Pressure for Trump to Restore Religious Exemptions for Children Reaches WH Press Briefing

But what if he does it, and it's our worst nightmare?

There’s a movement afoot. Actually, it’s one that’s been afoot for a decade now, ever since California students lost their right to opt out of mandatory school vaccinations on the basis of their sincerely-held beliefs. That movement, of course, is the push to restore religious exemptions to vaccinations (in California termed “personal belief exemptions”) for K-12 students in the states where they have been lost. In addition to California, that list of states currently includes New York, Connecticut, and Maine. But more recently, individuals and organizations across the country have been urging President Trump, Attorney General Pam Bondi, and HHS Secretary Robert F. Kennedy, Jr. to take action to force these states to once again allow students to opt out of required school vaccinations that conflict with their religious beliefs. It’s a fair request, especially given the Trump administration’s avowed commitment to combatting religious discrimination. In February, the President signed an Executive Order (EO) with the purpose of “Eradicating Anti-Christian Bias”, and just last month, he signed another establishing a Religious Liberty Commission to investigate threats to religious liberty in the United States. So it would have been kind of irresponsible for those of us fighting to restore religious exemptions for schoolchildren not to bring this to the attention of the administration.

Of course, they were certainly aware of this issue well before Amanda Head asked White House Press Secretary Karoline Leavitt about it during yesterday’s press conference. Leavitt’s response was brief but pointed: “Generally speaking, know the President supports religious exemptions for families when it comes to vaccinations. As for the instances in those specific states, I’ll have the administration and the White House look into it and see what Executive action, if any, we can take on that front.”

This question - and Leavitt’s answer - were met with widespread celebration last night from the health freedom community that has been fighting for the right to religious freedom from school vaccine mandates for so many years. I get it. I too was really excited to see this topic finally make its way to the White House. After all, I was one of the parents fighting on the front lines against the religious exemption repeal in my home state of Connecticut, and I showed up for rallies in Albany and Trenton to support families there as well (the New Jersey efforts to stop the religious exemption repeal were ultimately successful, thanks to thousands of brave parents who would not be silenced). But there was something frightening in Leavitt’s response yesterday, too, namely two words: “Executive Action.”

If President Trump’s play here - as many expect - will be to withhold funding from the four states that do not currently allow families to opt out of school vaccinations on the basis of their religious beliefs, the story will play out like it has with all of his other EOs to withhold funding for one reason or another. Those four states will undoubtedly immediately file a legal challenge to the EO, and a district court judge in one of those states will likely grant an injunction preventing the EO from taking effect. The Trump administration will appeal, and that appeal is likely to be ultimately heard by the U.S. Supreme Court. The U.S. Supreme Court will have before it not the issue of whether the First Amendment requires these states to honor religious exemptions to vaccinations, but whether the Executive Branch has the authority to withhold funding from states that do not comply with an order regarding school vaccinations. Put even more simply, can federal power usurp state power in the realm of vaccination mandates? And here’s where the scary part comes in: the Supreme Court rules in favor of the Trump administration.

If you think yesterday’s celebration was loud, you ain’t seen nothing yet. These families who’ve had their rights denied all these years will literally be dancing in the streets. Schools in California, New York, Connecticut, and Maine will be forced to allow all students to attend school, regardless of vaccination status, if they have a religious or medical exemption to the required school vaccinations. But in reality, such a decision will be no cause for celebration. In truth, it should be met with widespread consternation (to put it mildly) from families in all 50 states. That’s because such a decision would establish Supreme Court precedent that the federal government can punish states that don’t comply with its orders regarding vaccinations. When the next President takes power who does not respect religious liberty, he or she could easily issue an EO that pulls federal funding from any state that allows religious exemptions to vaccinations. And with states desperately relying on federal funding for education, don’t expect many - if any - of the states to refuse to comply with such an order. Even if they did, their legal challenges would likely be met with swift dismissal, based on the Supreme Court’s decision in the Trump EO case. After all, as I’ve said before, Supreme Court precedent doesn’t get overturned often, and even when it does, it usually takes decades or even a century or more.

