Team 2414
Team 2414
Docket No. 15-1977
________________________
________________________
Gerald BLACK, et al,
Petitioners,
v.
James WALSH and Cindy WALSH,
Respondent
________________________
On Writ of Certiorari
to the United States Court of Appeals
for the Twelfth Circuit
___________________________
BRIEF FOR RESPONDENTS
________________________
Counsel for Respondent
September 26, 2015
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES .......................................................................................... iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW ..........................................vii
STATEMENT OF THE CASE ........................................................................................ 1
OPINIONS BELOW ........................................................................................................ 3
SUMMARY OF THE ARGUMENT ............................................................................... 6
STANDARD OF REVIEW ............................................................................................ 10
ARGUMENT ................................................................................................................. 11
I. The Establishment Clause prohibits the government from granting an
exemption to a mandatory vaccination law that favors religion over
nonreligion .......................................................................................................... 11
A. Pacifica’s exemption favors religion over
nonreligion..................................................................................................... 11
1. The religious exemption requires a nonreligious objector to conform her
life to the religious objector’s demands and improperly relies on an
educator to determine how many can safely qualify for the exemption12
2. The religious exemption fails to pass the Lemon and Historical Basis
tests .......................................................................................................... 16
B. The religious exemption compels citizens to become a part of the staterecognized faith or lie about having that faith to receive those benefits. .. 22
II. The government violates the Due Process Clause of the Fourteenth
Amendment when it forces children to watch videos it knows directly
contradicts their parents’ personal beliefs ........................................................ 24
A. The government’s action deprives parents of their fundamental liberty
interest in the care, custody, and control of their own children ................. 25
ii
1. The school district unconstitutionally engaged in an attempt to
indoctrinate Children to hold views contrary to those of their parents’
views ......................................................................................................... 26
2. Parents have the primary responsibility to introduce sensitive topics,
inculcate moral standards, religious beliefs, and elements of good
citizenship ................................................................................................ 29
B. The government’s actions deprive parents of their constitutional right to
privacy to make intimate familial decisions................................................ 32
C. The government’s interference with a parent’s fundamental liberty
interest in the care, custody, and control of her children fails strict
scrutiny .......................................................................................................... 34
1. This Court presumes that fit parents act in their children’s best
interests ................................................................................................... 35
2. The government lacks a compelling government interest to justify an
intrusion on parental rights in their children’s education .................... 37
3. The government’s actions sweep too broadly in attempting to further
its purported interest. ............................................................................. 39
CONCLUSION .............................................................................................................. 41
APPENDIX .................................................................................................................. A-1
iii
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Page
Cnty. of Allegheny v. ACLU,
492 U.S. 573 (1989) ................................................................................ 11, 20, 22
Cutter v. Wilkinson,
544 U.S. 709 (2005) ......................................................................... 12, 13, 14, 15, 16
Estate of Thornton v. Caldor,
472 U.S. 703 (1985) ..................................................................................... 11, 13, 14
Everson v. Board of Education,
330 U.S. 1 (1947) ..................................................................................................... 24
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ............................................................................................ 17, 23
Lemon v. Kurtzman,
403 U.S. 602 (1971) ........................................................................ 12, 16, 17, 19, 21
McCreary Cnty, Ky. V. American Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ................................................................................................ 10
Meyer v. Nebraska,
262 U.S. 390 (1923) ................................................................................................ 25
Moore v. East Cleveland,
431 U.S. 494 (1977) ........................................................................................ passim
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary
268 U.S. 510 (1925) .............................................................................. 25, 26, 32, 39
Prince v. Massachusetts,
321 U.S. 158 (1944) .................................................................................... 32, 38, 41
Thomas v. Review Bd. Of the Indiana Emp’t Sec. Div.,
450 U.S. 707 (1981) ................................................................................................ 16
Town of Greece v. Galloway,
134 S. Ct. 1811 (2014) ................................................................................ 12, 17, 18
iv
Troxel v. Granville,
530 U.S. 57 (2000) .......................................................................................... passim
Washington v. Glucksberg,
521 U.S. 702 (1997) ................................................................................................ 25
