or from taking the vaccine, and New
York cares about that. And I think petitioners have a
(29:32):
pretty good response to that, which is, well, plaintiffs have
hey religious view of harm.
Speaker 3 (29:36):
They have a different view of harm that New.
Speaker 5 (29:38):
York is discounting when it says that the health exemption
is a type of harm we care about, but the
arm to the soul of the child is one we
don't care about. That's when strict scrutiny should apply. And
I think under Tanton that's a pretty good argument, and
we've emphasized that in our briefs on the hybrid rights argument.
(30:05):
Hybrid rights is one of these areas that has been
somewhat of a mystery since Smith, because Smith has to
deal with Yoder, which we already talked about. And what
Smith says is well, Yoda's explainable by the fact that
it dealt with two rights at once, the free exercise
right and the parental right to dictate and form the
(30:26):
upbringing of one's child. And since then the Second Circuit
in a series of cases, had said this is basically
a dead end. There is no viable hybrid rights claim
in the Second Circuit. Now they said all of this
before the decision in Mamood last term, which really changes
(30:48):
changes the landscape for hybrid rights.
Speaker 3 (30:52):
Ma Mood doesn't use the diction.
Speaker 5 (30:55):
The precise terminology of hybrid rights as much. It's treating
the Yoder claim the religious right to inculcate values in
one's children, as an ordinary free exercise claim. You don't
have to prove that you need two different constitutional tests
to invoke it, and that's that's really important.
Speaker 3 (31:19):
And then the fourth category.
Speaker 5 (31:21):
You've you've spoken of as the whether the law is
amenable to exemptions or whether it's the kind of thing
that would cause anarchy. I could see that coming into play,
but we don't have quite as much doctrine on that one.
Speaker 4 (31:35):
All right, let's uh, let's talk about the decisions from
the lower courts and starting and starting with the district court.
I think the District Court, you know, was faced for
the request for preliminary injunction from the plaintiffs and a
motion to dismiss under rule twelve B six from New York,
and it wound up granting the motion to dismiss and
(31:55):
therefore denying the p I request as moot in this case.
And it looks, you know, and the disre Court's decision
was very much driven by the court feeling bound by
the Second Circuit decision you mentioned earlier, the We the
Patriots case that I think concerned you know, another you know,
(32:17):
vaccine case. And so is that your read of the
disrec Court opinion that basically We the Patriots resolves this
issue is binding Second Circuit precedent, and that's why this
claim fails.
Speaker 5 (32:31):
Yeah, that's that's right, and I think the court comes
up with some new rationality, the idea that well, maybe
religious exemptions in some way are more dangerous to the
state's interest than secular exemptions, because you could have lots
of people together congregating who are not vaccinated. And I
(32:56):
just think petitioners have a pretty good response to it
that if you look at the individual rul's religious objection,
that the damage the harm to the state's interest is
equal whether the student is not vaccinated for religious reasons
or medical reasons. If the state's interest is promoting the
(33:16):
most amount of vaccination, then these two types of objections
undermine the state interest in the same way. So with
that wrinkle, I don't think there was much new for
the court to say. And so it goes up to
the Second Circuit and the Amish make the same our
(33:38):
arguments that we've discussed, I think, in of course a
greater detail than they couldn't their complaint, and there's oral argument,
and the Court was pretty skeptical or oral argument, I
think because we've had Smith for so long, so you
have thirty years of looking at a law like this
(33:58):
and saying, well, it's pretty general.
Speaker 3 (34:01):
The State's going to win.
Speaker 5 (34:03):
And of course that's what the Second Circuit ends up saying.
Speaker 4 (34:10):
I'm sorry, I was going to say, let's talk about
that that Second Circuit opinion.
Speaker 3 (34:13):
It's interesting to hear how oral argument was.
Speaker 4 (34:16):
But you you know, the second Circuit, as as you know,
is addressing each of the each of the reasons the
plaintiffs have offered for why this false. Outside Smith and
I think it's kind of interesting to look at the
Second circuits analysis of this. It begins with the neutrality
(34:37):
and general applicability uh issues, and the Second Circuit concludes
that the law is neutral on its face and says
it doesn't quote target or affirmatively prohibit religious practices close quote.
It also says, they quote the law simply applies New
York's school immunization requirements to all school children who do
(35:01):
not qualify for the laws medical exemption, and it uh,
you know, it then goes on to say that the
act of repealing the religious exemption did not, in it
of itself, transmute the otherwise neutral law into one that
targets religious beliefs. They're they're they're quoting we the Patriots,
(35:22):
so you know, they're they're for those reasons. They're saying
they don't see any anti religious bias. So what are
your thoughts on those rationales offered by the court.
Speaker 5 (35:35):
Well, I think, unfortunately, because of the circuit precedent, it was.
Speaker 3 (35:40):
Unsurprising that that it came out this way.
Speaker 5 (35:44):
The Connecticut case was similar, there are some differences between
the laws there. I think that New York's regime is
a better case for the application of Fulton and avoiding
Smith and rational basis because in New York you have
this discretionary regime where the physician is any physician in
(36:07):
the state can create a medical exemption, can certify that
the child may have a health objection to the vaccine,
and then the school can reject that or ask for
more information, at least suggesting that there's some additional layer
of discretion by the school administrators. And so I think
(36:28):
that really cuts against New York's position that this is
an objective, mandatory category that's applied with real predictability in
the state and takes it out of the Fulton category.
Speaker 3 (36:44):
And we see this on the ground in the complaint.
Speaker 5 (36:47):
There are statistics from schools that have I think as
many as fifty percent of the children are not vaccinated
for medical reasons, and if the exceptions being applied so arbitrarily,
it's us that there is a measure of discretion that
either from physicians or schools or the state, which should
(37:08):
allow religion to be treated on the same terms and
should require the state to satisfy strict scrutiny.
Speaker 3 (37:16):
Right.
Speaker 4 (37:16):
And it seems also that to the point you made
earlier that you know, when it comes to treatment of
comparable secular activity is really it does turn on how
you define that word comparable, how you apply that word comparable.
And I think what you discussed earlier, and I think
what we've seen some of the recent Supreme Court case
(37:36):
law may not be on the same page as what
the Second Circuit is saying in terms of what comparable
means in this context.
Speaker 3 (37:42):
Could you could you revisit revisit that a little bit.
Speaker 5 (37:46):
Well, I think there's some intuitive pull to what the
Second Circuit is saying when they when they point out
that you could have clusters of communities that have religious
objections and so the risk of infectious disease is higher
when you have a lot of people who are not vaccinated.
(38:08):
I mean that makes sense at first, blush, but the
implication of that for free exercise rights is really worrying.
Just because there are more people near me who practice
my religion the same way our religious objection should be
should be weaker, or that we should be subject to
(38:31):
greater burdens from the state's public health regime. That's just
not how the Supreme Court treats religious rights. It's not
how any of the COVID cases came out. The Court
wasn't counting the number of seats in the church. Now
some courts did do that, but the Supreme Court never
endorsed such a method that said, well, I it's a
(38:53):
really big church, then you don't have religious rights anymore
in a pandemic. I think that has been carted by
Tandon versus Newsome. And if it hasn't, then the Supreme
Court needs the opportunity to take the opportunity to say
that explicitly.
