Federal District Court Upholds California’s Denial of Religious Exemptions to Student Vaccinations, but With a Problematic Twist

Many people have been following the news on mandatory vaccinations for students. While vaccination requirements make total sense, and refusing to excuse those with non-religious objections to receiving a vaccination (often based on weak pseudo-science) also makes sense, the question of religious exemptions is a bit harder. A number of people have pointed out that religious exemptions have existed for quite some time and have not caused serious problems until recent times when the anti-vaccination movement began seeking personal exemptions without any religious basis. This meant that a larger number of students without adequate vaccinations began attending school.

Until recently, California allowed personal exemptions to it’s mandatory vaccination law. Religious exemptions were just one kind of personal exemption. This changed when California SB 277 became law. SB 277 removes the personal exemption, including religious exemptions, to the mandatory vaccination requirements. It does, however, contain exemptions for those who are home schooled, those who have a medical condition that prevents them from getting vaccinated, and those students who have an Individualized Education Program.

Parents of students who have religious objections to being vaccinated filed suit seeking an injunction against applying SB 277 to those with religious objections to vaccination. On August 26, in Whitlow v. State of California, the Federal District Court for the Southern District of California held that there is no constitutional basis for requiring California to provide a religious exemption to SB 277. For the most part the court’s legal analysis is quite good. Under Employment Division v. Smith, there is no duty to provide an exemption to a generally applicable law like SB 277, and California does not have a RFRA. Even if it did,  the state would almost certainly have a compelling interest in preventing the outbreak of preventable diseases in schools, and requiring school children to be vaccinated would be narrowly tailored to meet that interest.

Yet, at page 9 of the opinion, the court dismissed the parents’ argument that the state  needs to show a compelling interest, even under Smith, because SB 277 has a pattern of exemptions. In Smith, the Court held that Sherbert v. Verner and some of its progeny apply only to situations like unemployment where there are a pattern of exemptions under the law (I think this was a profound misinterpretation of Sherbert). In Whitlow, the district court dismissed out of hand the parents’ argument that the pattern of exemptions under SB 277 requires application of the compelling interest test. The court noted that a majority of federal courts have held the mere existence of a secular exemption does not automatically require a religious exemption. That is correct, but it does not mean the existence of secular exemptions are irrelevant. In fact the Smith Court itself wrote:

“As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason. Bowen v. Roy, supra, 476 U.S. at 708.”

Under SB 277 there are three secular exemptions and the court should not have dismissed the argument out of hand. As a practical matter it makes little difference since even if the state needed a compelling interest it most certainly has one in this context. Yet it is not good to perpetuate the idea that secular exemptions never matter in determining whether the compelling interest test applies after Smith.

The Court also addressed arguments under the Equal Protection Clause, Due Process Clause, and a claim under the access to education provision of the California Constitution. The decision can be found here: Whitlow v State of California

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