Vaccination mandate exemptions: gimme that ol’ time philosophy

Each of the 50 states and the District of Columbia require vaccination against certain diseases as a prerequisite to public and private school attendance, most commonly polio, mumps, measles, diphtheria, rubella, chicken pox, Heamophilus influenza type b, pertussis, tetanus, pneumococcal disease and hepatitis B. Unfortunately, mandatory vaccination for home-schooled children is rare. (1)

All states provide medical exemptions to vaccination mandates for those for whom vaccination poses a health threat. Indeed, it is doubtful that a state could constitutionally deny such medical exemptions.

Forty-eight states also allow exemptions based on religious beliefs. While it might be assumed that religious exemptions are required by the protection afforded religion under the First Amendment to the U.S. Constitution that is not the case. The opposite is true. Religious exemptions themselves are constitutionally suspect. In fact, to pass First Amendment muster, a state’s religious exemption statute may have to be so broad as to become, in essence, a “philosophical” exemption.

Vaccination mandates survive early challenges

Compulsory vaccination laws have enjoyed strong support in the state and federal courts for over a century. Early in the 20th century, the U.S. Supreme Court considered the constitutionality of a statute authorizing a municipal board of health to require and enforce vaccination, in this case during a smallpox epidemic. The Court found the legislation represented a valid exercise of the state’s police power. In a statement that proved prescient about the failed constitutional challenges to vaccination mandates which followed, the Court said that “we do not perceive that this legislation has invaded any right secured by the Federal Constitution.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905).

In 1922, the Court specifically addressed the subject of school vaccination, holding that it is a valid exercise of the state’s police power to make vaccination a condition of attending public or private school. Zucht v. King, 260 U.S. 174 (1922).

First Amendment challenges to mandates

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”  U.S. Const., amend. I.

The First Amendment protects religious freedom in two ways. First, the “Establishment Clause” prohibits excessive involvement of government in religion, such as by establishing a state religion or by granting special privileges to members of a particular religion. Second, under the “Free Exercise Clause,” the freedom to hold religious beliefs and opinions is absolute, although the freedom to act in accordance with those beliefs is subject to regulation by government for the protection of the public.

Although the case did not involve a challenge to compulsory vaccination, the U.S. Supreme Court, in Price v. Massachusetts, 321 U.S. 158 (1944), considered a challenge to a child labor regulations based on the Free Exercise Clause. The plaintiff had her young niece handing out Jehovah’s Witness literature on the streets and the Court upheld the right of the authorities to prevent her from doing so.

The state’s authority to regulate in the interest of the public’s health, safety and welfare (the “police power”), said the Court,

is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. . . . [t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. . . . Parents may be free to become martyrs themselves. But is does not follow [that] they are free . . . to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” 321 U.S. at 166-167, 170.

While the Court used vaccination as an example in Prince, it has not directly addressed the issue of whether vaccination mandates run afoul of the First Amendment. It again declined to address the issue this year, when it refused to hear a case arising out of a challenge to West Virginia’s mandatory vaccination law.

West Virginia is one of two states which does not have a religious exemption to statutorily-required immunization. Mississippi is the other – its state supreme court struck down a religious exemption as unconstitutional and the state legislature has not enacted another in its place.

West Virginia’s mandatory vaccination law was challenged by a woman whose daughter was refused admission to public school without the required immunizations. The U.S. District Court ruled against her, and the U.S. Court of Appeals for the Fourth Circuit affirmed, finding that the West Virginia vaccination law passed even the “strict scrutiny” test, the most difficult constitutional standard of review. Workman v. Yeager, 419 Fed. Appx. 348 (4th Cir. 2011).

As part of her constitutional argument, Workman proposed that “because West Virginia law requires vaccination against diseases that are not very prevalent, no compelling state interest can exist,” completely ignoring the fact that, were exemptions to be freely granted, diseases that are currently “not very prevalent” could come roaring back.  In any event, the court was unimpressed: “on the contrary, the state’s wish to prevent the spread of communicable diseases clearly constitutes a compelling interest.” Id., at 353.

The court gave similarly short shrift to Workman’s free exercise claim:

In sum, following the reasoning of Jacobson and Prince, we conclude that the West Virginia statute requiring vaccinations as a condition of admission to school does not unconstitutionally infringe Workman’s right to free exercise [of her religion]. This conclusion is buttressed by the opinions of numerous federal and state courts that have reached similar conclusions in comparable cases.” Id., at 353-354.