Welsh v. United States,
398 U.S. 333 (1970) ................................................................................................ 11
Wisconsin v. Yoder,
406 U.S. 205 (1972) ................................................................................................ 25
Zucht v. King,
260 U.S. 174 (1922) .................................................................................... 17, 23, 24
UNITED STATES COURTS OF APPEALS CASES
C. N. v. Ridgewood Bd. of Educ.,
430 F.3d 159 (3d Cir. 2005) ............................................................................. 29, 31
Fields v. Palmdale Sch. Dist.,
427 F.3d 1197 (9th Cir. 2005) ........................................................................ passim
Otten v. Baltimore & O.R., Co.,
205 F.2d 58 (2d Cir. 1953) ............................................................................... 14, 15
Parker v. Hurley,
514 F.3d 87 (1st Cir. 2008) .................................................................. 26, 27, 29, 31
Workman v. Mingo Cnty. Bd. Of Educ.,
419 Fed. Appx. 348 (4th Cir. 2011) ....................................................................... 23
UNITED STATES DISTRICT COURT CASES
McCarthy v. Boozman,
212 F. Supp. 2d 945, 948 (W.D. Ark 2002)............................................................ 18
Sherr v. Northport—East Northport Union Free Sch. Dist.,
672 F. Supp. 81, 88 (E.D.N.Y. 1987) ............................................................... 18, 21
STATE COURT CASES
Brown v. Stone,
378 So. 2d 218 (Miss. 1979) ................................................................................... 18
v
Cude v. Arkansas,
377 S.W.2d 816 (Ark. 1964) ................................................................................... 18
UNITED STATES CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ..................................................................................................... 11
U.S. Const. amend. XIV ............................................................................................ 7, 24
STATE STATUTES
Pac. Health & Safety Code § 123 (2012) ...................................................... 3, 15, 19, 21
Pac. Health & Safety Code § 124.1 (2015) ........................................................... passim
Pac. Health & Safety Code § 124 (2012) (repealed)........................................... 1, 11, 40
LEGISLATIVE RECORD
Pac. Legis. Rec. 14/6935. ......................................................................................... 19, 20
SECONDARY SOURCES
Centers for Disease Control and Prevention, Measles Cases and Outbreaks,
http://www.cdc.gov/measles/cases-outbreaks.html...................................................... 11
Daniel R. Feikin, et al., Individual and Community Risks of Measles and Pertussis
Associated with Personal Exemptions to Immunization, 284 JAMA 3145 (2000) .... 19
Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in
Vain: Use and Abuse of Religious Exemptions from School Immunization
Requirements, 65 Hastings L.J. 1551 (2014) ............................................ 19, 22, 23, 24
vi
STATEMENT OF ISSUES PRESENTED FOR REVIEW
I.
Whether a state violates the Establishment Clause when it amends its
exemptions from mandatory vaccinations to deprive a nonreligious objector of
a personal belief exemption, while maintaining an exemption for religious
beliefs?
II.
Whether a public school violates the Due Process Clause of the Fourteenth
Amendment when it requires children to watch a video it knows directly
contradicts the wishes of the parents?
vii
STATEMENT OF THE CASE
There are two schools of thought in Pacifica: a religious thought and a
nonreligious thought. Prior to August 1, 2015, the state allowed both schools of
thought to claim an exemption to its immunization mandate. (R. 2.) The religious
objector could claim that his religion opposed vaccinations and he should not have
to vaccinate his children. Pac. Health & Safety Code § 124 (2012) (repealed). The
nonreligious objector could claim that personal research led her to believe that
vaccines cause disorders like autism and she should not subject her child to such a
risk. Id. The exemptions reflected those found in California. (R. 2.) Not for long,
though.
California, not Pacifica, suffered an epidemic. (R. 2.) Measles plagued
California. (R. 2.) Measles did not plague Pacifica. (R. 2.) Many, around the United
States, feared that exemptions to mandatory vaccinations were the cause. (R. 2.)
Pacifica shared in that fear. (R. 2.) Pacifica responded with new legislation. The
legislation eliminated the personal-belief exemption. (R. 2.) Nonreligious objectors
must now vaccinate their kids. Religious objectors do not.
The legislature’s reason for granting exemptions to religious objectors and
depriving exemptions from nonreligious objectors is twofold. Legislators who
sponsored the change claimed religious freedom is important. (R. 3). The freedom is
just as important as public health. (R. 3.) Legislators also wanted to maintain the
benefits of mass immunization. (R. 5.) It had to strike a balance between the
number of granted exemptions and the number of vaccinated children. (R. 5.)
1
Pacifica required nonreligious objectors to vaccinate their children to allow religious
objectors their exemption. (R. 5.)
Now a nonreligious objector must take her children to the doctor. She must
pay the doctor to give her children a vaccine. The government requires that she
vaccinate her children even though she believes the vaccine will give her children
autism. (R. 4.) The government requires that she vaccinate her children even
though her children have claimed the exemption every year since entering school.
(R. 4.) Brenda and Brandon Walsh’s mother invoked a personal-belief exemption to
mandatory vaccinations pursuant to §124 nearly four years ago. (R. 4.) After years
of personal research, Ms. Walsh had a strong fear and personal-belief vaccinations
were responsible for autism. (R. 3.)
In September 2014, West Beverly Elementary segregated exempted students
from their peers and required them to stay on campus, while the rest of their class
had the privilege of attending a field trip. (R. 3.) Brenda and Brandon Walsh were
prohibited from visiting the local petting zoo with the rest of their classmates. (R.
3.) Instead, back at the school the children were required to watch a video on
vaccinations provided by the Pacifica Superintendent of Public Education. (R. 3.)