Speaker 4 (39:11):
Let's before we move to the CIRT petition, I want
to talk briefly about the second circuits, you know, reasoning
on the hybrid rites or the Yoder claim. And in
this case, they did reject the plaintiff's comparison to Yoder,
and they specifically were pointing to the limits of Yoder's holding,
I think sort of looking at it as being limited
to its facts, and in so doing they relied on
(39:33):
the Fourth Circuit's opinion in Modern Mood, which was which
was later overturned by the Supreme Court. Maybe can you
talk a little bit about that reasoning how significant or
not significant it may have been in this decision.
Speaker 5 (39:47):
Well, I think the Yoder case, if it's limited to
its facts, then petitioners should still win because they are
the same group of people alleging the same kind of
burden on the same religion. And so at a minute, mom,
they should get a vacator of the Second Circuit decision
for reconsideration in light of Ma Mood, and they've asked.
Speaker 3 (40:08):
For that at the bottom of their curpetition.
Speaker 5 (40:11):
It wouldn't be I think the most satisfying outcome for
critics of Smith and for practitioners in the religious liberty
space if it were such a narrow result in a
narrow wind for these plaintiffs. But what Ma Mood did,
I think was bring Yoda to the fore to back
(40:33):
into the fold as the seminal free exercise case, that
it should be that it's not something.
Speaker 3 (40:43):
For a particular group of people at a particular time.
Speaker 5 (40:46):
There is a fundamental, free exercise right to direct the
religious upbringing of one's children, and when the States substantially.
Speaker 3 (40:55):
Interferes with that, then we're outside of Smith.
Speaker 5 (40:58):
And the court in Ma Mood also resurrected or brought
back to mind to the Barnet case, which many people
I think learn in First Amendment class or a thought
of as one of these landmarks free speech cases. I
mean that First Amendment and it's also a religion case
(41:20):
that the Jehovah's witnesses in that case were asked to
say the pledge of allegiance and to salute the flag,
and they said that was a direct coercion on them.
It was a violation of their religious beliefs to affirm
a pledge to the flag. And so we have now
another line of doctrine to get away from Smith.
Speaker 3 (41:43):
And the court was emphatic on that.
Speaker 5 (41:46):
And so Ma Mood of course had these really colorful
facts about what was being taught in the public schools
and the parental objections, but its reasoning was not at
all limited to those facts.
Speaker 4 (41:58):
Yeah, but you know, you know, speaking of these cases,
let's talk briefly about the cert petition and the questions
that it raises that it's offering to the court. The
certain petition presents two questions. I mean, the first is
whether a law that categorically disallows religious exemptions but permits
secular exemptions and other comparable secular activity violates the free
(42:21):
exercise clause as applies as applied to the Amish parents
and schools in this case. The second question is whether
Smith should be reconsidered. Let's let's just talk about those briefly.
As to the first question, the petitioners have, you know,
identify a split. That's also that they are They are
(42:43):
really citing and quoting directly from Justice Thomas dissent from
a denial of certain doctor a versus Hochel. That dissent
was joined by Justice Leto and Justice Gorsich. And it's
and that case talks about an acknowledged split. That's why
spread and entrenched and worth addressing. And so I'd just
(43:06):
like to get your thought whether you know this, you
know the way that this case is coming up, and
given you know these words from uh, you know, from
the sitting justices, uh, you know, thoughts about how that
that plays out in the potentiality for Circia granted.
Speaker 5 (43:23):
Right, so they rely on this doctor a uh descent
from denial by Justice Thomas and joined by Justice as
A Lado and Gorsic And and so if you have three,
the question is is there a fourth to address this
circuit split? And the basic question of the split is
does a rational basis apply to a law that exempts
(43:47):
exempts religious secular conduct but not religious conduct?
Speaker 3 (43:52):
And Fulton seemed.
Speaker 5 (43:53):
To answer that, But there are still more wrinkles, and so,
for example, can New York rely on the fact that
its secular exemption gives a benefit to the students by
protecting them from whatever contraindication they might have, or is
the analysis to be focused just on the degree to
(44:15):
which the exemption undermines the stated interest in immunization generally?
And this goes much further and deeper than just vaccines.
Of course, there are cases around the circuits dealing with
vaccines in particular. Maybe the doctor A case was not
granted because it was tied to COVID and.
Speaker 3 (44:38):
All of that controversy.
Speaker 5 (44:41):
Now with some distance, now we're talking about school vaccine
regimes that have been around forever and will be around
for a long time, and so maybe there's some more
enduring interest in the question apart from the pandemic.
Speaker 4 (44:58):
And let's visit briefly before we get to Q and
A about the second question. The second question prison just
tees up straightforward whether Smith should be reconsidered. Now, you know,
it's postured in the sense of, obviously the court need
not reach this if it goes with the petitioners on
the result they think should come from the first question.
(45:18):
But they say, essentially, if under the Smith regime this
is just going to fit neatly inter rational basis review,
then maybe Smith should be reconsidered. My question to you
is just what do you think the chances are that
that may happen. I mean, we have a number of
amaxust briefs already, including from some scholars and folks who are.
Speaker 3 (45:37):
Saying that that's what needs to happen.
Speaker 4 (45:39):
What do you think the chances are this case could
be the one that that happens.
Speaker 3 (45:47):
I don't know about odds.
Speaker 5 (45:48):
I think I think that the Court obviously has an
appetite for revisiting Smith, and it's been searching for that replacement.
And so in Fulton you have a concurrence from Justice
Barrett expressing concern that just because the law is really
(46:10):
general doesn't mean that it doesn't work a hard burden
on religious practitioners. And there's probably some good support in
the history. I know that Professor Barclay filed and amachus
a brief on this for a higher test, and maybe
it's not identical to strict scrutiny, maybe it should be
(46:31):
more historically grounded, but at least the concurrences in Fulton
suggests the court is interested.
Speaker 3 (46:42):
Is this the case to do it? Well?
Speaker 5 (46:45):
I think it depends a little bit on whether you
think this the outcome here should be dictated by Bolton
and Tandeon. If the Court will expand those exceptions, then
maybe it need not reconsider Smith and should leave that
for another day. Now, we Alabama didn't take a strong
(47:07):
position on what should replace Smith.
Speaker 3 (47:10):
It seems to me that.
Speaker 5 (47:13):
That Smith has serious problems, and I think those were
illustrated in the pandemic, where even if you could devise
a generally applicable burden on people, that the government shouldn't
be closing church without satisfying some heightened level of scrutiny.
And so I think it's pretty obvious that Smith is unworkable.
(47:36):
For certain fact patterns, and we're going to find out
if this is one of them.
Speaker 4 (47:40):
All right, thanks, Bob, I'm going to go to some
Q and A. Right now, we have an anonymous attendee
who's asking for your thoughts about whether and how courts
should weigh a broader public health risk when you have
religious community that's not completely isolated, and maybe in a
rural relative insular community, but not completely isolated. And if
(48:04):
it says if the Amish, they may live separately, but
they're not completely isolated. So I take that to be
you know, if you're looking at the broader public health concerns,
you how to course weigh that?
Speaker 3 (48:18):
Well, the problem.
Speaker 5 (48:19):
Is in the status quot they don't have to weigh
it at all because of the application of rational basis.
All New York has to do is say, we have
a health interest in promoting vaccination, and so the particular
facts of these plaintiffs and whether forcing them to vaccinate
or to shutter their schools can achieve it is necessary
(48:41):
to achieve that interest is not before the court.