Statutory exemptions

Despite the clear indications from the U.S. Supreme Court, and actual opinions of lower federal courts, that a religious exemption to vaccination mandates was not constitutionally required, the state legislatures began to enact statutory religious exemptions during the latter half of the 20th century. (2) It is these exemptions – not the lack thereof – which got the states into constitutional trouble.

A 2005 survey of religious exemption statutes found that

[a] minority of states limit codified religious exemptions to those who belong to ‘organized,’ ‘recognized’ or ‘established’ religions. Other states allow exemptions if they find that the petitioner’s beliefs are ‘genuine and sincerely held.’ Finally, some states’ requirements for exemption are met simply if a parent or guardian submits a form or an affidavit, stating opposition to vaccination based on religious grounds.” (3)

The first type of exemption has been held unconstitutional in several states. The second is constitutionally suspect. And the third may allow practically anyone to claim an exemption.

An often-cited case is Sherr v. Northport-East Northport Union Free School District, 672 F. Supp. 81 (1987), although as a district court case it has no precedential value. Parents whose children were denied a religious exemption from mandatory vaccination challenged the New York law, which exempted “children whose parent[s] . . . are bona fide members of a recognized religious organization whose teachings are contrary to the practices herein required.”

Here’s how the complaint described the beliefs of one set of parents, the Sherrs:

All persons must live in harmony with the natural world and its order and must not interfere with the natural order. . . . Health is the unhindered expression of life (God) moving through the body, mind and heart. Therefore, anything that hinders life’s expression is contrary to [the Sherrs’s] religious belief. Immunization hinders life (God) and thus is contrary to God. To deviate (immunize) from this natural order would be to sin.” Id., at 92-93.

When I read this, my CAM radar pinged. I wrote in the margin, “sounds like naturopathy & D.D. Palmer,”  the latter a reference to the chiropractic founder’s belief in “Innate Intelligence” flowing through the body via the spinal nerves, the interruption of which by “subluxations” causes disease.

Sure enough, that’s exactly where the Sherrs’ “religious” beliefs came from. The affidavit requesting that their son be exempted from immunization due to the family’s religious beliefs stated that they were members of the American Natural Hygiene Society, which is “opposed to inoculations as violating the natural laws of life and health by introducing pathological toxins into a healthy, human body.” According to Quackwatch, the Society is an offshoot of naturopathy.

In addition, according to the court,

Alan Paul Sherr [the father] is a chiropractor, and during the course of his testimony, it became clear that his opposition to vaccinations and attitudes toward sickness and health in all likelihood derive for the most part from his medical and philosophical perspective as a chiropractor and chiropractic ethics . . . .” Id., at 96.

Taken together with other evidence, this meant to the court that the Sherrs “do not sincerely hold the religious beliefs that they put forth” and they weren’t entitled to relief. However, the court did find that New York’s limiting religious exemptions to “bona fide members of a religious organization” violated both the Establishment and Free Exercise clauses of the First Amendment, and that the state “must offer the exemption to all persons who sincerely hold religious beliefs that prohibit the inoculation of their children . . .” Id., at 97.

Likewise, two federal district courts struck down Arkansas’s religious exemption statute, which was limited to parents who object “on the grounds that immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent . . . is an adherent or member.” McCarthy v. Boozman, 212 F. Supp. 2d 945, 947 (W.D. Ark. 2002), Boone v. Boozman, 217 F.Supp. 2d 938 (E.D. Ark. 2002).

The court in McCarthy quickly dismissed a challenge to the constitutionality of mandatory immunization: “It has long been settled that individual rights must be subordinated to the compelling state interest of protecting society against the spread of disease.” 212 F. Supp. 2d at 947. However, “[i]f the legislature chooses to provide a religious exemption from compulsory immunization . . . the exemption itself must pass constitutional muster.” Because the Arkansas statute limited exemption to “only those who are members or adherents of a church or religious denomination recognized by the State,” the statute “clearly runs afoul” of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. Id.