The video, The Truth About Vaccines, directly contravened Ms. Walsh’s
personal-belief exemption. (R. 3.) The video pushes that vaccines do not cause wide
spread harm, and especially not autism. (R. 3.) It showed children whose parents
believed that vaccinations cause autism and classified those beliefs as “faulty.” (R.
3.) The featured children are shown going back and challenging their parents with
2
what they learned. (R. 3.) The featured children are then allowed to consent to
vaccinations or the parents “learn the error of their ways.” (R. 3.) The video ends
instructing its target audience, children of ages 8-12, to go back and confront their
parents stating: “Now that you know the truth about vaccines, it’s up to you to
spread that truth to your family and friends.” (R. 3.)
Brenda and Brandon Walsh, after being forced to watch the video at school
began challenging their mother’s view on vaccinations. (R. 4.) Ms. Walsh asserts her
children began to question her competence and showed a lack of respect for her
authority. (R. 4.)
West Beverly Elementary required the Walsh children to watch The Truth
About Vaccines, without their mothers consent and without providing notice. (R. 3.)
Mrs. Walsh provided nearly four years earlier a written notice for her children’s
exemption. (R. 3.) The Walsh children’s principal has now indicated that she is
going the video for a second time in the upcoming school year without any ability to
opt out. (R. 3.)
OPINIONS BELOW
The Walshes sought an injunction against the State of Pacifica to prevent
Pacfica Health & Safety Code § 123 (2012) from applying to their children during
the 2015-2016 school year. (R. 1.) The Walshes claimed that the legislators choice to
eliminate a personal belief exemption, while maintaining a religious exemption
violates the Establishment Clause. (R. 1.) Additionally, the Walshes enjoined the
West Beverly School District from showing The Truth About Vaccines to their
3
children in the future. (R. 1.)
The district court agreed the Establishment Clause to mean no official
preference of religion over nonreligion. (R. 4.) The court’s opinion rested on Cutter.
(R. 5.) The court argued that the state properly considered the number of
exemptions it could tolerate, while maintaining mass immunization. (R. 5.) It
further argued this Court allows for sectarian prayers in legislative sessions in
Town of Greece. (R. 5.) The prayer in Town of Greece in combination with the ruling
in Cutter shows that government accommodation does not coerce nonreligious
citizens. (R. 5.) It denied the injunction.
The district court affirmed that the Walshes have a fundamental right to the
care, custody, and control of their children. (R. 5.) Public schools cannot undermine
the moral teachings found in that fundamental right. (R. 5.) The court found that
the purpose of The Truth About Vaccines is to indoctrinate children. (R. 6.) The
video—especially
when
forced
upon
a
child
in
isolation—enhances
the
indoctrination. (R. 6.) The court found that the school district showed the video
knowing that it contradicted the Walshes’ personal beliefs. (R. 6.) It held that the
Walshes should be able to exempt their children from watching the video. (R. 6.)
The Walshes appealed the district court’s ruling that law violates the
Establishment Clause. (R. 11.) The school district cross appealed the courts ruling
that the showing violates the Walshes’ due process rights as parents. (R. 11.)
On appeal, the Twelfth Circuit Court of Appeals found that district court
misunderstood the Walshes’ Establishment Clause claim along with the relevant
4
Supreme Court rulings. (R. 13.) It reversed the district court’s Establishment
Clause ruling. (R. 15.) The appellate court found that the district court incorrectly
applied Cutter. (R. 13.) According to the appellate court, this Court requires the
government to balance the accommodation against the burden it places on
nonbeneficiaries. (R. 13.) In Pacifica, the nonbeneficiaries would be the
nonreligious. (R. 13.) The Twelfth Circuit found that the government does not
balance the burden on nonbelievers. (R. 13.)
The court went on to evaluate the exemption as it relates to both the Lemon
and historical basis test in Town of Greece. (R. 14.) The court found that the law
violated Lemon’s first two prongs. (R. 14.) It also found that mandatory vaccination
laws do not, historically, maintain religious exemptions. (R. 14.)
The Twelfth Circuit also held that the law does have a coercive effect. (R. 13.)
The nonreligious could view the exemption as a benefit. (R. 13.) The Walshes do. (R.
13.) Such a benefit could cause the nonreligious objector to take up faith just to
receive an exemption that supports her personal belief. (R. 13.)
The Court of Appeals agreed with the district court that, according to Troxel v.
Granville, 530 U.S. 57 (2000), the Walshes have a fundamental right in the care,
custody, and control of their kids. (R. 15.) It held that the school violated the
Walshes fundamental rights when it showed the video, The Truth About Vaccines,
despite knowing that it contradicted the Walshes beliefs. (R. 15.)
The appellate court further argued that the school’s actions failed strict
scrutiny. At the time the school forced the Walsh children to watch the video, they
5
were statutorily exempt. (R. 15.) The court believed that this fact shows that the
government did not have an interest in educating the children on the issue. (R. 15.)
