(from Marty Lederman) re: spiritual treatment exceptions

[Volokh, Eugene]

(FROM MARTY LEDERMAN)


Jim Dwyer writes, with regard to state-law religious exemptions to
childrens' medical treatment requirements:

   The question I would pose for Michael and others is what
justification there
   is for spiritual treatment exceptions in the first place.  From a
doctrinal
   perspective, the Supreme Court's parents' rights decisions do not
recognize
   a parental entitlement to cause children physical harm, and Prince
and some
   dicta in Yoder suggest the opposite.  So the exceptions may be viewed
as
   gratuitous benefits conferred on adult members of certain religious
groups
   (and significantly, not all religious groups that are opposed to
medical
   care; the religion has to be "recognized" by the state and have
"accredited
   practitioners" who provide the treatment).  And the effect of the
exceptions
   is to give children of members of those groups a lesser protection of
the
   laws than other children receive.  So aren't such exceptions
   unconstitutional?  Or can it be a legitimate state purpose to deprive
one
   person of legal protections in order to accommodate the religious
   preferences of another person?

Prof. Dwyer is correct that, as Prince and Yoder suggest, and as (I
believe) every court considering the question has held, there is no FE
right to such exemptions.  There is, nevertheless, an obvious
"justification" for such exemptions -- namely, to permit families to
respond to illness in a manner consistent with their (i.e., the
parents') religious beliefs and principles.  This justification not only
is not "gratuitous"; it is, in fact, analogous to the justification for
the vast majority of permissive religious accommodations:  in the words
of Amos/Texas Monthly/Caldor, et al., such an exemption alleviates what
would otherwise be a significant government-imposed burden on religious
exercise.

That does not mean that such exemptions to medical-treatment
requirements are a good idea, and perhaps all Prof. Dwyer was asking was
whether Prof. McConnell could, as a matter of good public policy,
justify the cost of such exemptions.  But I take it he was asking, not
merely whether a state *should* grant such an exemption, but whether a
state *can* do so consistent with the EC.  The exemption does, as noted
above, satisfy that part of the "accommodation" doctrine that asks
whether the religious exemption alleviates a significant
government-imposed burden.  But the Court also has indicated that
extending an exemption only to religious adherents might nevertheless
raise Establishment Clause concerns if it "burdens nonbeneficiaries
markedly."  Texas Monthly, 489 U.S. at 15 (plurality opinion); see also
Caldor, 472 U.S. at 709-10 (invalidating religious preference because,
inter, alia, it imposed "significant" and "substantial" burdens on
nonbeneficiaries). A religious exemption to child medical-treatment laws
undoubtedly "burdens nonbeneficiaries markedly," at least insofar as it
is fair to characterize the children of religious adherents as
"nonbeneficiaries" of the religious exemption.  So what is the proper EC
result?  (Prof. McConnell appears to concede that such religious
accommodations "have terrible consequences."  60 G.W. L. Rev. at 715 &
n.134.  Does that make them unconstitutional?)

I have twice before asked this same question with respect to the
practice in 48 states of providing religious exemptions to mandatory
child immunization requirements; but few on the list have expressed a
view on whether such exemptions are constitutional.  Any takers this
time around?  (Note that in the immunization cases, the harm to the
children of the religious objectors may be less severe, or less common,
than in the refusal-of-medical-treatment cases, but the immunization
exemptions in addition cause serious harm to *other* children in the
community who will, by virtue of the religious exemption, be more likely
to contract debilitating and deadly diseases.)

Marty Lederman
(in my personal capacity)