Speaker 3 (48:44):
They just can avoid the question altogether.
Speaker 5 (48:47):
Now, Florida filed a brief in this case in the
Supreme Court, which I think goes into this in great detail.
And what Florida says is if you apply some heightened scrutiny,
then courts will be required to examine exactly factors like
what will it take to produce herd immunity in these.
Speaker 3 (49:09):
Parts of this state?
Speaker 5 (49:10):
What level of vaccination is that different for different types
of diseases? And I think the evidence is yes that
a blanket rule for all types of vaccines and immunizations
is not one that's narrowly tailored to produce the herd
immunity needed for the state's interest.
Speaker 3 (49:30):
And thanks Bob.
Speaker 4 (49:31):
I have another question from an anonymous attendee that's asking
whether the Supreme Court may be concerned that any ruling
in favor of petitioners could lead to more cases involving
non traditional religions and sincerely held religious beliefs.
Speaker 5 (49:47):
Sorry, the question is will will the Supreme Court take
more cases involving non traditional religions?
Speaker 4 (49:57):
Yeah, the question is whether they would be concerned that
are ruling in favor of petitioners would lead to many
more cases that involve non traditional religions and sincerely held beliefs.
Speaker 3 (50:08):
I don't think so.
Speaker 5 (50:09):
I think the courts have ways of testing for sincerely
held religious beliefs.
Speaker 3 (50:19):
It's not an area that's.
Speaker 5 (50:21):
Litigated, and there may be eventually some pressure. I mean,
we see unfortunately kind of what I think is an
abuse of the free exercise clause where plaintiffs try to
achieve political objectives under the banner of religion, and we've
seen it as a kind of tool of political activism
(50:43):
from groups that don't seem to be sincere and I
have confidence that the courts will be able to sort
that out. Whether it will take the Supreme Court eventually
developing doctrine in that area, I don't know, but I
don't think it's the type of thing that the Supreme
that is on the forefront of the Court's minds. They
have a real problem with the doctrine under Smith now
(51:06):
that needs to be resolved to protect these kinds of plaintiffs,
and then I think can worry about false positives later
down the line.
Speaker 3 (51:17):
All right, thanks, Bob.
Speaker 4 (51:18):
I think we've we're getting close to our full hour here,
and I've greatly appreciated having this discussion with you. It's
been it's been a fascinating discussion. I know we'll be
watching what happens with this case and watching with interest
to see if it's the case that the court will accept.
(51:41):
But I greatly appreciate your time. It's been a wonderful discussion.
Speaker 1 (51:47):
Thank you, Judge, Thank you for listening to this episode
of fed sock Forums, a podcast of the Federal Society's
practice groups. For more information about the Federal Society, the
practice groups, and to become a Federal Society Man, please
visit our website at fedsoc dot org.
Speaker 3 (52:05):
Mm hmm
Welcome to fedsock Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society virtual event.
Speaker 3 (00:22):
My name is Marco J.
Speaker 2 (00:24):
Lloyd and an Assistant Dirictor of Practice Routes for the
Federalist Society. Today we're excited to host a litigation update
on Villa Miller v. MacDonald featuring Bob Overring. Bob is
a Deputy Solicitor in Alabama's Solicitor General Division and an
adjunct professor at Faulkner Law School. He clerked in the
Ninth Circuit Court of Appeals and served as counsel to
(00:46):
the US Senate Judiciary Committee. He receives his law degree
from Yale Law School. Our moderator today is Judge Shawn Jordan.
Judge Jordan is a judge in the United States District
Court for the Eastern District of ten Exis. Before this,
he was a partner at Jackson Walker LLP, where it
was co chair of the firm's Appellet practice group. Prior
(01:08):
to entering private practice, he served as Principal Deputy Solicitor
General for the State of Texas. He also served in
the United States Army as an infantryman and paratrooper in
the eighty second Airborne Division. If you'd like to learn
more about today's speakers, their full buyo.
Speaker 3 (01:26):
Is going viewed on our website bedsok dot org.
Speaker 2 (01:29):
If you have a question at any point today's program,
please enter into the Q and A function at the
bottom of your zoom window. We will do our best
to answer as many as we can. Finally, I'll note that,
as always, the Fertile Society takes no position on particular
legal or public policy issues, and all expressions opinion are
those with the speakers. With that, your honor, thank you
(01:50):
for joining us today, and the floor is yours.
Speaker 3 (01:53):
Thank you.
Speaker 4 (01:53):
Good afternoon, everyone, and welcome to this litigation update on
Miller v.
Speaker 3 (01:57):
MacDonald.
Speaker 4 (01:59):
This is a case coming out of the Second Circuit
with a cert petition now pending at the Supreme Court.
It's an interesting free exercise clause case involving a New
York statute on vaccination of school children. At issue in
the case is a relatively recent change in New york
It's applicable vaccination law. For over half a century, dating
(02:19):
back to the nineteen sixties, New York allowed both medical
and religious exemptions to a school vaccine requirement. That changed
in twenty nineteen when the New York legislature eliminated the
religious exemption. This case arises from that change in New
York law, and particularly its application to the Amish community.
The plaintiffs, who are comprised of Amish schools and parents,
(02:42):
have challenged the validity of the New York law as
applied to them under the.
Speaker 3 (02:46):
Free exercise clause.
Speaker 4 (02:48):
There's also a so called hybrid rights claim under Wisconsin
versus Yoder, which we'll also talk about today and for
this discussion. As Marco mentioned, we're most fortunate to have
Bob Overing, the Deputyesser General in Alabama's SG office. Bob
has participated in this case at both the Second Circuit
and the Supreme Court stage as of litigation, as Alabama
(03:09):
has led a coalition of states that have filed AMAICUST
briefs on the issues that are before the court. So Bob,
I'd like to begin our discussion with you helping us
understand the background of the case a bit better, Can
you tell us about the New York law at issue
and similar laws in other states?
Speaker 5 (03:31):
Right, well, thanks and good afternoon. Your honor depends how
far back you want to go.
Speaker 3 (03:36):
Right.
Speaker 5 (03:37):
So, we have school immunization requirements in every state in
the country.
Speaker 3 (03:43):
Students have to receive.
Speaker 5 (03:45):
A list of vaccines to attend school, and many of
those requirements date back to the eighteen hundreds. But similarly
longstanding is the practice of allowing religious exemptions and objections
to those requirements. At least for decades, virtually all states
have had religious exemptions, including New York, and the Amish
(04:09):
community in New York and probably elsewhere takes advantage of
the opportunity to opt out from that regime. And they
have multiple reasons for that. They are people who put
their trust in God, not so much in modern medicine.
And they also object because of the way that vaccines.
(04:32):
Some of the vaccines were developed using cell lines from
aborted babies. Now, they've been this way for centuries, for decades,
and their practice hasn't changed, but New York's has so.
In twenty nineteen, New York amended its law to remove
religious exemptions. Apparently California had done so in twenty fifteen.
(04:54):
So I think New York is the second state, and
now so have Maine and Connecticut. So we have four
or states who have removed religious exemptions from the school
immunization requirements and forty six states that provide some form
of religious exemptions, including Alabama. And I should say that
(05:15):
we're participating as amigus, and I'm happy to talk about
our arguments, but what I say today is in my
personal capacity, not representing the state.
