(from Marty Lederman) re: immunizations

[Volokh, Eugene]

Of course TM and Caldor are distinguishable:  if they weren't, the
immunization statutes would be plainly unconstitutional, and wouldn't
raise an interesting question worth debating on-list.  As I've noted
previously, in its accommodation cases, the Court has focused on two
things:

        (i) whether the religion-only exemption has the purpose and
effect of "alleviat[ing] significant governmental interference with the
ability of religious organizations to define and carry out their
religious missions," Corporation of the Presiding Bishop of the Church
of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335, 339
(1987), or of otherwise removing "a significant state-imposed deterrent
to the free exercise of religion," Texas Monthly, 489 U.S. at 15
(plurality opinion); see also Kiryas Joel, 512 U.S. at 705 (noting that
"the Constitution allows the State to accommodate religious needs by
alleviating special burdens" on religious belief and practice); and

        (ii) whether there is a "significant" or "substantial" harm to
"nonbeneficiaries" (cites in my previous posts).

The statute in Caldor clearly fails both prongs:  there is no
government-imposed burden to be lifted (same as in Hardison); and
there's "significant" and "substantial" harms to employers and
employees, respectively.  And in TM, the plurality concluded that the
tax burden on religious periodicals was (in KJ terms) not "special" --
i.e., no different than the burden imposed on all periodicals.

By contrast, and as Rick suggests, the immunization statutes clearly do
satisfy the first "prong" of the accommodation analysis -- the religious
exemptions undoubtedly alleviate a significant state-imposed burden on
the parents' religious exercise.  The case is interesting precisely
because it focuses on the question of how much "third-party" harm is
permissible before the EC requires invalidation of an exemption that
satisfies this first part of the accommodation "test" (such as it is).
Although the immunization exemptions are, in one sense, less
constitutionally problematic than the Caldor statute in that they do
"alleviate" state-imposed burdens on religious exercise; nevertheless,
they are *more* problematic in the sense that they cause far more
third-party harm (or, in any event, more severe harm to those that are
harmed, if the class of harmed third parties is smaller).  What these
statutes really are analogous to is the conscientious objector statutes
that were written to exempt only religious objectors.  Harlan thought
this was unconstitutional; White did not (see Welsh), and the plurality
punted by pretending that the statute said something it didn't.

Marty Lederman
(in my personal capacity)

-----Original Message-----
From: richard duncan
Sent: Thursday, December 03, 1998 3:54 PM
To: RELIGIONLAW at listserv.ucla.edu@inetgw2
Subject: Re: (from Marty Lederman) RE: Interesting statutory
immunization exem


I think Texas Monthly and Caldor are both distinguishable from the
exemptions under the vaccination law. Texas Monthly involved a large
economic benefit granted to religious publications but not other
publications. The idea was that this amounted to a state subsidy for
religious beliefs. In Caldor, the state was using its coercive power
(its regulatory power over private citizen A) to require A to
accommodate the religious needs of A's employees.

In the vaccination cases, religious belief is not being subsidized and
no third party is being coerced to accommodate anyone's religious
beliefs. The difference between Caldor and the vaccination cases is the
difference between my using the coercive power of the state to force
Marty to adjust *his* business to accommodate my religious beliefs and
Marty insisting that he has the right to force me to accept a bodily
intrusion (in *my* body and against my religious conscience)
in order to bestow a benefit on him. It is, in other words, the
difference between my regulating Marty to impose my religion on him
and my resisting Marty's efforts to regulate *me* when the regulations
require me to do something that my religion forbids.

Marty may have a right not to be regulated to advance my religious
beliefs, but he does not have a right to insist on *my being regulated*
against my faith for his benefit. Does the EC, in other words, give
Marty a right to require everyone to be vaccinated in order to make the
world a safer place for him? I don't think the EC has been or should
be interpreted as giving third persons a right to insist that
religious persons *must be* included under a generally applicable
regulatory scheme (which is what the vaccination laws are).

And again, I don't see the children of religious parents as being
harmed by these exemptions, because these exemptions vindicate the
right of the children to receive a religious upbringing from their
parents.
--
                   ----------
             Rick Duncan (rduncan at unlinfo.unl.edu)

"If God had been indifferent to you he'd have made someone else."
                       --Father Ralph Wright