The Biggest Religious Exemption Case You Probably Don’t Know About (But Definitely Should)
Welcome to our first Substack!
Ever since California repealed its personal belief exemption to mandatory school vaccinations in 2015, lawyers in the medical and religious freedom movements have been exploring every possible avenue in the courts to get it restored. The people of California, meanwhile, have continued to suffer after being faced with a choice to either vaccinate their children in violation of their sincerely-held beliefs, homeschool, or move out of state. Similar turmoil ensued in New York after the legislature there repealed the state’s longstanding religious exemption in 2019, and in Maine after that state’s religious exemption was officially repealed in 2021 (per an act signed into law by Governor Janet Mills in 2019). On April 28, 2021, Connecticut followed suit when Governor Ned Lamont signed Public Act 21-6 into law, which repealed the religious exemption to mandatory school vaccinations which had been available to Connecticut families since vaccinations were first required for school attendance in 1959. It is important to note that in all of that time, there was never once an instance of an outbreak of any “vaccine-preventable illness” in a public school resulting from a child using a religious exemption. And so it continued until 2021, when Connecticut House Speaker Matt Ritter (D-Hartford) and his cohorts convinced their colleagues that families with religious exemptions posed a serious threat to the health and welfare of the citizenry of Connecticut, despite the fact that Connecticut was among the states with the nation’s highest rates of immunization for measles, the dreaded illness these legislators alleged was the greatest threat to the state posed by the continued use of the religious exemption (COVID-19 could not be the villain this time, since the covid shot was not yet available to the public at the time of the bill’s passage, and therefore had obviously not yet been added to the CDC’s recommended schedule of immunizations for children).
Even more absurd than their arguments in support of repealing the religious exemption, however, was the manner in which they chose to do it. In an apparent gesture of good will to the families of Connecticut, the legislature left in place the religious exemption for some 8,500 students who were enrolled in a Connecticut school with a religious exemption on file before the bill was signed into law. After much confusion and scrambling between parents, school boards, and state agencies, the Connecticut Department of Education later released guidance “clarifying” that this means that any student with a religious exemption on file as of “midnight on April 27, 2021” could continue using the exemption. Since the guidance (and the law) clearly state that any religious exemption on file prior to the effective date of the law – April 28, 2021 – was valid, most have interpreted this to mean that any student enrolled in a Connecticut school with a religious exemption on file by 11:59 p.m. on April 27, 2021 could keep their exemption throughout the duration of their educations.
However, the tumult did not end there. What about high school students who had a valid religious exemption on file prior to that date but then graduated and wished to enroll in a Connecticut college or university? Would the exemption follow them, or expire after their high school graduation? While no court has issued a definitive answer to this question, the law does not state that religious exemptions transfer from high school to college. As a result, some colleges have allowed students to matriculate with their religious exemptions in tow, while others have denied access unless students receive all vaccinations required for enrollment (including, in many cases, the covid shots). The law also did not address the situation of a child with an exemption who disenrolls from school for a period of time (to homeschool, for instance) and then attempts to reenroll in a Connecticut school. Some schools have continued to recognize the religious exemption for such students, while others have refused.
What was clear is that the so-called “legacy provision” that preserved existing religious exemptions did not apply to children in preschools and daycares. Any child in preschool when the law was passed, therefore, was unable to enroll in kindergarten. That is the precisely the situation that the children of our three brave parent-plaintiffs found themselves in on that fateful day in April 2021. Miriam Hidalgo (a Roman Catholic), Constantina Lora (a Greek Orthodox), and Asma Elidrissi (a Muslim) all had young children who were preparing to enroll in kindergarten but had the school doors slammed in their faces after this bill was signed into law, since they all held sincere (albeit, distinct) religious beliefs opposing certain vaccinations. And so they joined We The Patriots USA in a federal lawsuit against the state and the school boards that denied their children access to a public education.
