Second Circuit Upholds New York's Religious Exemption Ban

The challenge was brought by three Amish schools and parents.

The U.S. Circuit Court of Appeals for the Second Circuit, New York.

In another blow to religious liberty in America, the U.S. Court of Appeals for the Second Circuit on Monday ruled unanimously that New York’s decision to fine three Amish schools that were still allowing religious exemptions to vaccinations was not a violation of the schools’ First Amendment right to the free exercise of religion. The three-judge panel comprised of U.S. Circuit Judges Jose Cabranes (a Bill Clinton appointee), Eunice Lee (a Joe Biden appointee), and Richard Wesley (a George W. Bush appointee), also ruled that New York’s religious exemption repeal was a neutral law of general applicability under the test created by the U.S. Supreme Court’s landmark decision in Employment Division v. Smith, 494 U.S. 872 (1990), and further concluded that statements by New York lawmakers in support of the repeal was not evidence of hostility to any particular religion, as in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).

The 28-page decision used the same reasoning the Second Circuit applied to rule against us in We The Patriots USA, Inc. v. Conn. Off. of Early Childhood Dev., our original federal lawsuit challenging Connecticut’s repeal of its religious exemption, which sadly the U.S. Supreme Court chose not to review. I have a lot to say about this decision, only some of which I’ll say here. But one thing I can’t say is that the Second Circuit isn’t consistent.

It is still my position that the aforementioned Smith test needs to be overruled, or at least redefined so as not to apply to such egregious state violations of religious liberty. What New York - and Connecticut, and California, and Maine - did in repealing the religious exemption to mandatory school vaccinations is, in my opinion, very clearly a violation of the Free Exercise Clause of the First Amendment. How is a law “neutral” and “generally applicable” (i.e., something that applies to everyone equally) when it only allows children to attend school if they have a particular set of religious beliefs (or, no religious beliefs at all)? Put another way, children of families whose religious beliefs do not oppose any vaccinations can receive an education, while children of families whose religious beliefs oppose vaccinations cannot receive an education. How exactly is that not discrimination? How exactly is that not an attack on those families’ free exercise of religion? How exactly is that not a denial of “the equal protection of the laws” prohibited by the Fourteenth Amendment? I have so many questions.

Another one is why isn’t New York’s decision to ban these children from school a violation of the First Amendment’s Establishment Clause? I maintain that it is, and - without revealing too much of our legal strategy here - we intend to argue this point in the new lawsuits we plan to file in states that have eliminated the religious exemption. Many (if not most) of these families and schools object to vaccinations due to the fact that aborted fetal cell lines were used in the testing and production of the vaccines. The state, by forcing the students to receive these injections if they want to receive an education, is in my view very clearly forcing them to participate in (or, at the very least, “benefit” from) the abortions that were used to create the vaccines. It is a commonly held Christian belief that if you remain silent in the face of evil - let alone seek to derive a benefit from it - you are complicit in that evil. And since Christianity (and most other religions) deems abortion to be an intrinsically evil act, it follows that the state is forcing schoolchildren and their families to be complicit with evil.

Now, of course, it is not the policy of states like New York and California that abortion is an intrinsic evil. Much to the contrary, those states have passed laws protecting what they have deemed a “right” to an abortion, even late-term abortions. But that’s just my point. These states have advanced a system of beliefs that stands in direct opposition to Christian beliefs, and that is an argument that I believe the Amish schools could have made here. I’m not criticizing them for not making it (we didn’t make it in our first federal lawsuit either), but what I’m saying is it’s an argument I think we should all be making going forward.

This is sad news, to be sure. But I want to make one thing perfectly clear: we aren’t giving up, and we aren’t backing down. We The Patriots USA will continue to file as many lawsuits as our funding allows until the religious liberty of ALL Americans is protected, not just those who happen to live outside of New York, Connecticut, Maine, and California. To receive the latest updates about our legal efforts, please subscribe to our email list here. You can also support our legal work by making a tax-deductible contribution to our nonprofit organization here.