The court stated that even if educating children about vaccinations serves a
compelling governmental interest, the manner in which the school educated the
children was not narrowly tailored. (R. 15.) The state could have tried to convince
the parents, first, that their views on vaccinations were incorrect. (R. 15.) This
would have been a less intrusive means. (R. 15.)
SUMMARY OF THE ARGUMENT
The religious exemption to Pacifica’s
violates the Establishment Clause.
mandatory
vaccination
law
The First Amendment prohibits governments from creating a law respecting
the establishment of religion. The Establishment Clause means no preference for
religion over nonreligion. A state cannot create a law that prefers religion over
nonreligion. A government may improperly foster religion when its religious
accommodation fails to adequately take into account the burden placed on
nonbeneficiaries and cannot apply neutrally among different faiths. Pacifica failed
to balance the burden placed on nonbeneficiaries. The religious exemption requires
a nonreligious objector to conform her life to the religious objector’s demands. The
exemption also improperly relies on an educator to determine how many can safely
qualify for the exemption.
This Court also requires laws to have a historical basis or have a secular
purpose, be neutral towards religion, and avoid excessive entanglement with
religion. Religious exemptions lack a constitutionally protected history. Historically,
6
both federal and state courts ruled against religious exemptions to mandatory
vaccination laws. Further, Pacifica maintained its religious exemption to the
exclusion of its personal belief exemption, because it valued religious beliefs over all
other beliefs. The exemption undermines the state’s interest in health and safety.
The legislature maintained the religious exemption for religion’s sake. The law’s
sincerity element requires a school official to evaluate the depth of a person’s belief.
It improperly requires the government to involve itself in religion and religious
teachings.
Finally, the exemption coerces nonreligious objectors to take up religion or lie
about having a religious belief in order to get the same rights as religious objectors.
The Equal Protection Clause prohibits the government from dividing citizens on the
basis of faith. The government intentionally denied nonreligious objectors the
exemption because they base their belief on something other than religion. Pacifica
creates second-class citizens. This Court should affirm the Twelfth Circuit’s decision
to enjoin Pacifica from applying § 124.1 against the Walshes.
Requiring children to watch a video the government knows directly
contradicts their parents’ personal beliefs violates the Due Process
Clause.
The government violates the Due Process Clause of the Fourteenth
Amendment when it forces children to watch videos it knows directly contradicts
their parents’
personal
beliefs.
The
Fourteenth Amendment
ensures
the
government does not “deprive any person of life, liberty, or property, without due
process of law.” This constitutional guarantee includes more than fair process. The
7
Fourteenth Amendment guarantees a heightened protection against government
interference with certain fundamental liberty interests. Perhaps one of the oldest of
these fundamental liberties this Court has recognized is a parent’s interest in the
care, custody, and control of her children.
A state cannot pressure children to “endorse an affirmative view” contrary to
the care, custody, and control of their parents’ views. Further, Parents have the
right to inform their children, when and how they please, on sensitive subjects.
Providing notice to parents that certain topics will be discussed with their children,
before being exposed at school, allows the parent the opportunity to exercise their
right to inform their child. The Walsh Children were deprived of a field trip with
their peers, isolated from those who had been vaccinated, and forced to watch a
video directly contradicting their parents’ views on vaccinations. The video
instructed the children to challenge their parents’ authority and spread the
government’s “truth.” The Walsh children were forced to watch The Truth About
Vaccinations without the any notice or consent of their parents, thus undermining
the parent’s liberty interest.
One of the liberties protected by the Due Process Clause of the Fourteenth
Amendment is the freedom of personal choice in matters of family life. There is a
private realm of the family that the state cannot enter. This privacy right protects
the relationships and structure of the family. The video slices deeply into the family
itself when it instructs the children to go home and challenge their parents’ beliefs.
The Walsh children after watching the video questioned their mother’s competence
8
and showed a lack of respect for her authority. This disrupts the structure of the
family that this Court has recognized as a liberty interest.
When reviewing government actions that infringe on fundamental liberties
the law demands careful consideration, and applies strict scrutiny. The government
must show a compelling government interest, and the means to achieve that
interest must be narrowly tailored. The School District lacks a compelling
government interest that justifies subjecting children to a video they know directly
contradicts the parents’ personal beliefs. There is a strong presumption that a
parent acts in the best interest of the child. The governments interest in preempting a possible future outbreak does not out weigh this strong presumption.
Even if this Court found a compelling governmental interest, the school
district’s actions sweep too broadly. The actions taken by the government must be
narrowly tailored to serve its purported goal in order to meet strict scrutiny. The
School District can protect and educate children of the supposed dangers of
vaccinations without stripping parents of their fundamental liberty and privacy
interests in the care, custody and control of their children. The school district had
the opportunity to communicate and provide education directly to the parents.