Speaker 4 (05:25):
All Right, Thanks Bob, and we'll definitely going to talk
to you about Alabama's briefing in this. I want to
ask you a little bit you get a little bit
more granular on this New York law.
Speaker 3 (05:36):
This changed in twenty nineteen.
Speaker 4 (05:38):
Now my understanding is it's a law that applies to
both public and private schools, and that the penalties for
violations of this law are pretty can be pretty steep,
thousands of dollars in civil penalties for violation. Maybe you
can talk a little bit about those specifics of the
law and then we'll get into this application to the
(06:00):
Amish here.
Speaker 5 (06:01):
That's right, So the penalties at least the way New
York is interpreted them. I'm not sure if that's on
the face of the statute or by regulation, but it's
two thousand.
Speaker 3 (06:13):
Dollars per student per school day. So too, if you.
Speaker 5 (06:17):
Had one hundred students, two hundred thousand dollars per school
day could easily add up to millions in penalties every
school year. And as you can imagine, these are not
huge schools that we're talking about in rural Amish country,
and yet they would be facing millions of dollars in
(06:38):
potential penalties. And the other important feature of the law
critical for the petitioner's case here is that it does
provide for medical or health exemptions. And the way that
works is that any student who can get a doctor's
note from any physician licensed in New York certifies that
(07:01):
the immunization may be detrimental to a child's health.
Speaker 3 (07:05):
And that's pretty much all we know.
Speaker 5 (07:07):
They've issued more guidance, the state has, and then New
York City and the public schools have issued more guidance
because they've had a lot of problems with the arbitrary
and varying.
Speaker 3 (07:18):
Application of the medical exemption.
Speaker 5 (07:21):
But the face of the statue just says detrimental to
a child's health. And so you've got this sizable or
vague carve out for medical exemptions and none at all
for religious exemptions.
Speaker 4 (07:37):
We're going to get into that as we delve into
the issues, but that's very helpful background on how this
law operates.
Speaker 3 (07:43):
Now.
Speaker 4 (07:43):
You know, we've talked about how this change in New
York law came in twenty nineteen, but I understand that
this case arises a few years later in twenty twenty two,
when New York authorities initiated enforcement action against these certain
amorged schools, which again I understand are private schools in
(08:04):
homage communities in rural New York State. And so can
you give us a bit of the background of, you know,
this enforcement action.
Speaker 3 (08:14):
That winds up leading to the filing in this case.
Speaker 5 (08:17):
Right, So, there's there's sort of a lull between the
time when the laws enacted and then this administrative action
is brought against the Amish communities.
Speaker 3 (08:27):
I think there's some evidence in the.
Speaker 5 (08:29):
Record that the New York legislators had religious communities like
these in mind when it repealed the exemption, and yet
it took about two years, which I think the petitioners
can credibly say undermines the state's proffered interest.
Speaker 3 (08:50):
About some time, after maybe two.
Speaker 5 (08:53):
Years, the Department of Health gives them a notice that
says we think you're out of com clients and audits
their records.
Speaker 3 (09:02):
Of course, they.
Speaker 5 (09:03):
Don't have vaccine records as far as I know, because
they don't believe in the practice, they don't use them,
and so then they have to go through the administrative
law proceeding in the Department of Health, and the alj
found that indeed they had.
Speaker 3 (09:20):
Violated the school.
Speaker 5 (09:23):
Immunization mandate, but recommended no penalties, basically saying, look, there's
no it would be unfair because they're just hearing about
this now and they didn't know that. I think they
may not have known that the repeal had even taken place.
But the Department of Health agreed that they had violated
(09:46):
the law and then sustained penalties, which in this case
or in their case, totaled one hundred and eighteen thousand dollars,
which in the state's view was very generous that they actually.
Speaker 3 (09:59):
Said that, and.
Speaker 5 (10:02):
In some sense that's true because they could have issued
potentially millions or tens of millions of dollars in penalties
to these schools which they could not afford, and so
you get this lawsuit in June of twenty twenty three
to resist the penalties and enforcement of them in the future.
Speaker 3 (10:23):
And they're basically driven here.
Speaker 5 (10:27):
My feeling from reading the materials is that these are
very reluctant plaintiffs, That these are not people who want
to be litigating, who want to be suing the state,
but have been driven here because they view it as
having no choice.
Speaker 3 (10:41):
You know, that brings up a good point.
Speaker 4 (10:43):
You know, these schools, by the way, in terms of
these penalties, My understanding is these are all pretty small schools.
Speaker 3 (10:51):
They don't have a large number of students in them.
Speaker 4 (10:54):
They're in these amish communities, and the minderstanding is the
entire homage population in New York is around twenty one thousand.
And I want to talk a little bit before we
get into the specifics of this suit. You just were
referencing that the plaintiffs are reluctant, and it may be
a good point to talk a bit about these amaged
schools and the community that's at the center of this litigation.
(11:15):
You know, over fifty years ago in Wisconsin, versus Yoda,
the Supreme Court observed that the Amish share, I'm quoting
a fundamental belief that salvation requires life in a church community,
separate and apart from the world and worldly influence. And
more recently, Justice Gorsuch observed in mass versus Fillmore County
that the Amish quote, are religiously committed to living separately
(11:39):
from the modern world. So it does seem that now
as then, the Amish do live apart from contemporary society
and the trappings of the modern world, so to speak.
And you've talked a bit a few minutes ago about
you know, religious objections to vaccination laws. Maybe you can
talk a bit about, you know, where the Amish stand
(11:59):
on this and how we get here with this community.
Speaker 5 (12:03):
Right well, and we do have some material in the
record on this, even though it's on motion to dismiss,
which I'm sure we'll get to because of that administrative hearing,
many representatives from the community showed up to explain, this
is our way.
Speaker 3 (12:21):
Of life, this is why we object.
Speaker 5 (12:23):
These are sincere religious objections, and as you said, it's
a traditional life, a life of seclusion. They use pre
industrial equipment, make their own clothes and so this modern
technology of the vaccine just doesn't fit well in their
way of life, and they have a religious objection that
(12:43):
it requires them to trust a form of science and
technology that they don't believe is required or even conflicts
with their trust and faith in God to protect them,
to protect the health of their children. Beyond that, they
have said that one of their religious beliefs is that
(13:05):
they need to school their children to educate them in
the faith and for the socialization. Now famously, of course
in Yoda, that is not indefinite. They do object to
compulsory education until all the way until adulthood, but at
least when the children are young, it's important to have
(13:25):
them in school.
Speaker 3 (13:26):
And they also say that because so much.
Speaker 5 (13:29):
Of their way of life is dependent on physical manual labor,
that it's just not practical to homeschool them. And so
there are all of these things, compulsory education, the vaccine's
modern medicine, the upbringing of children, and educating all kind
of come together for I think a very credible, very sincere,
(13:50):
and very powerful religious objection to what New York is
trying to do.
Speaker 4 (13:56):
And Bob, there's there's not been any dispute in the
case that these are sincerely held religious beliefs. I mean,
that's not been part of the defense, right, all right,
So let's let's get to talking about, you know, the
action that was brought initially in the Western District of
New York. We have a group of Amish schools and
parents that file this suit. They bring an as applied
(14:20):
challenge to the New York Vaccination Law, which I'm going
to refer to sometimes as this public Health law or
PHL twenty one sixty four. The claim is grounded in
the Free Exercise Clause as applied to the States through
the Fourteenth Amendment. There's also this hybrid rights claim again
under the Supreme Court's decision in Wisconsin v.
