No religious discrimination when state eliminates religious exception to vaccine requirements

This case arises from the modern-day vaccine wars. Some states have repealed their religious exemptions to the mandatory vaccine requirements. Religious objectors are now suing over this, claiming that by repealing the religious objections, the states are practicing religious discrimination by turning their backs on religious principles. The Second Circuit rejects that argument and holds that Connecticut was able to repeal the religious objection consistent with the freedom-of-religion clause of the First Amendment. 

The case is We the Patriots, Inc. v. Connecticut Office of Early Child Development, issued on August 4. A few years ago, some parents were opting out of the measles vaccine, which prompted some states to eliminate the loophole these parents had been invoking: the religious objection. The problem was, the Court of Appeals (Chin, Leval and Bianco) notes, is that declines in the proportion of immunized schoolchildren were making it more likely that measles might spread in the schoolhouse. 

The Free Exercise Clause is the religious freedom provision under the Constitution. In 1990, the Supreme Court said that state laws that have an adverse impact on certain religious practices do not violate that Clause if the laws apply to everyone and are not targeted toward a particular religious practice. That ruling, Employment Division v. Smith, made it much harder to bring Free Exercise challenges, even if some law really burdened a religious practice. So long as that law was generally applicable to everyone, there was no religious freedom lawsuit. You may not believe this, but the Smith ruling, which makes it harder to win religious freedom cases, was written by Justice Scalia, one of the most conservative Supreme Court Justices we ever had. The liberals dissented in Smith.

In this case, the Connecticut law applies to everyone and there is no evidence of religious hostility in revoking the measles vaccination requirement. While Connecticut does make an exception for people who are not able to take the vaccine for medical reasons (i.e., if they are allergic) that exception does not place religious objectors on unequal footing under the Free Exercise Clause because, under the complex balancing test that guides religious freedom cases (developed in part through the COVID cases in the last few years), the medical exception promotes the government interest in promoting student health and safety. As the Court of Appeals puts it:

The Act promotes the health and safety of vaccinated students by decreasing, to the greatest extent medically possible, the number of unvaccinated students (and, thus, the risk of acquiring vaccine-preventable diseases) in school. The Act also promotes the health and safety of unvaccinated students. Not only does the absence of a religious exemption decrease the risk that unvaccinated students will acquire a vaccine-preventable disease by lowering the number of unvaccinated peers they will encounter at school, but the medical exemption also allows the small proportion of students who cannot be vaccinated for medical reasons to avoid the harms that taking a particular vaccine would inflict on them. It is for these reasons that the acting commissioner of the Department of Public Health testified that "[h]igh vaccination rates protect not only vaccinated children, but also those who cannot be or have not been vaccinated." In contrast, exempting religious objectors from vaccination would only detract from the State's interest in promoting public health by increasing the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike.

Judge Bianco dissents in part on this issue. Free Exercise Clause jurisprudence is still developing in the wake of the vaccine wars. My sense is this issue will reach the Supreme Court soon.