Further, the government’s interest in educating children about vaccines does not
directly achieve the government’s goal. The School district provided students a
personal-belief exemption to the mandatory vaccination laws. But then tried to
undercut this exemption by indoctrinating those children who were exempt. They
left the parents with the opportunity to apply for the exemption. This Court should
9
affirm the Twelfth Circuit’s decision to enjoin West Beverly Elementary from
showing Truth About Vaccinations.
STANDARD OF REVIEW
This Court reviews of a district court’s legal rulings de novo. McCreary Cnty,
Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 867 (2005). Here, there
are no factual disputes. (R. 4.) The U.S. District Court for the District of Pacifica
ruled as a matter of law that Pacifica Health & Safety Code § 124.1 (2015) does not
violate the Establishment Clause, and requiring the viewing of The Truth About
Vaccines violates the Fourteenth Amendment. (R. 4, 6.) Therefore, this Court must
conduct a de novo review for both issues presented.
10
ARGUMENT
I. The Establishment Clause prohibits the government from granting
an exemption to a mandatory vaccination law that favors religion over
nonreligion.
The Twelfth Circuit Court of Appeals held Pacifica’s religious exemption to
mandatory
vaccinations
violates
the
Establishment
Clause.
(R.
14.)
The
Establishment Clause restricts governments from “respecting an establishment of
religion.” U.S. Const. amend. I. The Fourteenth Amendment incorporates the First
Amendment to the states. Everson v. Board of Education, 330 U.S. 1, 7 (1947). The
Establishment Clause “mean[s] no official preference for religion over nonreligion.”
Cnty. of Allegheny v. ACLU, 492 U.S. 573, 605 (1989). It is inconsistent with the
Establishment Clause to draw a line between “religious beliefs on the one hand and
secular beliefs on the other.” Welsh v. United States, 398 U.S. 333, 356 (1970)
(Harlan, J. concurring). A state cannot create a law that prefers religion over
nonreligion.
A. Pacifica’s exemption favors religion over nonreligion.
The government’s favors religion for religion’s sake. Pacifica originally granted
exemptions to its vaccination mandate for medical necessity, religious objections,
and personal belief. Pac. Health & Safety Code §124 (2012). It did not exempt
religious beliefs to the exclusion of secular. The tides changed. Epidemics broke out.
California saw twenty-plus cases of measles. See Centers for Disease Control and
Prevention, Measles Cases and Outbreaks, http://www.cdc.gov/measles/casesoutbreaks.html.
11
Pacifica wanted to prevent epidemics like those that happened in California.
(R. 3.) The government believed it could cut down on outbreaks if it limited the
number of exemptions. It chose to eliminate the personal belief exemption. Pac.
Health & Safety Code § 124.1(2) (2015). Legislators asserted that parents who
claimed a personal belief put children in harm’s way. (R. 3.) The government
disregarded that same risk when it came to the religious exemption. The
government maintains a religious exemption. Pac. Health & Safety Code § 124.1(2)
(2015). Legislators claimed to value religion as much as they valued public health.
(R. 4.) The government gave protection to religion for no apparent reason other than
to favor religion. This favoritism violates the Establishment Clause. This Court
requires
that
religious
accommodations
weigh
the
burden
placed
on
nonbeneficiaries and apply neutrally among different faiths. Cutter v. Wilkinson,
544 U.S. 709, 720 (2005). Religious accommodations must have a secular purpose,
be neutral towards religion, and avoid excessive entanglement with religion, or
have a historical basis for granting the exemption. Lemon v. Kurtzman 403 U.S.
602, 612-13 (1971); Town of Greece v. Galloway, 134 S. Ct. 1811, 1818 (2014).
1. The religious exemption requires a nonreligious objector to conform
her life to the religious objector’s demands and improperly relies on
an educator to determine how many can safely qualify for the
exemption.
The
religious
accommodation
fails
to
weigh
the
burden
placed
on
nonbeneficiaries and apply neutrally among different faiths. In Cutter, this Court
stated that a permissible government accommodation of religious practices must: (1)
adequately account for the burden placed on nonbeneficiaries, and (2) apply
12
neutrally among different faiths. 544 U.S. at 720.
In Cutter, prisoners challenged the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”). Id. at 712. Congress designed RLUIPA to grant
religious practices heightened protection. Id. at 714. The prisoners’ challenge came
under the Establishment Clause. Id. The prison did not grant minority faiths
similar opportunities for group worship as it did mainstream religions. Id. at 713.
Minority prisoners claimed that the prison did not accommodate them solely
because they belonged to minority religions. Id. at 712. This Court reasoned that
the Establishment Clause permits a religious accommodation if the accommodation
adequately accounts for the burden placed on nonbeneficiaries, and applies
neutrally among different faiths. Id. at 720. The prison could grant accommodations
to the extent that it was safe to grant the accommodations. Id. at 723.
Accommodations that fail this test unlawfully foster religion. Id. at 714.