Speaker 3 (14:40):
Yoder.
Speaker 4 (14:40):
But let's start with the as applied challenge under the
free exercise clause, and let's talk a little bit about
what that what that claim you know, looks like. We
know the free exercise Clause bars the governor from making
any law.
Speaker 3 (14:57):
That prohibits the free exercise of religion.
Speaker 4 (15:01):
And for our listeners benefit, Bob, can you describe the
free exercise claim that's being asserted by these plaintiffs.
Speaker 3 (15:09):
And maybe walk through a little bit.
Speaker 4 (15:11):
I think we have the schools, and then we have
a couple of the few individuals.
Speaker 5 (15:16):
Well, of course, with the free exercise clause, we're not
riding on a blank slate. Everyone knows the big touchstone
of modern free exercise jurisprudence's employment Division versus Smith. And
so even starting with the complaint, there is a ton
of analysis on Smith. And the rule from Smith has
(15:37):
been that a government's burden on religion does not need
to satisfy strict scrutiny if it is a law of
neutral and general applicability. And so the complaint spends a
lot of time explaining how the immunization regime is not neutral.
It was targeted because it was a repeal of a
(16:00):
religious exemption. So the law passed in twenty nineteen was
specific to religion.
Speaker 3 (16:06):
And then it's not generally.
Speaker 5 (16:07):
Applicable because there's this huge carve out for medical and
health exemptions. And so the complaint itself argues that this
claim has to be evaluated under strict scrutiny, and they
say that it fails. It's not narrowly tailored because of
the exemptions, because adults don't have to be vaccinated in
(16:27):
New York, and because a lot of the immunizations don't
protect other school children or other people in New York
State from transmission. Many vaccines, such as tetanus and others
don't prevent transmission, and so the stated health interest is
(16:47):
not met by the regime that is so broad in
its requirements and burden on their religion.
Speaker 3 (16:56):
They have, of course a.
Speaker 5 (16:57):
Lot in the complaint about their particular religious practices.
Speaker 3 (17:02):
The plaintiffs I don't.
Speaker 5 (17:03):
Think we mentioned are not just the schools, but also
to parents of children at these schools and a representative
of the Amish community who says these are our beliefs,
they're sincerely held, and the parents saying to do this
to shutter the schools or to require to put us
to the choice of vaccinating or keeping our children home,
(17:24):
would work a serious burden on our religious beliefs and practices.
Speaker 3 (17:30):
So that's the po well, that's the as applied challenge.
Speaker 5 (17:33):
I think it could be construed as a facial challenge too,
because I think a lot of people, a lot of
religious exemptions could have the same character. Of course, there's
a lot specific to the Amish in here, but I
don't want it to be lost on the listeners that
this is an issue of great importance across the country,
(17:54):
not just for the Amish community.
Speaker 4 (17:58):
So weve I want to unpacked a little bit, and
starting with the last point you were making about as
applied and facial challenges, they've you know, this has certainly
been framed as an as applied challenge as opposed to
a facial challenge, but maybe you can talk about the
difference between as applied and facial challenges.
Speaker 5 (18:17):
Well, and I think there's it doesn't come out much
in the cert petition, and I don't know that it'll
make a major difference to the outcome of the case,
depending on what the court may be interested in doing
with this case if it were to grant Cercherai. But
what they were trying to do, I think is avoid
this second circuit precedent that had come out of Connecticut.
(18:41):
Connecticut at a similar repeal of its religious exemption law
and the petition the planets here were in a tough
spot because of that circuit precedent, and so they had
to argue that there was something different, and they do
have a plausible argument that they have a different kind
of injury because their resistance to modern technology, modern medicine
(19:05):
and all that is so unique to their faith, and
that was the impetus behind Yoda.
Speaker 3 (19:11):
At least the conventional reading of Yoder is.
Speaker 5 (19:14):
That there are certain burdens that for certain faiths are
so destructive that it would essentially undermine their ability to
practice their religion at all.
Speaker 3 (19:25):
And so that's the as applied.
Speaker 4 (19:27):
Challenge, right, and you're coming back to Smith. You talked
about how you know the dispute we have here. The
central dispute is whether or not, in the first instance,
on this free exercise claim, whether or not this falls
within this law falls within Smith, It's neutral, it's generally applicable,
(19:48):
and therefore subject to, as you mentioned, rational basis review.
Just so we know, you know the field we'rend you know,
tell us what is that rational basis standard? What standard
does the law need to meet to survive constitutional scrutiny?
Speaker 3 (20:02):
Under that standard? Well, it is the lowest form of scrutiny.
Speaker 5 (20:08):
Did the state have a reason related to the burden
that imposed on the right and courts it's not hard
for courts to find a rational basis. They can look
at the face of the statute, they can look at
legislative findings. They can even conceive of a rational basis
from the text or structure of the statute. It's going
(20:33):
to be very hard for a plaintiffs to win under
a rational basis standard.
Speaker 3 (20:37):
And so that's why Smith has come.
Speaker 5 (20:39):
Under such fire from as this group, this audience knows
for many years, it's very hard to win once the
court has decided that Smith is the proper test.
Speaker 4 (20:51):
Right, So fair to say that so long as the
court can say that the states chosen a means for
addressing a legitimate government interest rationally related to achieving the goal,
it's going to be able to survive that type of scrutiny.
Speaker 3 (21:04):
That's right.
Speaker 4 (21:06):
But if the law is it does not fall under Smith,
and we don't have this rational basis test, then we're
looking at strict scrutiny. Correct, that's right, And this is
a test that is sort of at the other end
of the spectrum. This is a very difficult test to me.
(21:27):
Can you talk about the strict scrutiny standard.
Speaker 5 (21:30):
Well, the state will have to show a compelling state interest,
and that the means it's employed to achieve that interests
are narrowly tailored, and states have not been in the
habit of doing that. In re exercise challenges under the
First Amendment since Smith, and so if Smith were if
(21:54):
you're in the world of a Smith exception, or if
Smith is reconsidered or repaired back in any way, then
we'll probably see a lot more successful religious liberty challenges
because it is hard to satisfy strict scrutiny. It's often
said that it's fatal in fact, and I think maybe
(22:14):
the best analogy for what that might look like is
right there in the First Amendment, in the free speech clause.
If the government is discriminating based on the content of
speech in general, they will have to overcome strict scrutiny.
And most laws will fail under strict scrutiny unless they
have a sufficient historical pedigree in some cases, so this
(22:35):
is the whole ballgame for a basic free exercise claim,
does Smith applier?
Speaker 3 (22:41):
Does it not?
Speaker 5 (22:42):
And the exceptions thus far, at least until the last
five years, have been construed very narrowly, and so we're
going to see in this case will that change And
we talk about that more when we get to the petition.
Speaker 4 (22:56):
Let's talk about that a little bit right now, just
because I think it matters to understanding what the lower
courts did in this case or what they didn't do.
Speaker 3 (23:07):
You know, we've talked about Smith.
Speaker 4 (23:08):
It's issued thirty five years ago, and since that time,
the courts issued decisions.
Speaker 3 (23:14):
As you just noted.
