JAMES R. FILENBAUM, ESQ.
Attorney for Plaintiffs
300 North Main Street
Spring Valley, New York 10977
INGERMAN, SMITH, GREENBERG, GROSS & RICHMOND, ESQS. BY: WARREN
RICHMOND III, ESQ.
Attorney for Defendants NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL
DISTRICT, DR. WILLIAM J. BROSNAN, JOHN SCURTI and CLIFFORD BISHOP
167 Main Street
Northport, New York 11768
ROBERT ABRAMS, NEW YORK STATE ATTORNEY GENERAL
BY: TARQUIN JAY BROMLEY, ESQ., ASSISTANT ATTORNEY GENERAL
Attorney for Defendants NEW YORK STATE COMMISSIONER OF EDUCATION
and NEW YORK STATE COMMISSIONER OF HEALTH
New York, New York 10271
WEXLER, District Judge
The Bill of Rights opens with the powerful admonition, "Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof ...," U.S. CONST. amend. I, and, at least
throughout most of the twentieth century, courts throughout the United
States have maintained a vigorous watch over possible governmental
encroachment upon the fundamental right of individuals to hold fast to the
beliefs and practices that stem from their personal and diverse
conceptions of the nature of the universe and man's place in it.1/
The Supreme Court, for instance, has held that a state compulsory school
attendance statute cannot be constitutionally applied to fourteen and
fifteen year old Amish children where compliance with the state law
"would gravely endanger if not destroy the free exercise of" the
children's religious beliefs. Wisconsin v. Yoder, 406 U.S. 205,
219, 92 S.Ct. 1526, 1535 (1972), and carved out religiously-based
exemptions to generally applicable requirements for the receipt of state
unemployment benefits, Hobbie v. Unemployment Appeals Commission
of Florida, ____ U.S.____ , 107 S.Ct. 1046 (1987); Thomas v. Review
Board of Indiana Employment Security Division, 450 U.S. 707, 101S.Ct.
1425 (1981); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790
(1963). Other courts have upheld the right of Native Americans to use the
hallucinogenic plant peyote in religious rituals, e.g., State v.
Whittington, 19 Ariz. App. 27, 504 P.2d 950 (1973), cert. denied,
417 U.S. 946, 94 S.Ct. 3071 (1974); People v. Woody, 61 Cal.2d 716,
394 P.2d 813, 40 Cal. Rptr. 69 (1964); Whitehorn v. State, 561 P.2d
539 (0kl. Crim. App. 1977); contra State v. Big Sheep, 75 Mont.
219, 243 P. 1067 (1926); State v. Soto, 21 Or. App. 794, 537 P.2d
142 (1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431 (1976), and
that of individuals to refuse even lifesaving treatment on religious
grounds, e.g., In re Osborne, 294 A.2d 372 (D.C. 1972); In re
Estate of Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965).
Even this most essential freedom of religious belief, worship, and
practice, however, cannot be absolute in a society continually striving to
achieve the proper balance between the liberties of its individual members
and the shared needs of the community at large. In United States v. Lee,
455 U.S. 252, 102 S.Ct. 1051 (1982), for example, the Supreme Court ruled
that Amish employers must contribute to the Social Security system even
though payment of Social Security taxes or receipt of benefits would
assertedly violate their religious beliefs. In Bob Jones University v.
United States, 461 U.S. 574, 103 S.Ct. 2017 (1983), the Court upheld
the Internal Revenue Service's denial of tax-exempt status to two schools
that, in conformance with the dictates of religious beliefs, maintained
racially discriminatory admissions and associational practices.
It has long been settled that one area in which religious freedom must
be subordinated to the compelling interests of society involves protection
against the spread of disease. In Jacobson v. Massachusetts, 197
U.S. 11, 25 S.Ct. 358 (1905), the Supreme Court upheld the
constitutionality of a Massachusetts law requiring compulsory vaccination
and city of Cambridge regulations mandating, under authority of the
statute, that all inhabitants be inoculated against smallpox. As one state
court stated when confronted with a First Amendment challenge to a
vaccination program, the freedom to act according to one's "religious
beliefs is subject to a reasonable regulation for the benefit of society
as a whole. We affirm that the health regulation in question is a
reasonable exercise of police power on a subject of paramount and
compelling state interest and, therefore, is valid." Wright v.
DeWitt School District No. 1, 238 Ark. 906, 913, 385 S.W.2d 644, 648
(1965). See also, e.g., Board of Education v. Maas, 56 N.J. Super.
245, 152 A.2d 394 (1959), affirmed, 31 N.J. 537, 158 A.2d 330, cert.
denied, 363 U.S. 814, 80 S.Ct. 1613 (1960).
Certain states, including New York, have determined that,
constitutional validity aside, the subjecting of individuals to compulsory
vaccination without exception fails to pay sufficient heed to the fact
that inoculations offend certain individuals' religious beliefs. N.Y. Pub.
Health L. § 2164 sets forth a comprehensive scheme under which every
child in New York State must be immunized against poliomyelitis, mumps,
measles, diphtheria, and rubella. A child who has not been administered
vaccinations against these diseases is not permitted to attend school
unless a licensed physician certifies that such immunization may be
detrimental to the child's health. Subsection 9 of § 2164, however,
creates a religiously-based exemption from the law, stating:
This section shall not apply to children whose parent, parents, or
guardian[s] are bona fide members of a recognized religious
organization whose teachings are contrary to the practices herein
required, and no certificate [of immunization] shall be required as a
prequisite [sic] to such children being admitted or received into
school or attending school.
The consolidated cases now before the Court bring into question the
scope of § 2164's religiously-based exclusion from its coverage and the
constitutionality of the law and the specific religious exemption it
1/ The protections of the First Amendment apply not only to actions taken by the federal government, but by those taken by states and local entities and officials as well. Torcaso v. Watkins, 367 U.S. 488, 81S.Ct. 1680 (1961); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900 (1940).
II. PROCEDURAL BACKGROUND OF THE CASES (Wexler Decision)