The burden placed on nonbeneficiaries cannot override the nonbeneficiaries’
significant interests. Id. at 722. In Estate of Thornton v. Caldor, this Court struck
down a Connecticut Sabbath law. 472 U.S. 703, 709 (1985). The law gave Sabbath
observers the right to take off from work on the day they considered their Sabbath.
Id. The law supported an individual’s religious practice. Id. It also imposed an
absolute duty on the employer to conform her business practices to the employee’s
demands. Id. The state backed the employee’s demands. Id. This Court held the law
unyieldingly weighted in the Sabbath observer’s favor above all other interests. Id.
at 710.
13
The government fails to balance the burden the exemption places on
nonbeneficiaries. Pacifica “weighed the costs of the exemptions and made a policy
choice that the state could tolerate a limited number of religious exemptions while
still maintaining the benefits of mass immunization.” (R. 5.) This balance is a ratio.
For every x number of religious exemptions, the state must have x number of
immunized children. The government misapplies Cutter. The government just
determines how many unvaccinated children the state can tolerate. This Court
requires that a religious accommodation to “take adequate account of the burdens a
requested accommodation may impose on nonbeneficiaries.” Cutter, 544 U.S. at 720.
Nonbeneficiaries include those who believe that vaccines are dangerous, but base
their objection on personal research instead of a religious teaching.
A nonreligious objector must conform her life and her children’s lives to
support the religious family’s demands. She must take her children to the doctor.
She must pay the doctor to give her children vaccines. The government compels her
to do this even though the mother believes the vaccinations will give her child
autism. (R. 4.) The government compels her even though her children have claimed
the exemption every year since entering school. (R. 4.) The government demands
nonreligious objectors to “adjust their affairs to the command of the state” whenever
a religious person invokes the exemption. Calder, 472 at 709. This demand
“contravenes a fundamental principle of the Religion Clauses,” id., which, as Judge
Learned Hand said, “gives no one the right to insist that in pursuit of their [sic] own
interests others must conform their conduct to his own religious necessities.” Otten
14
v. Baltimore & O.R., Co., 205 F.2d 58, 61 (2d Cir. 1953). The exemption fails to
balance the burden placed on nonbeneficiaries. It fosters religion. Id. at 714.
Pacifica improperly relies on educators to curb outbreaks through maintaining
safe ratios of vaccinated-to-unvaccinated children. In Cutter, this Court allowed
religious accommodations in prisons to the extent that prison officials could safely
offer the accommodations. 544 U.S. at 723. The neutral application element turned
on the deference given to prison officials’ “experience and expertise” to appropriately
carry out the law and maintain prison safety. Id. The government similarly requires
educators to determine who can safely receive exemption. Pac. Health & Safety
Code § 123(a) (2012). Pacifica Health and Safety Code §123 does not provide a
standard. There is no stated ratio. There is no statistic. A person who has spent his
career in the school system must now decide the best way for limiting the spread of
communicable diseases. Without a standard, this Court cannot expect that
educators can carry out Pacifica’s mandate in an “appropriately balanced way.”
Cutter, 544 U.S. at 722.
There is no process for granting or rejecting exemption requests. The statute
just provides for how a religious objector may get the exemption. Pac. Health &
Safety Code § 124.1. A parent just has to recite her sincere religious belief opposes
immunizations. The law does not provide that a board of education must follow-up
on the letter. The law does not provide that a board of education must determine
the sincerity of the belief. The law does not tell a board of education how to respond
to an exemption request. There is no process for applying the law. Its application is
15
subject to the educator’s discretion. If this Court is not an arbiter of scriptural
interpretation, then a superintendent should not be either. Thomas v. Review Bd. of
the Indiana Emp’t Sec. Div., 450 U.S. 707, 716 (1981). It is beyond the school
official’s expertise to determine an individual’s sincere religious belief. See Cutter,
544 U.S. at 722.
The statute ignores the nonreligious objectors’ significant interests. It also
incorrectly relies on educators to neutrally apply the exemptions. The exemption
goes beyond accommodation. It unlawfully fosters religion. It grants greater rights
to the religious objector. It grants a benefit. See Id. at 718. The government favors
religion over nonreligion. This Court should find that the law violates the
Establishment Clause and affirm the Twelfth Circuit’s injunction.
2. The religious exemption fails to pass the Lemon and Historical Basis
tests.
The government maintains a religious exemption and excludes a personal
belief exemption, because the state “valued religion above all other beliefs.” (R. 14.)
This choice is inconsistent with Lemon. Lemon requires a law to (1) have a secular
purpose, (2) be neutral towards religion, and (3) avoid excessive entanglement with
religion. 403 U.S. at 612-13.