Speaker 4 (23:15):
Mainly, you know, in recent years they clarify Smith, some
have said narrowed Smith and the application of when strict
scrutiny is going to be applied. And I'd like to
talk about some of those cases with you quickly. So
we have some recent Supreme Court cases like Tendon versus
(23:37):
news versus Newsome, We've got Fulden versus City of Philadelphia
on free exercise, and then we have mob Mood v. Tailor,
which gets into the yoder claim. But can you talk
a little bit about how some of these cases have
clarified have clarified.
Speaker 5 (23:53):
Smith, right, So, I think backing up even further, for
many members of this audience, this may well be familiar.
But for me coming to this case, I kind of
assumed that overturning Smith was the big game that everyone
(24:14):
needed to be focused on. And there have been so
many law review articles how to replace Smith and what
should come next? Should it be strict scrutiny should be
a historical approach, and what we've seen in the last
five years is that the court has been able to
interpret and apply Smith in a way that seems a
lot more fair to the religious plaintiffs in these cases
(24:37):
by really clarifying two i'd say two categories of exception
and there may be more. One is that a law
is not generally applicable and neutral when it relies on
a system of individualized exemptions. And so when you have
the government making case by case determinations about whether the
(24:59):
law should apply to someone, that is not neutral, and
in that circumstance, religion needs to be treated as well
as the reasons that justify an exception from the law,
the secular reasons. And the second category gets at what
I just said a little bit more directly, which is
(25:20):
whatever the state's secular reason is for exempting some conduct
or activity from a general burden, religion has to be
treated at least as favorably.
Speaker 3 (25:31):
And so we saw this a.
Speaker 5 (25:33):
Lot in the church shut down cases during the virus times,
where you had governments who were keeping restrictions on capacity.
Speaker 3 (25:45):
And the types of activities that could be done.
Speaker 5 (25:47):
In church or worship services, and yet they were keeping
open or allowing to operate other businesses, secular businesses, whether
it was a hair salon or bowling alley or movie theater,
something like that. And the Supreme Court, starting in the
Brooklyn Diocese case, but then really in tandem versus Newsome,
(26:10):
said that if you're allowing secular exemptions, you have to
treat religion at least as favorably, what some have called
a most favored nation approach.
Speaker 3 (26:20):
And this is new.
Speaker 5 (26:22):
This is new because it was there in Smith, it
was there in Lakumi, but it hadn't really been refined
into a doctrine. And so we'll see in the coming years,
we'll see in this case if the Court wants to
continue to clarify those exceptions and.
Speaker 3 (26:43):
Makes Smith more livable, more workable.
Speaker 5 (26:46):
For really sympathetic and compelling plain IFFs like these ones.
Speaker 4 (26:51):
All Right, I think that's a good jumping off point
to talk about the specific arguments made in this case
by the plaintiffs. And I think these are arguments that
have were made in the District cord, they've been made
in the second Circuit, and we see them in the
sert petition. To begin with, I understand the planets can
sede that a rational basis review were applied under Smith,
they would not be successful in this suit, and they
(27:14):
believe it would be upheld. And they make essentially four
arguments for why this case falls outside of Smith and
therefore New York's law would need to pass strict scrutiny.
The first is that this law is not generally applicable.
The second is that it's not neutral. The third is
that this is the hybrid rights claim, is that this
(27:37):
case involves the free exercise clause in conjunction with other
constitutional protections, implicating Wisconsin v.
Speaker 3 (27:45):
Yoder or mack Mood type of analysis.
Speaker 4 (27:48):
And fourth, they also have argued that this New York
law is outside of Smith because unlike the law issue
in Smith, this law is amenable to religious exemptions and
it would not be, so to speak, borrowing from Smith
courting anarchy to allow for such exemptions. And I think
part of that point that's made in the briefing, including
(28:08):
your own, is when you have forty six states that
have such exemptions, that's a big indicator. I want to
walk through these with you, just these arguments, you know,
just for you to put a point on them, and then.
Speaker 3 (28:21):
We'll talk about the lower court rulings.
Speaker 4 (28:24):
Let's talk about those generally why the law is not
generally applicable according to the plaintiffs.
Speaker 5 (28:32):
Yeah, so that's where we focused a lot of our
briefing as a MEIKI, And those are kind of the
two categories I just spoke on the fact that there's
a medical exemption in New York is enough to hold
that it's not a generally applicable and neutral law because
(28:53):
the state is giving pride of place, giving special solicitude
to a second reason for objecting, while denying the same
treatment for a religious group, and so it's essentially a
discrimination principle.
Speaker 3 (29:10):
Now New York comes.
Speaker 5 (29:11):
Back and they say, well, it's different because we have
different reasons for allowing a health exemption. If there's some contraindication,
then there's some harm that could come to the child
from not taking or from taking the vaccine, and New
York cares about that. And I think petitioners have a
(29:32):
pretty good response to that, which is, well, plaintiffs have
hey religious view of harm.
Speaker 3 (29:36):
They have a different view of harm that New.
Speaker 5 (29:38):
York is discounting when it says that the health exemption
is a type of harm we care about, but the
arm to the soul of the child is one we
don't care about. That's when strict scrutiny should apply. And
I think under Tanton that's a pretty good argument, and
we've emphasized that in our briefs on the hybrid rights argument.
(30:05):
Hybrid rights is one of these areas that has been
somewhat of a mystery since Smith, because Smith has to
deal with Yoder, which we already talked about. And what
Smith says is well, Yoda's explainable by the fact that
it dealt with two rights at once, the free exercise
right and the parental right to dictate and form the
(30:26):
upbringing of one's child. And since then the Second Circuit
in a series of cases, had said this is basically
a dead end. There is no viable hybrid rights claim
in the Second Circuit. Now they said all of this
before the decision in Mamood last term, which really changes
(30:48):
changes the landscape for hybrid rights.
Speaker 3 (30:52):
Ma Mood doesn't use the diction.
Speaker 5 (30:55):
The precise terminology of hybrid rights as much. It's treating
the Yoder claim the religious right to inculcate values in
one's children, as an ordinary free exercise claim. You don't
have to prove that you need two different constitutional tests
to invoke it, and that's that's really important.
Speaker 3 (31:19):
And then the fourth category.
Speaker 5 (31:21):
You've you've spoken of as the whether the law is
amenable to exemptions or whether it's the kind of thing
that would cause anarchy. I could see that coming into play,
but we don't have quite as much doctrine on that one.
Speaker 4 (31:35):
All right, let's uh, let's talk about the decisions from
the lower courts and starting and starting with the district court.
I think the District Court, you know, was faced for
the request for preliminary injunction from the plaintiffs and a
motion to dismiss under rule twelve B six from New York,
and it wound up granting the motion to dismiss and
(31:55):
therefore denying the p I request as moot in this case.
And it looks, you know, and the disre Court's decision
was very much driven by the court feeling bound by
the Second Circuit decision you mentioned earlier, the We the
Patriots case that I think concerned you know, another you know,
(32:17):
vaccine case. And so is that your read of the
disrec Court opinion that basically We the Patriots resolves this
issue is binding Second Circuit precedent, and that's why this
claim fails.
