This Orthodox Family And Their Yeshiva Are In A Legal Battle Over Vaccines
NEW YORK, NEW YORK – APRIL 19: A sign warns people of measles in the ultra-Orthodox Jewish community in Williamsburg on April 19, 2019 in New York City. As a measles epidemic continues to spread, New York City Mayor Bill de Blasio recently announced a state of emergency and mandated residents of the ultra-Orthodox Jewish community in Williamsburg at the center of the outbreak to get vaccinated for the viral disease. Those who choose not to will risk a $1,000 fine. (Photo by Spencer Platt/Getty Images) Image by Getty Images
Michael A. Helfand June 5, 2019
Last week, a federal court in Brooklyn became the latest battleground in the New York vaccine wars, further testing whether parents can exempt themselves from their legal obligation to vaccinate their children.
The stakes keep getting higher. The CDC has already confirmed 981 cases of the measles in 2019 — more than any year in over a quarter of a century — which the agency attributes, in large part, to communities where children remain unvaccinated.
But what was unusual about this latest lawsuit, filed by Shulamith School for Girls, is that it flips the typical script. Instead of parents claiming a religious right not to vaccinate, it is the school claiming a religious right to require vaccination. And at the heart of this inverted narrative is not only a lesson for resolving the vaccine wars, but a lesson for how our society ought to build its protections for religious liberty.
Like in all legal stories, some background is in order. New York law, motivated by its interest to protect public health, mandates that parents vaccinate their children whether they are attending public school, private school, or even day care. New York law, however, also provides an exception to these rules where parents “hold genuine and sincere religious beliefs” prohibiting vaccination. In such cases of a claimed religious objection, a school cannot reject an applicant for not being vaccinated.
Accordingly, the typical vaccination case goes something like this: Parents apply to have their child admitted to a school. The school finds out that the child hasn’t been vaccinated and refuse admission. Parents then claim that the failure to vaccinate is based upon a sincerely-held religious belief, and sue the school to have their child admitted over the school’s objection.
As an example, consider the following recent case. In 2015, the Hebrew Academy of Long Beach (HALB), an Orthodox Jewish day school, refused admission to a prospective student because the student had not been vaccinated. The parents claimed that they were entitled to a religious exemption under New York law and therefore filed suit in federal court. The court, however, found in favor of HALB, concluding that the parents’ chose not to vaccinate their child for health reasons and not for religious reasons. As a result, the parents did not qualify for the religious exception to New York’s vaccination law; you only fall under the exception if you have religious reasons not to vaccinate. As they say, all’s well that ends well.
But the recent Shulamith case has turned this standard story on its head. The Shulamith case also began with parents, Ilana and Nikolay Jinjihashvili, seeking a religious exemption because, in their view, Jewish law prohibited vaccination. Shulamith, because it believes that, to the contrary, Jewish law requires vaccinations, rejected the Jinjihashvili’s request; but the Jinjihashvilis appealed to New York’s Commissioner of Education, who reversed Shulamith’s decision, requiring Shulamith to allow the Jinjihashvilis’ daughter to participate fully in both school and after school programming.
Shulamith was particularly concerned about an unvaccinated participant in some of their after-school programming open to the community, and filed suit in federal court. And here is where the case veers into new territory: In contrast to the typical case where parents argue their right to a religious exception is being violated, here Shulamith argued that its religious rights were violated by the Commissioner’s decision.
According to the school, because the dispute centered on whether Jewish law required or prohibited vaccinations, the Commissioner’s decision in favor of the Jinjihashvilis violated the long-standing constitutional principle that requires courts to stay out of intra-religious disputes. To do otherwise would draw courts into adjudicating a religious question and thereby impermissibly collapse the wall separating church and state. Put simply, courts should not be in the business of deciding what Jewish law does and does not say.
In this way, HALB’s litigation and Shulamith’s litigation function quite differently. In the case against HALB, the court decided that the beliefs of the parents were not based on religion. And in that way, the court decided the cases without going down the “what-does-Jewish-law-say” rabbit hole.
In Shulamith’s lawsuit, everyone appears to agree that the Jinjihashvili’s claim is based on religion — just that the Jinjihashvilis got religion wrong. And therefore, the case filed by Shulamith appears to implicate this Jewish law debate more directly.
On one level, Shulamith has a point. A court should not get into the business of deciding whether Jewish law requires or prohibits vaccinations. As the Supreme Court noted back in 1981, “Courts are not arbiters of scriptural interpretation.”
However, this constitutional limitation doesn’t necessarily end the inquiry. True, the Commissioner may not be able to resolve what Jewish law does and does not say. But that’s not what the law is asking the Commissioner to resolve. The Commissioner must grant the Jinjihashvilis an exception to the vaccination laws so long as they hold a “sincere religious belief” that prohibits vaccination. And the Commissioner could decide that the Jinjihashvilis believe Jewish law prohibits vaccination without deciding what Jewish law actually says.
As a result, the Commissioner may still have a clear lane to deciding the case without rendering any decision about Jewish law. Jewish law may be beyond the scope of what the Commissioner can decide; but a federal court may very well conclude that deciding what the Jinjihashvilis sincerely believe about Jewish law is simply a question of credibility, not religion.
So where does this leave us? Should Shulamith lose the case? The answer is no, but for a different reason.
The more fundamental problem in this case is not that the Commissioner is deciding what Jewish law says; the problem is that the Commissioner is forcing Shulamith to violate its religious beliefs. By requiring Shulamith to admit a student that has not been vaccinated, the Commissioner is forcing Shulamith to apply a policy that contravenes its own understanding of Jewish law. This is legally unacceptable because the New York State constitution prohibits government from imposing a burden on religious exercise without sufficient government interest justifying that burden.
In this case, that standard clearly tips the scale in favor of Shulamith. The Commissioner is burdening Shulamith’s religion, forcing it to accept a student in contravention of its understanding of what Jewish law demands without a good enough justification for doing so.
Indeed, in this case, the government’s interest would seem to fall on Shulamith’s side of the ledger, whose view of Jewish law aligns with the government’s general interest in promoting public health through mandatory vaccinations.
Or, put differently, New York’s state constitution grants Shulamith a religious liberty claim to fend off the religious exception to New York’s vaccination law; a religious exception to a religious exception, if you will.
There’s an important lesson in all of this. Protecting religion is vitally important for democratic society. Each individual should be afforded constitutional protections to live their lives in accordance with their deeply held religious convictions. But those protections cannot be without limit. And when states protect religion without some sort of counterbalance, the consequences can be devastating — so devastating that, at least at times, the Supreme Court has indicated that an unqualified religious liberty right without any limitation can itself constitute an unconstitutional breach of the wall of separating church and state.
New York’s decision to provide a religious exception to its vaccination laws wasn’t inherently bad; the problem was it wrote that exception into law without any limitation, like denying such an exception where the public health risks ought to be deemed too dangerous to accommodate someone’s contrary religious belief.
By contrast, the religious liberty exception granted in New York’s state constitution strikes a balance. On the one hand, it prohibits government from burdening religion. On the other hand, it allows government to impose such burdens where the state’s interest in a particular case is important enough to ask religion to step aside.
All told, the lesson of this most recent skirmish is not that we need less protection of religious liberty; in fact, we probably need more of it. But at the same time, we need to remember that all protections of religious liberty need a failsafe, guaranteeing that courts can step in when needed to make sure that in our protection of religion, we don’t inadvertently harm some of the most vulnerable among us.
Michael A. Helfand is a Professor of Law and Associate Dean for Faculty and Research at Pepperdine University School of Law
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