“Sincerity” test

Despite the language of Sherr indicating that an examination of the sincerity of religious belief is permissible, this test for religious exemption may itself be constitutionally suspect under the Establishment Clause. According to one commentator:

Under the sincerity test, the party desiring exemption must demonstrate to the satisfaction of the court that his or her asserted beliefs are ‘sincerely’ held. Evidence a court might use in a sincerity analysis includes (1) whether the adherent acted inconsistently with the belief at issue; (2) whether the adherent materially gained by masking secular beliefs with a religious veneer; and (3) the religion’s history and size. Courts must further exercise ‘extreme caution’ when conducting a sincerity analysis because the inquiry ‘in essence puts the individual on trial for heresy.’ The court therefore becomes excessively involved and ‘entangled’ in an analysis of an individual’s religious beliefs when it engages in a sincerity analysis . . . and therefore this form of exemption statute violates the Establishment Clause.” (4)

Everybody’s got religion

Unfortunately, the religious exemption statutes most likely to survive constitutional challenge are the most inclusive – those that automatically allow an exemption without proof that the beliefs are indeed religious in origin or that they are “sincere.” (5)

The problem is exacerbated by the lack of statutory authority in many states to challenge claims based on religious beliefs or the relaxed enforcement of existing rules. (6) As one commentator points out,

Parents wishing to offer additional proof that their opposition to exemption is for religious reasons can seek out the assistance of numerous websites offering relevant Biblical quotations to include in letters of petition for exemption. Also, for a little as $1, parents can join mail-order religious groups, such as the taxpaying Congregation of Universal Wisdom, headquartered in the New Jersey Pine Barrens.” (7)

The ease with which parents can transform anti-vaccination sentiment into a religious belief is demonstrated in Turner v. Liverpool Central School District, in which the court upheld a claim of religious exemption based on membership in the Congregation of Universal Wisdom, a church whose principles were founded on chiropractic philosophy and which held no regular meetings. The court found that “the one consistent aspect of plaintiff’s testimony was that she believed in a universal life force or wisdom and that immunization would be violating that life force.” This was sufficient to meet the state’s statutory religious exemption requirements. (8)

In essence, religious exemptions have the potential to swallow the rule in that they allow transformation of a “philosophical” belief into a “religious” belief by prohibiting inquiry into the origin, nature or sincerity of belief, without the state actually enacting an exemption based on philosophical beliefs.

This subterfuge is unnecessary in the twenty states which have explicit philosophical exemptions. (9) These basically allow anyone to claim an exemption and are more widely used than religious exemptions. In states with both religious and philosophical exemptions, parents claiming the latter far exceed the number claiming the former. (10) This, of course, leads to greater risk of  children contracting vaccine-preventable diseases.


There is no constitutional right to exemption from mandatory vaccination laws on religious grounds. Thus, religious exemptions to state vaccination mandates are not constitutionally required. Indeed, they may be constitutionally suspect. If a state’s intention in enacting a religious-based exemption – to accommodate those who sincerely believe their established religious tenets prohibit vaccination – cannot be achieved by constitutional means, then the only way to achieve such accommodation is to open the exemption up to essentially everyone who claims a religious reason, whether sincerely held or fabricated for the occasion. This essentially creates a “philosophical” exemption. The consequences of this meaningless exemption, open to anyone who opposes vaccination, are a threat to public health.


1. Donya Khalili & Arthur Caplan, Off the Grid: Vaccinations Among Homeschooled Children, 35 J.L. Med. & Ethics 471 (2007).

3. Note, A Bad Reaction: A Look at the Arkansas General Assembly’s Response to McCarthy v. Boozman and Boone v. Boozman, 58 Ark. L. Rev. 251 (2005).

3. Id., at 268-269 (footnotes omitted).

4. Alicia Novak, Comment: The Religious and Philosophical Exemptions to State-Compelled Vaccinations: Constitutional and Other Challenges, 7 U. Pa. J. Const. L. 1101, 1114 (2005) (footnotes omitted).

5. Id., at 1114-1115.

6. Ross D. Silverman, No More Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public Health Protection, 12 Ann. Health L. 277, 285.

7. Id.

8. Linda E. LeFever, Comment: Religious Exemptions from School Immunization: A Sincere Belief or Legal Loophole? 110 Penn St. L. Rev. 1047, 1047 (2006).

9. Unpublished Opinion (N.D.N.Y.,  March 8, 2001) reported in N.Y.L.J., Mar. 20, 2001, at 29, discussed in, Silverman, note 6, at 286-288.