Speaker 5 (32:31):
Yeah, that's that's right, and I think the court comes
up with some new rationality, the idea that well, maybe
religious exemptions in some way are more dangerous to the
state's interest than secular exemptions, because you could have lots
of people together congregating who are not vaccinated. And I
(32:56):
just think petitioners have a pretty good response to it
that if you look at the individual rul's religious objection,
that the damage the harm to the state's interest is
equal whether the student is not vaccinated for religious reasons
or medical reasons. If the state's interest is promoting the
(33:16):
most amount of vaccination, then these two types of objections
undermine the state interest in the same way. So with
that wrinkle, I don't think there was much new for
the court to say. And so it goes up to
the Second Circuit and the Amish make the same our
(33:38):
arguments that we've discussed, I think, in of course a
greater detail than they couldn't their complaint, and there's oral argument,
and the Court was pretty skeptical or oral argument, I
think because we've had Smith for so long, so you
have thirty years of looking at a law like this
(33:58):
and saying, well, it's pretty general.
Speaker 3 (34:01):
The State's going to win.
Speaker 5 (34:03):
And of course that's what the Second Circuit ends up saying.
Speaker 4 (34:10):
I'm sorry, I was going to say, let's talk about
that that Second Circuit opinion.
Speaker 3 (34:13):
It's interesting to hear how oral argument was.
Speaker 4 (34:16):
But you you know, the second Circuit, as as you know,
is addressing each of the each of the reasons the
plaintiffs have offered for why this false. Outside Smith and
I think it's kind of interesting to look at the
Second circuits analysis of this. It begins with the neutrality
(34:37):
and general applicability uh issues, and the Second Circuit concludes
that the law is neutral on its face and says
it doesn't quote target or affirmatively prohibit religious practices close quote.
It also says, they quote the law simply applies New
York's school immunization requirements to all school children who do
(35:01):
not qualify for the laws medical exemption, and it uh,
you know, it then goes on to say that the
act of repealing the religious exemption did not, in it
of itself, transmute the otherwise neutral law into one that
targets religious beliefs. They're they're they're quoting we the Patriots,
(35:22):
so you know, they're they're for those reasons. They're saying
they don't see any anti religious bias. So what are
your thoughts on those rationales offered by the court.
Speaker 5 (35:35):
Well, I think, unfortunately, because of the circuit precedent, it was.
Speaker 3 (35:40):
Unsurprising that that it came out this way.
Speaker 5 (35:44):
The Connecticut case was similar, there are some differences between
the laws there. I think that New York's regime is
a better case for the application of Fulton and avoiding
Smith and rational basis because in New York you have
this discretionary regime where the physician is any physician in
(36:07):
the state can create a medical exemption, can certify that
the child may have a health objection to the vaccine,
and then the school can reject that or ask for
more information, at least suggesting that there's some additional layer
of discretion by the school administrators. And so I think
(36:28):
that really cuts against New York's position that this is
an objective, mandatory category that's applied with real predictability in
the state and takes it out of the Fulton category.
Speaker 3 (36:44):
And we see this on the ground in the complaint.
Speaker 5 (36:47):
There are statistics from schools that have I think as
many as fifty percent of the children are not vaccinated
for medical reasons, and if the exceptions being applied so arbitrarily,
it's us that there is a measure of discretion that
either from physicians or schools or the state, which should
(37:08):
allow religion to be treated on the same terms and
should require the state to satisfy strict scrutiny.
Speaker 3 (37:16):
Right.
Speaker 4 (37:16):
And it seems also that to the point you made
earlier that you know, when it comes to treatment of
comparable secular activity is really it does turn on how
you define that word comparable, how you apply that word comparable.
And I think what you discussed earlier, and I think
what we've seen some of the recent Supreme Court case
(37:36):
law may not be on the same page as what
the Second Circuit is saying in terms of what comparable
means in this context.
Speaker 3 (37:42):
Could you could you revisit revisit that a little bit.
Speaker 5 (37:46):
Well, I think there's some intuitive pull to what the
Second Circuit is saying when they when they point out
that you could have clusters of communities that have religious
objections and so the risk of infectious disease is higher
when you have a lot of people who are not vaccinated.
(38:08):
I mean that makes sense at first, blush, but the
implication of that for free exercise rights is really worrying.
Just because there are more people near me who practice
my religion the same way our religious objection should be
should be weaker, or that we should be subject to
(38:31):
greater burdens from the state's public health regime. That's just
not how the Supreme Court treats religious rights. It's not
how any of the COVID cases came out. The Court
wasn't counting the number of seats in the church. Now
some courts did do that, but the Supreme Court never
endorsed such a method that said, well, I it's a
(38:53):
really big church, then you don't have religious rights anymore
in a pandemic. I think that has been carted by
Tandon versus Newsome. And if it hasn't, then the Supreme
Court needs the opportunity to take the opportunity to say
that explicitly.
Speaker 4 (39:11):
Let's before we move to the CIRT petition, I want
to talk briefly about the second circuits, you know, reasoning
on the hybrid rites or the Yoder claim. And in
this case, they did reject the plaintiff's comparison to Yoder,
and they specifically were pointing to the limits of Yoder's holding,
I think sort of looking at it as being limited
to its facts, and in so doing they relied on
(39:33):
the Fourth Circuit's opinion in Modern Mood, which was which
was later overturned by the Supreme Court. Maybe can you
talk a little bit about that reasoning how significant or
not significant it may have been in this decision.
Speaker 5 (39:47):
Well, I think the Yoder case, if it's limited to
its facts, then petitioners should still win because they are
the same group of people alleging the same kind of
burden on the same religion. And so at a minute, mom,
they should get a vacator of the Second Circuit decision
for reconsideration in light of Ma Mood, and they've asked.
Speaker 3 (40:08):
For that at the bottom of their curpetition.
Speaker 5 (40:11):
It wouldn't be I think the most satisfying outcome for
critics of Smith and for practitioners in the religious liberty
space if it were such a narrow result in a
narrow wind for these plaintiffs. But what Ma Mood did,
I think was bring Yoda to the fore to back
(40:33):
into the fold as the seminal free exercise case, that
it should be that it's not something.
Speaker 3 (40:43):
For a particular group of people at a particular time.
Speaker 5 (40:46):
There is a fundamental, free exercise right to direct the
religious upbringing of one's children, and when the States substantially.
Speaker 3 (40:55):
Interferes with that, then we're outside of Smith.
Speaker 5 (40:58):
And the court in Ma Mood also resurrected or brought
back to mind to the Barnet case, which many people
I think learn in First Amendment class or a thought
of as one of these landmarks free speech cases. I
mean that First Amendment and it's also a religion case
(41:20):
that the Jehovah's witnesses in that case were asked to
say the pledge of allegiance and to salute the flag,
and they said that was a direct coercion on them.
It was a violation of their religious beliefs to affirm
a pledge to the flag. And so we have now
another line of doctrine to get away from Smith.
Speaker 3 (41:43):
And the court was emphatic on that.
Speaker 5 (41:46):
And so Ma Mood of course had these really colorful
facts about what was being taught in the public schools
and the parental objections, but its reasoning was not at
all limited to those facts.
Speaker 4 (41:58):
Yeah, but you know, you know, speaking of these cases,
let's talk briefly about the cert petition and the questions
that it raises that it's offering to the court. The
certain petition presents two questions. I mean, the first is
whether a law that categorically disallows religious exemptions but permits
secular exemptions and other comparable secular activity violates the free
(42:21):
exercise clause as applies as applied to the Amish parents
and schools in this case. The second question is whether
Smith should be reconsidered. Let's let's just talk about those briefly.