This law has ripped Connecticut families apart, and the separation is quite literal. Many families suddenly found themselves in the horrible position of sending their older children to school, while telling their younger children that they could not follow their older siblings. This also meant that the older children could participate in the school’s extra-curricular activities like sports, while the younger children could not. In a state that proudly hailed itself as a leader in the desegregation of the civil rights movement of mid-20th century, this sure looked a lot like segregation. Without a doubt, the racial segregation that forced black students to attend different schools than white students should only be described with words like despicable and horrific. But what Connecticut did in April 2021 should also be met with disdain. No, it did not establish separate schools for those with religious beliefs opposed to vaccinations. Instead Connecticut simply decided that children with those particular religious beliefs were not entitled to an education at all. To put it another way, the schools of Connecticut were now open only to those children whose families held a certain brand of religious beliefs – i.e., those that embraced (or at least allowed) vaccinations. Anyone who held contrary religious beliefs, and was not willing to violate them, would be denied an education.
What makes this even worse is that education is a fundamental right under Article Eighth of the Connecticut Constitution. (Of course, religious freedom is also a fundamental right under both the Connecticut and U.S. Constitutions, but I digress.) When the government infringes on a fundamental right, strict scrutiny analysis is usually applied by the courts to determine whether the infringement was permissible. This means that the government must show that there was a compelling interest behind its action, and that it was accomplished by the least restrictive means. Applying strict scrutiny to Connecticut’s repeal of the religious exemption, the state loses easily. It absolutely cannot prove that there was anything – such a public health crisis – that constituted a compelling interest to infringe on religious freedom, and even if it could, the state did not use the least restrictive means to achieve it. For instance, data indicates that at the time of the law’s passage, the percentage of “noncompliant” students (meaning that they simply did not turn in the paperwork to show proof of vaccination) in a given school was often much higher than the percentage of students using the religious exemption. Yet the new law did nothing to address this issue, and as a result the state did nothing to even ensure that its reported vaccination rates were accurate, instead rushing to immediately strip certain families of their right to an education on the basis of their religious beliefs.
Sounds like an easy win, right? Easy, except for one not-so-minor fly in the ointment: a case called Employment Division v. Smith, 494 U.S. 872 (1990). While most people presumed that we had to slay the dragon known as Jacobson v. Massachusetts, 197 U.S. 11 (1905), to win back religious exemptions, the real hurdle is Smith. Jacobson, in fact, didn’t address religious exemptions to vaccination at all. The case, decided by the U.S. Supreme Court in 1905, instead held that the state could lawfully mandate vaccinations through the exercise of its police power. The plaintiff, Henning Jacobson, did not even assert a religious exemption to the City of Cambridge’s smallpox vaccination mandate. Instead, Jacobson argued that the mandate deprived him of liberty under the Fourteenth Amendment. In 1922, the Court reaffirmed Jacobson in Zucht v. King, 260 U.S. 174 (1922), ruling that the San Antonio, Texas school district could refuse an education to a student who was not vaccinated for smallpox. But again, this case was not decided on religious liberty grounds. The plaintiff, Rosalyn Zucht, did not assert a religious exemption, but instead asserted that the school’s vaccination mandate was unconstitutional because there was not a public health emergency, thus depriving her of liberty without due process of law in violation of the Fourteenth Amendment. So again, this case was decided solely on Fourteenth Amendment grounds, and without a discussion of religious liberty.
Back to Smith. Smith involved neither vaccinations nor education. The plaintiffs in Smith were fired from their jobs because they used peyote, a hallucinogen, as part of a religious ceremony at their Native American church. When the State of Oregon denied them unemployment benefits after finding that their peyote use constituted work-related “misconduct” under state law, they sued and the case eventually reached the U.S. Supreme Court. The Court ruled in favor of the state, finding that a law that is neutral and generally applicable may stand, even if it has the effect of burdening religious liberty. That is, since Oregon’s law did not specifically target the religious use of peyote, but instead banned all peyote use (for whatever reason), it was a neutral law that applied to the population in general, rather than only to Native Americans who use peyote in religious ceremonies.
