JAMES R. FILENBAUM, ESQ.

Attorney for Plaintiffs

300 North Main Street

Suite 108

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

120 Broadway

New York, New York 10271

WEXLER, District Judge

I. INTRODUCTION

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 establishes.

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)