In Lemon, two state statutes provided support to religious elementary and
secondary schools. Id. at 606-07. The statutes allowed the states to reimburse
teachers’ salaries, textbooks and instructional materials for secular subjects. Id. at
607. Tax payers challenged the statutes under the Establishment clause. Id. at 606.
This Court created three distinct lines to address the “main evils against which the
16
Establishment Clause” affords protection. Id. at 612. The Establishment Clause
requires the law (1) to have secular legislative purpose, (2) to neither advances nor
inhibit religion, (3) to not create “excessive government entanglement with
religion.” Id. at 612-13. This Court held that the state statutes violated the
Establishment Clause. Id. at 625.
Using the Lemon test is unnecessary when history supports the government’s
action. Town of Greece, 134 S. Ct. at 1818. In Town of Greece, citizens challenged
the town’s practice of praying before every meeting. Id. at 1817. The town allowed
volunteers to pray. Id. at 1816. The town allowed volunteers from any religious
persuasion to give the invocation. Volunteers included atheists. Id. The prayer
before the meeting was a practice the town began in 1999. The practice remained
until the original suit in 2010. Id. at 1816-17. This Court evaluated the case against
legislative prayer’s historical backdrop. Id. at 1825. The prayer helped legislators
focus on a higher purpose. Id. Legislators could not direct the public to pray without
violating the Establishment Clause Id. at 1826. This Court held the prayer was
consistent with this country’s traditions dating back to the Framers. Id.
Religious exemptions for mandatory vaccinations lack a constitutionally
protected history. Mandatory vaccinations historically survived constitutional
challenges. Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S.
174 (1922). The constitutionally supported mandatory vaccinations, as the 12th
Circuit Court of Appeals noted, lack religious carve-outs. (R. 13). This is in contrast
with the legislative prayer seen in Town of Greece. The prayer, though instituted in
17
1999, reflected the invocations the Framer’s used. 134 S. Ct. at 1826.
Both federal trial courts and two state supreme courts ruled against claims of
religious rights to not vaccinate children. McCarthy v. Boozman, 212 F. Supp. 2d
945, 948 (W.D. Ark 2002) (“The constitutional right to freely practice one’s religion
does not provide an exemption for parents seeking to avoid compulsory
immunization for their school-aged children.”); Sherr v. Northport—East Northport
Union Free Sch. Dist., 672 F. Supp. 81, 88 (E.D.N.Y. 1987) (“[I]t has been settled
law for many years that claims of religious freedom must give way in the face of the
compelling interest of society in fighting the spread of contagious diseases through
mandatory inoculation programs.”); Cude v. Arkansas, 377 S.W.2d 816, 819 (Ark.
1964) ("According to the great weight of authority, it is within the police power of
the State to require that school children be vaccinated against smallpox, and that
such requirement does not violate the constitutional rights of anyone, on religious
grounds or otherwise.”); Brown v. Stone, 378 So. 2d 218 (Miss. 1979) (“To the extent
that it may conflict with the religious beliefs of a parent, however sincerely
entertained, the interests of the school children must prevail.”).
The religious exemption at issue fails to meet Lemon’s three prongs. First, the
government chose to maintain its religious exemption to the exclusion of
nonreligion. Pacifica Senator, James Wright, lead sponsor of Pacifica Health and
Safety Code §124.1, stated:
Although we recognize the importance of vaccinations to our public
health, we equally value religious freedom in our state. No one in
government can tell a citizen that his or her understanding of God’s
commands is in error. Religious freedom is all the more important
18
when it comes to raising our children.
Pac. Legis. Rec. 14/6935. The Senator’s reason for abolishing the freedom of
personal choice is that religion is important. It is more important than all other
beliefs. (R. 14.) The Senator does not state that maintaining religious freedom
supports public health. The exemption works against public health.
The religious exemption is distinguishable from Lemon. In Lemon, this Court
found that the legislature’s purpose in reimbursing religious schools was “to
enhance the quality of the secular education in all schools.” 403 U.S. at 613.
Nothing in the state’s actions in Lemon undermined its purpose. Id. The purpose of
Pacifica’s mandatory vaccinations is public health. Vaccinations prevent the spread
of certain common diseases. Pac. Health & Safety Code §123. The religious
exemption undermines that purpose.
The exemption risks spreading disease. Unvaccinated children are more
susceptible to disease. Daniel R. Feikin, et al., Individual and Community Risks of
Measles and Pertussis Associated with Personal Exemptions to Immunization, 284
JAMA 3145, 3149 (2000). The greater number of exemptions threatens herd
immunity. Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy
God in Vain: Use and Abuse of Religious Exemptions from School Immunization
Requirements, 65 Hastings L.J. 1551, 1554 (2014). The government must
overcompensate for the risks that the exemption creates and demand that more
children receive vaccines. The government must overcompensate, because the
legislators favor religion. The government overcompensates by demanding
19
nonreligious objectors to vaccinate their kids. The religious exemption is for
religion’s sake. An exemption solely for religion’s sake is not a secular purpose.
Because the exemption lacks a secular purpose, it is inconsistent with the
Establishment Clause.