Smith has carried with it extensive controversy in the three-plus decades since it was decided, most recently in Fulton v. City of Philadelphia, a case which was decided unanimously in favor of the plaintiff foster-care agency on narrow grounds outside of Smith, but led three Justices (Alito, Thomas, and Gorsuch), to express concerns that the majority decision did not do enough to protect religious liberty, and to hint (or explicitly call) for Smith to be overturned. Regardless, in ruling for the Catholic foster-care agency, the Court unequivocally stated that a law is not generally applicable “if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” And that is another chink in the proverbial armor of Connecticut Public Act 21-6: it eliminated religious exemptions, but left secular (medical) exemptions in place. The state never produced evidence to demonstrate that any kind of exemption undermines its stated public health interest, let alone that religious exemptions somehow undermine their interest in a way that medical exemptions do not.
Primarily for that reason, Judge Joseph Bianco of the Second Circuit dissented from the majority decision, which found that Connecticut’s religious exemption repeal was a neutral law of general applicability under Smith, and therefore not subject to strict scrutiny analysis. On December 11, 2023, we filed a petition of certiorari (commonly known simply as a “cert petition”) to the U.S. Supreme Court, asking them to review the Second Circuit’s decision. We knew the odds were long – out of the 7,000 - 8,000 cert petitions filed each year, the Court grants review for approximately 80 of them. Most cases are placed on what is commonly referred to as the “dead list”, meaning they aren’t even put up for discussion or a vote at the Justices’ conferences. The Connecticut Attorney General’s Office and counsel for the boards of education waived their right to respond to our petition, a strategy that is often utilized to signal to the Court that the petition is frivolous or, at the very least, not worthy of review. But on February 5, 2024, something interesting happened. The Supreme Court issued a request for a response to the state and the other defendants, providing a deadline of March 6, 2024 for them to submit one. While this is not unheard of, it is certainly not very common, and it indicates that at least one Justice is interested in how the state will reply to the issues posed by our cert petition. This may also increase the likelihood that our petition will be placed on the “discuss list” and put to a vote of the Justices.
This recent development does not in any way guarantee that our cert petition will be granted, but it puts us one step closer to something monumental in the landscape of religious liberty jurisprudence in this country. For the first time ever, the Court could hear a case involving a state’s removal of the religious exemption to mandatory school vaccinations, with the potential not only to restore religious exemptions in Connecticut, but to open the doors to religious exemptions being restored in California, New York, and Maine. Even West Virginia, which has never had a religious exemption to school vaccinations, could follow Mississippi in gaining a court-ordered religious exemption after a victory in our case.
We have traveled a long road these past three years, and now it all comes down to this. It has not been easy, or inexpensive. We are so grateful to our generous donors whose support has carried us this far, but the battle is far from over. Please support the work of We The Patriots USA as we continue to fight on the front lines of religious and medical freedom all across the country, and encourage all of your friends and family members to do the same. We have encountered vicious censorship from all sides, so much so that most people are not even aware of this lawsuit or its potential. And of course, please also remember to pray for us, as we ask God to provide us with the strength and wisdom to emerge victorious. We know that He stands with us, since we stand on the side of Truth and Justice. May God bless each one of you.
God bless you for all the work you are doing. Hard to believe that we are losing our medical and religious freedoms in the so-called freest country in the world…..
Congratulations on your first 'Stack. Enlightening...
As someone with nearly 20 years in HR with half a dozen years before that as a manager, I developed familiarity with both medical and religious 𝒂𝒄𝒄𝒐𝒎𝒎𝒐𝒅𝒂𝒕𝒊𝒐𝒏 in the workplace. Accommodating an individual based on medical or religious grounds was immaterial to the work required of the individual; we, the company, made reasonable adjustments in order to facilitate that person's particular circumstances. The accommodation did not "exempt" the person from carrying out their job responsibilities.
I raise this as more than semantics. People hear "accommodation" very differently from "exemption." In practical terms, these two terms mean different things, as well. Does the law recognize this difference; I 𝒕𝒉𝒊𝒏𝒌 it does. Do the precedents you cited rely on "exemption" or "accommodation?" The FMLA, the ADA, and the U.S. Civil Rights Act came after the precedents that form the basis of current discrimination.
Good luck with your case and the Supremes...Godspeed.