As to the first question, the petitioners have, you know,
identify a split. That's also that they are They are
(42:43):
really citing and quoting directly from Justice Thomas dissent from
a denial of certain doctor a versus Hochel. That dissent
was joined by Justice Leto and Justice Gorsich. And it's
and that case talks about an acknowledged split. That's why
spread and entrenched and worth addressing. And so I'd just
(43:06):
like to get your thought whether you know this, you
know the way that this case is coming up, and
given you know these words from uh, you know, from
the sitting justices, uh, you know, thoughts about how that
that plays out in the potentiality for Circia granted.
Speaker 5 (43:23):
Right, so they rely on this doctor a uh descent
from denial by Justice Thomas and joined by Justice as
A Lado and Gorsic And and so if you have three,
the question is is there a fourth to address this
circuit split? And the basic question of the split is
does a rational basis apply to a law that exempts
(43:47):
exempts religious secular conduct but not religious conduct?
Speaker 3 (43:52):
And Fulton seemed.
Speaker 5 (43:53):
To answer that, But there are still more wrinkles, and so,
for example, can New York rely on the fact that
its secular exemption gives a benefit to the students by
protecting them from whatever contraindication they might have, or is
the analysis to be focused just on the degree to
(44:15):
which the exemption undermines the stated interest in immunization generally?
And this goes much further and deeper than just vaccines.
Of course, there are cases around the circuits dealing with
vaccines in particular. Maybe the doctor A case was not
granted because it was tied to COVID and.
Speaker 3 (44:38):
All of that controversy.
Speaker 5 (44:41):
Now with some distance, now we're talking about school vaccine
regimes that have been around forever and will be around
for a long time, and so maybe there's some more
enduring interest in the question apart from the pandemic.
Speaker 4 (44:58):
And let's visit briefly before we get to Q and
A about the second question. The second question prison just
tees up straightforward whether Smith should be reconsidered. Now, you know,
it's postured in the sense of, obviously the court need
not reach this if it goes with the petitioners on
the result they think should come from the first question.
(45:18):
But they say, essentially, if under the Smith regime this
is just going to fit neatly inter rational basis review,
then maybe Smith should be reconsidered. My question to you
is just what do you think the chances are that
that may happen. I mean, we have a number of
amaxust briefs already, including from some scholars and folks who are.
Speaker 3 (45:37):
Saying that that's what needs to happen.
Speaker 4 (45:39):
What do you think the chances are this case could
be the one that that happens.
Speaker 3 (45:47):
I don't know about odds.
Speaker 5 (45:48):
I think I think that the Court obviously has an
appetite for revisiting Smith, and it's been searching for that replacement.
And so in Fulton you have a concurrence from Justice
Barrett expressing concern that just because the law is really
(46:10):
general doesn't mean that it doesn't work a hard burden
on religious practitioners. And there's probably some good support in
the history. I know that Professor Barclay filed and amachus
a brief on this for a higher test, and maybe
it's not identical to strict scrutiny, maybe it should be
(46:31):
more historically grounded, but at least the concurrences in Fulton
suggests the court is interested.
Speaker 3 (46:42):
Is this the case to do it? Well?
Speaker 5 (46:45):
I think it depends a little bit on whether you
think this the outcome here should be dictated by Bolton
and Tandeon. If the Court will expand those exceptions, then
maybe it need not reconsider Smith and should leave that
for another day. Now, we Alabama didn't take a strong
(47:07):
position on what should replace Smith.
Speaker 3 (47:10):
It seems to me that.
Speaker 5 (47:13):
That Smith has serious problems, and I think those were
illustrated in the pandemic, where even if you could devise
a generally applicable burden on people, that the government shouldn't
be closing church without satisfying some heightened level of scrutiny.
And so I think it's pretty obvious that Smith is unworkable.
(47:36):
For certain fact patterns, and we're going to find out
if this is one of them.
Speaker 4 (47:40):
All right, thanks, Bob, I'm going to go to some
Q and A. Right now, we have an anonymous attendee
who's asking for your thoughts about whether and how courts
should weigh a broader public health risk when you have
religious community that's not completely isolated, and maybe in a
rural relative insular community, but not completely isolated. And if
(48:04):
it says if the Amish, they may live separately, but
they're not completely isolated. So I take that to be
you know, if you're looking at the broader public health concerns,
you how to course weigh that?
Speaker 3 (48:18):
Well, the problem.
Speaker 5 (48:19):
Is in the status quot they don't have to weigh
it at all because of the application of rational basis.
All New York has to do is say, we have
a health interest in promoting vaccination, and so the particular
facts of these plaintiffs and whether forcing them to vaccinate
or to shutter their schools can achieve it is necessary
(48:41):
to achieve that interest is not before the court.
Speaker 3 (48:44):
They just can avoid the question altogether.
Speaker 5 (48:47):
Now, Florida filed a brief in this case in the
Supreme Court, which I think goes into this in great detail.
And what Florida says is if you apply some heightened scrutiny,
then courts will be required to examine exactly factors like
what will it take to produce herd immunity in these.
Speaker 3 (49:09):
Parts of this state?
Speaker 5 (49:10):
What level of vaccination is that different for different types
of diseases? And I think the evidence is yes that
a blanket rule for all types of vaccines and immunizations
is not one that's narrowly tailored to produce the herd
immunity needed for the state's interest.
Speaker 3 (49:30):
And thanks Bob.
Speaker 4 (49:31):
I have another question from an anonymous attendee that's asking
whether the Supreme Court may be concerned that any ruling
in favor of petitioners could lead to more cases involving
non traditional religions and sincerely held religious beliefs.
Speaker 5 (49:47):
Sorry, the question is will will the Supreme Court take
more cases involving non traditional religions?
Speaker 4 (49:57):
Yeah, the question is whether they would be concerned that
are ruling in favor of petitioners would lead to many
more cases that involve non traditional religions and sincerely held beliefs.
Speaker 3 (50:08):
I don't think so.
Speaker 5 (50:09):
I think the courts have ways of testing for sincerely
held religious beliefs.
Speaker 3 (50:19):
It's not an area that's.
Speaker 5 (50:21):
Litigated, and there may be eventually some pressure. I mean,
we see unfortunately kind of what I think is an
abuse of the free exercise clause where plaintiffs try to
achieve political objectives under the banner of religion, and we've
seen it as a kind of tool of political activism
(50:43):
from groups that don't seem to be sincere and I
have confidence that the courts will be able to sort
that out. Whether it will take the Supreme Court eventually
developing doctrine in that area, I don't know, but I
don't think it's the type of thing that the Supreme
that is on the forefront of the Court's minds. They
have a real problem with the doctrine under Smith now
(51:06):
that needs to be resolved to protect these kinds of plaintiffs,
and then I think can worry about false positives later
down the line.
Speaker 3 (51:17):
All right, thanks, Bob.
Speaker 4 (51:18):
I think we've we're getting close to our full hour here,
and I've greatly appreciated having this discussion with you. It's
been it's been a fascinating discussion. I know we'll be
watching what happens with this case and watching with interest
to see if it's the case that the court will accept.
(51:41):
But I greatly appreciate your time. It's been a wonderful discussion.
Speaker 1 (51:47):
Thank you, Judge, Thank you for listening to this episode
of fed sock Forums, a podcast of the Federal Society's
practice groups. For more information about the Federal Society, the
practice groups, and to become a Federal Society Man, please
visit our website at fedsoc dot org.
Speaker 3 (52:05):
Mm hmm
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