So the unintended consequence of a “win” for President Trump at the Supreme Court with regard to an EO forcing states to allow religious exemptions, is that we could eventually be left with a country that does not allow religious exemptions anywhere. Right now we have 46 “safe haven” states where families can opt out of religious exemptions. With this decision, we would be left with none. Let that sink in for a moment.

And there’s another unintended consequence, too. Presently there is litigation ongoing in multiple states that could result in the Supreme Court deciding the issue of religious exemptions as a violation of the First Amendment. Such a ruling would have lasting effect, and would create precedent that would prevent a future administration from issuing a nationwide vaccination mandate without exemptions. The We The Patriots USA lawsuit against the Ventura County Unified School District and California state officials is just one example. The lawsuit initiated by Attorney Aaron Siri on behalf of Amish families in New York is another. That lawsuit is currently pending an application for Supreme Court review (known as a petition for certiorari, or “cert petition”). But if the Supreme Court ruled tomorrow that the President had the power to withhold funding from states that do not allow exemptions, prompting those four states to change their laws so that exemptions are now permitted, the aforementioned lawsuits would be dismissed as moot. That’s what usually happens when the plaintiffs in a lawsuit are no longer suffering the harm that gave rise to the lawsuit. After all, if the children are now allowed back in school, why would a court waste its time issuing a decision ordering the children to be allowed back in school? And then, when a future President does take action to deny religious freedom from vaccinations in all 50 states, the barrage of lawsuits would have to start all over again, from scratch.

So instead of getting a firm ruling from the nation’s highest court which says that it is a violation of the First Amendment of the U.S. Constitution for schools anywhere in the country to deny an education to a student on the basis of his religious objection to vaccinations, we’d have a decision that says that the Executive Branch has the authority to issue orders regarding how states enforce their vaccination mandates, and punish them if they do not comply. And if President Trump has the power to withhold funding from states that refuse to allow religious exemptions to school vaccinations, I don’t see how anyone could argue that President Newsom doesn’t have the power to withhold funding from states that allow religious exemptions to school vaccinations.

It’s a slippery slope, and one that I think most people don’t see on the horizon. But I beg you to look at the big picture here. We are going for lasting wins that protect the maximum number of Americans - hopefully, all Americans. A win that temporarily gives relief to residents of four states, while very likely harming those in all 50 states in four or eight years, starts to look much more like a loss when you stop to think about it.

So what is my answer? Am I advocating that we not ask the Trump administration to do anything to address this, and leave the matter solely in the hands of private attorneys and organizations like ours? Certainly not. What I’m saying is that we should be making a different ask. Rather than advocating for the President to issue an EO that withholds funding from states that do not allow religious exemptions to school vaccinations, AG Pam Bondi and her Justice Department could bring a civil rights challenge against these states, one that places the First Amendment violation squarely before the Court, and asks the Court to overrule its 35 year-old ruling in Employment Division v. Smith, which courts have used to issue decisions saying that school vaccination mandates which allow secular (medical) exemptions but not religious ones are somehow “neutral laws of general applicability” that cannot be subject to the strict scrutiny analysis which would undoubtedly render them unconstitutional.

Guiding The Impact, a coalition from New York, has prepared a letter to the Trump Administration’s Religious Liberty Commission, and has gathered signatures from many influential leaders across the country (it is viewable publicly on Facebook here). In the interest of full disclosure, Guiding The Impact did offer We The Patriots USA the opportunity to sign the letter as well. The reason we have thus far declined, however, is that the letter includes among its proposals for the Commission the issuance of “an Executive Order and legislation to withhold federal funds from educational institutions denying religious exemptions to vaccination requirements, ensuring access to education.” To be fair, the letter also proposes legal action by the Attorney General against these states for First Amendment violations, which we fully support. But it is our position that the issuance of an Executive Order has the serious potential to do much more harm than good, as I’ve explained herein. To be clear, we support Guiding The Impact’s efforts in general, and we do hope they are successful in getting the Justice Department to bring legal action against these states on First Amendment grounds.

Please share your thoughts in the comment section below. I’d love to know what you think about all of this.