10. Silverman, note 6, at 1116-1117.

Posted in: Chiropractic, Legal, Politics and Regulation, Public Health, Religion, Vaccines

Leave a Comment (13) ↓

13 thoughts on “Vaccination mandate exemptions: gimme that ol’ time philosophy

  1. DevoutCatalyst says:

    Has there been an uptick in newborn screening refusals in recent times? Refusal seems like a badge for some parents. Collect them all.

  2. rork says:

    Thanks for the useful review.
    The “organized”,”established” or “recognized” stuff is crazy (my unnamed church only has 1 member – so what?), and the sincere stuff seems the same to me – but, the law in other places does try to determine people’s internal mental states. I find that goofy too, but admit I am interested in the degree to which a death by gunshot was accidental or intentional, which might not be a very scientific outlook. So I’m in trouble. Maybe my extra dislike of “sincere” crap is that someone is deciding what is and what is not religion, or philosophy. That a thing seems logically impossible may not be an impediment to the law though. Will we need inquisitors to see if your philosophy is sufficiently reality-based and internally self-consistent? Great.

    I’m more interested in people’s views about the practicality of abolishing exemptions. I had previously talked myself into the idea that we shouldn’t force it on people, but persuade them. I think I am ready to change my mind though. Even if logical, I fear that is utopian – the amount of public education necessary to change the law seems almost impossible to achieve (I’m in MI). Might require some catastrophes to happen first.

    A more trivial thought: what is there to counter a flood of junk medical exemptions? Licensing boards?

  3. daedalus2u says:

    rork, how about malpractice? I would think that anyone who gets infected through someone who got a “medical” exemption might have a case against that person and their doctor for not taking the proper precautions to prevent transmission.

  4. DugganSC says:

    In terms of constitutional basis, I suspect most would trace it back to that bit of “life, liberty, and pursuit of happiness” as well as the tacked on “right to privacy” some people insist is in there. To them, it’s a personal choice, not something that the government should be impinging upon. In some cases, they may be genuinely opposed to the idea of the vaccination and probably see the government mandating it as tantamount to the government deciding that all children need a good steak dinner to help preserve their health even if their family has vegan or Hindu roots. Personally, I think vaccinations are more of a general public health initiative, like feeding one’s kid properly or providing shelter, but I could easily see cases where the methodology is where they are in opposition.

    Myself, I’m for vaccinations so long as they’re demonstrably effective and that the cost isn’t greater than the benefit. The current vaccinations all fit that criteria to me. Admittedly, the “religious exemption” bit is near and dear to me, though, as a Catholic whose finding that the current changes in health law are forcing the Church to fund things like abortifacents in the health care for their workers. The exemptions do frequently make reference to “Established religions” as well as one of the more recent ones requiring 100% adherence by the employees to allow for the exemption. As I’ve argued to a number of my friends, if nothing else, the law seems to be implying that only the religious are allowed to make an ethical choice and that the only way to pursue such an ethical choice is to close ranks against those not agreeing with your religious beliefs. To me, that seems backwards.

    In the end, it comes down to the debate of safety versus liberty. Where is the government allowed to restrict liberty in the course of attempting to protect the people? I think that most people would agree that there needs to be some strictures, for example the classic examples of seat belts and crosswalks, but people start getting funny when it comes to letting the government stick needles in the body of the people.

  5. Geekoid says:

    The government doesn’t stick needles into people, doctors and nurses do.

    Also, the Catholic Church’s policy is that you should get vaccinated. Granted, that’s only one slice of religious nonsense, but it’s big one.

    “the Church to fund things like abortifacents in the health care for their workers.”
    So? it doesn’t mean the Church doctrine has to OK them, nor does it mean the workers have to get them. It’s just part of a broader health care package.

    OTOH, I am forced to pay more taxes so the government can give tax breaks to believers.

  6. ADif says:

    Unless I am mistaken, ‘Freedom of Religion’ does not extend to commission of crime or acts prejudicial to public health and safety. So if failing to vaccinate presents a danger to the public (which it clearly may), Religion does not exempt anyway. A Religion may most plausibly mandate human sacrifice, but that doesn’t mean we have to allow its practice because of the ‘Freedom of Religion’ clause.

  7. DugganSC says:

    So? it doesn’t mean the Church doctrine has to OK them, nor does it mean the workers have to get them. It’s just part of a broader health care package.
    I don’t particularly want to get into a long discussion of relative ethics of direct and indirect action, but suffice to say that there are people who believe that funding wrongdoing and wrongdoing aren’t that far from each other.

