The state defendants also contend that, even if the Court declines to abstain from exercising jurisdiction over the Sherrs and Levys' cases, the Court should dismiss plaintiffs' action for lack of standing. Defendants' position essentially boils down to the following: § 2164 provides for mandatory immunization of school children against certain diseases and admits of only two exceptions, i.e., if a licensed physician certifies that vaccination may be detrimental to a given child's health or if a child's parents (or guardian) are "bona fide members of a recognized religious organization" whose doctrines prohibit inoculations. Plaintiffs, who have produced no medical certification that compliance with § 2164's vaccination requirement would be physically harmful to their children and who concede that they are not members of any "recognized religious organization" and thus fall outside the literal language of § 2164(9)'s religious exception, seek that the Court declare their children to be entitled to an exemption from immunization on religious grounds and hold the New York statute's limitation of religiously-based exemptions to "bona fide members of a recognized religious organization" violative of the First Amendment's guarantees of religious liberty and the Fourteenth Amendment's promise to all persons of equal protection of the law. If the Court deems plaintiffs' claims to possess merit, defendants argue, the end result will be that § 2164(9) will necessarily be struck down in its entirety. Accordingly, even if plaintiffs were to obtain a favorable ruling by the Court in the form of a declaration of the invalidity of the statutory exemption, the Sherr and Levy children would still be subject to vaccination under a § 2164 that would lack any religious exception to immunization. Thus, the state defendants conclude, any injury plaintiffs allege cannot be redressed by the remedies that they seek from the Court, and they therefore lack any standing to maintain the lawsuits they have brought before the Court.

Defendants' argument misconstrues the nature of the Sherrs and Levys' actions. Plaintiffs do not seek that § 2164(9) be completely invalidated; rather, they question the legitimacy solely of that portion of § 2164(9) which limits religious exemptions to "bona fide members of a recognized religious organization." A judicial decision in plaintiffs' favor would entail an order declaring the limitation contained in the clause of § 2164(9) at issue to be improper and holding plaintiffs to be entitled to a religious exemption from vaccination. N.Y. Pub. Health L. § 5000 states that:

If any clause, sentence, paragraph, section or part of this chapter shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof, directly involved in the controversy in which such judgment shall be entered.

See also McCartney v. Austin, 31 A.D.2d 370, 298 N.Y.S.2d 26 (3d Dep't 1969).

Under § 5000, only the specific clause of § 2164(9) would be void, not the entire subsection. As plaintiffs point out, acceptance of the state defendants' standing argument would mean that persons who feel that the religious exception § 2164 provides is structured and being applied in an unconstitutional and discriminatory manner would be completely barred from attempting to vindicate their rights in a federal, and by logical extension, state court, and thus would lack any judicial forum for their efforts to obtain the benefit of the religiously-based exception from immunization that the New York legislature has decided to grant state citizens.

V. CONSTITUTIONALITY - Wexler Decision