Rockland County measles requirement might violate Free Exercise (of religion) Clause

The Court of Appeals has ruled that a jury must determine whether the County of Rockland eliminated a religious exception for a mandatory measles vaccine because of the religious bias of the County Executive.

The case is M.A. v. County of Rockland, issued on November 9. Following a measles outbreak in Rockland County in 2018, the County Department of Health ordered that a Waldorf School exclude all non-vaccinated students for 21 days because the school was in the outbreak zone. Prior to this, many of the students got religious exemptions from the measles vaccine. But this and subsequent exclusion orders eliminated all religious and medical exemptions. In March 2019, the County Executive, Day, issued an emergency declaration that barred unvaccinated children from places of public assembly, including schools, unless they had a medical exemption. Day said he did this because he was concerned about a possible rise in measles during the upcoming holiday season of Easter and Passover, and in April 2019, he lobbied the State Legislature to repeal New York's statutory religious exemption to the measles vaccine requirement for schoolchildren. During this lobbying effort, Day said the "anti-vaxxers" were "loud, very vocal, also very ignorant." He also said "There's no such thing as a religious exemption." 

While the district court granted the County's motion for summary judgment, the Court of Appeals (Lee, Park and Pooler) reverses,  holding that a jury might find that Day repealed the religious exemption out of anti-religious bias. The Free Exercise claim is thus reinstated. 

1. The Court holds that "a reasonable juror could find that Defendants acted with religious animus. Notably, Day testified that he issued the Declaration after Ruppert expressed concern over a rise in measles cases during the Easter and Passover holidays. Moreover, in connection with his lobbying for the repeal of a religious exemption to vaccination, Day commented that “[t]here’s no such thing as a religious exception” and characterized 'anti-vaxxers' as 'very ignorant.' Based on these facts, a reasonable juror could find the Declaration was designed 'to target religious objectors to the vaccine requirement because of their religious beliefs.' As the Supreme Court has recognized, the government 'cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.'” The Court adds that a jury could also find there was no religious animus and that Day's statements were merely insensitive and not hostile toward religion. Since there are two ways of assessing Day's comments, this issue is for the jury.

2. The jury may also find the Declaration was not generally applicable and therefore noncompliant with the Free Exercise Clause. Plaintiffs argued that the medical exemption permits unvaccinated children for non-religious reasons to assemble in public places, but that the religious objectors cannot publicly assemble. The Court cannot tell on the summary judgment record whether the Declaration only affects children with medical exemptions and children with religious exemptions, or whether it affects other kids, such as those who are home-schooled or those who object to the vaccine on philosophical grounds. If it only affects children with medical and religious objections, then the Declaration is not generally applicable and would violate the Free Exercise Clause. The jury is going to have to sort this out.