    OTOH, I am forced to pay more taxes so the government can give tax breaks to believers.
    *shrug* Tax breaks to any non-profit organization. Non-profit doesn’t equal religion or vice versa.

    And yes, the Catholic church has no objections to vaccines that I know of, although I don’t believe it really takes a stance for or against, leaving it to personal choice. I apologize if I confused you by moving from making a commentary on why some people could believe in a constitutional right to not do vaccinations to adding an addendum that while I’m in favor of vaccinations, I have my own personal biases towards religious exemptions. I probably made the transition too abruptly as my train of thought shifted tracks.

  8. Scott says:

    Philosophical exemptions, it seems to me, are grossly inconsistent with the very idea of a mandate.

    “This is required.”
    “I’d kinda rather not.”
    “Oh, OK then.”

    At most it’s requiring a bit of paperwork. One really wonders what the legislators were thinking – did they actively want something that’s a “mandate” in name only? Or just not realize the implications?

  9. Lytrigian says:

    I would not be too surprised to discover that the broader religious exemptions were, in many cases, merely trojan horses to allow vaccine refusal more or less at will. After all, the real religions that might forbid vaccination are too vanishingly small to have any real political impact in most places. Not so for anti-vaxers, CAM boosters, etc.

  10. gmccardle says:

    Owing to the fact that there is no constitutional right to exemption from mandatory vaccination laws on religious grounds, the various states must have such laws in place for political reasons. I do not pretend to know the complex inter-workings of politics, but I do know the effects of a poorly executed vaccination plan. Unnecessary illness and deaths are the trade-offs for religious freedom in this case. As medical professionals, especially in Infectious Diseases, a considerable part of our efforts should be spent educating the public and our legistlators on the dangers of being vaccination free. When knowledge fails, (I really hate to say this) legal action may be necessary to protect the public.

    The Inconvenient Truth

  11. sarah007 says:

    Duggan said “Myself, I’m for vaccinations so long as they’re demonstrably effective and that the cost isn’t greater than the benefit. The current vaccinations all fit that criteria to me.”

    This is a belief argument, we don’t have this demonstrably effective data, the recent swine flu saga which turned out to be bullshit certainly is a contempory example of failure to show anything.

    So what are your criteria for effectiveness? There were a lot of attempts to mandate these vaccines but it fizzled out because Doctors and nurses in New York for example were making applications to court to refuse the vaccine on saftey and efficacy grounds. I asked a nurse who did routine flu shots at work places if she thought it did any good, she said she had never seen any benefit it was just her job and she wouldn’t ever consider having it.

    There is lots of wish list stuff about vaccination and a massive gap in efficacy trials against those who don’t.

    The link that you put to dwnomad mentions the mythology of “herd immunity”, a theory not a fact.

    Actually, herd immunity refers to a term coined in 1933 (prior to vaccine usage) in the American Journal of Epidemiology. It’s imperative to note that the term was referring to immunity derived from natural infection not a vaccine.

    The term that should be referenced when refering to vaccines is artificial herd immunity.

    Since 1933, there has been only one trial to test the theory of “artificial herd immunity” which is what vaccination attempts to acheive. The one and only clinical trial (in 2010) laid claim that their results “offer experimental proof” to support that vaccinating against influenza interrupts transmissions. The trial followed the children for only 6 months and does not attempt to declare any lasting effects of this vaccine induced herd immunity. The naturally disease-conferred herd immunity is believed to last a lifetime, with no booster injections needed.

    (Interesting to note that this trial used the Hepatitis B vaccine as their placebo group. I imagine if they tested against children that were unvaccinated it would skew their findings.)

    It always amazes me how psuedo septiks use Herd immunity as some kind of religious dogma factoid.

  12. sarah007 says:

    Gmmcardle said “Unnecessary illness and deaths are the trade-offs for religious freedom in this case.”

    Sorry Jim but this is anecdote. A lot of uneccessay illness and death happens with vaccination, the recent swine flu scam has left piles of mess world wide and we all paid for it too.

    I find it difficult to accept that the vaccinators get immunity from prosecution but you are implying that we should be forced to accept it. Studies on vaccinating care workers with old people in the Cochraine review found no evidence to support the supposition that this protected the old folks, it’s one in a long line of vaccine myths that keep this medieval practice going.

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