Second, the exemption defers to religion. The purpose of the religious
exemption was because a religious belief is more important than all other personal
beliefs. If a religious person learns from her faith that immunizations are sinful,
then “[n]o one in government can tell [her] that. . . her understanding of God’s
commands is in error.” Pac. Legisl. Rec. 14/6935. Her religious conclusion is
important. Her religious conclusion warrants deference. The law exempts her
religious conclusion. What about the nonreligious person? He concludes that a
certain mandatory vaccine will kill his child and that killing his child is wrong. His
conclusion is less important because he basis it off of science instead of the Bible.
The law excludes his conclusion because it is not religious. He is not exempt. The
exemption creates second-class citizens. Both people concluded that vaccines can be
harmful. One gets the government’s support because she is religious and the
government thinks religion is more important than all other beliefs. The
government’s support is a benefit. The nonreligious person is excluded from the
benefit. He is excluded because he is not religious.
Excluding the nonreligious belief on the basis of religion violates the
Establishment Clause’s essential purpose: “no official preference for religion over
nonreligion.” Cnty. of Allegheny, 492 U.S. at 605. The law excludes nonreligious
20
beliefs. A religious belief and a nonreligious belief are both personal beliefs. (R. 4.)
The government chose to exempt the religious belief over the nonreligious belief.
The government chose to exempt the religious belief, because it values a religious
personal belief. The choice shows preference. Because the law defers and prefers
religion, it violates the Establishment Clause. This Court should affirm the Twelfth
Circuit’s decision to enjoin Pacifica from applying § 124.1 against the Walshes.
Third, a sincerity assessment unlawfully entangles the government and
religion. In Lemon, this Court looked, in part, at the relationship that resulted from
the law to determine whether the government unlawfully entangled itself with
religion. 403 U.S. at 615. When a government gives money to a religious
organization, it exclusively results in surveillance and control. Id. at 621. A similar
effect will occur in Pacifica with the newly enacted sincerity requirement. The law
requires school officials to exempt individuals who claim a “sincere” religious belief.
Pac. Health & Safety Code § 124.1. A sincerity requirement demands that someone
determine if the individual’s belief is actually sincere. In Pacifica, a school official
must balance an individual’s lifestyle with her religion’s teachings. Pac. Health &
Safety Code § 123. It puts an individual on trial for heresy. Sherr, 672 F. Supp. at
94. Requiring school officials to determine an individual’s religious sincerity
essentially requires that official to involve herself in another’s religious practices. It
creates an intimate relationship between the official and the individual. Lemon, 403
U.S. at 622. The sincerity element fails Lemon’s third prong.
Religious exemptions to mandatory vaccination lack historical basis. Religious
21
exemption’s history fails to rise to the level of legislative prayer’s history. Because
religious exemption’s history fails to meet that historical standard, it lacks
constitutional protection. This Court should affirm the Twelfth Circuit’s decision to
enjoin Pacifica from applying § 124.1 against the Walshes.
B. The religious exemption compels citizens to become a part of the
state-recognized faith or lie about having that faith to receive those
benefits.
The religious exemption compels citizens to become a part of the staterecognized faith or lie about having that faith to receive those benefits. In
Allegheny, Justice Kennedy argued that the government cannot give benefits to
religion to the degree that it creates a state-established faith. 492 U.S. at 659. The
availability of benefits within the state-established faith has a proselytizing effect.
Id. at 660. Citizens then feel compelled to become a part of the state-established
faith to receive those benefits. Id. at 659-60.
A parent’s objection to mandatory vaccinations is valued only if it is in
response to a sincere religious belief. Pac. Health & Safety Code §124.1(2). If a
nonreligious person expresses the same objections, the state forces her to vaccinate
her kids. The religious choice is beneficial. This benefit compels a nonreligious
person to respond in one of two ways: get religious or lie. The latter has gained
traction.
Consider New Mexico. The state maintains a medical and religious exemption
to mandatory vaccinations. Dorit Rubinstein Reiss, supra at 1552. Fifty-four
percent of people who responded to a survey stated they sought exemption from
22
mandatory vaccines for philosophical or moral reasons. Id. at 1552. All of the fiftyfour percent responding received exemptions. Id. They received exemptions despite
the fact that the statute did not recognize their objections. Id. They lied. Id.
Professor Reiss’ article quotes several people giving their advice on how to
avoid the mandates. One says, “IF [sic] I were questioned on it…I would say that I
believe my religion commands me to make decisions in the best interests of my
child… My advice is to say as little as possible. Do not put more ‘out there’ to be
challenged than you need to.” Id. at 1585. Another asserts a religion that is not her
own: “I am not [Christian Scientist] but I used these verses to qualify for religious
exemption for my 3 sons. . . .” Id. at 1586.
This cannot be the standard. This Court cannot accept that a citizen has to
resort to lying in order to receive equal rights as others. “The Establishment Clause
prohibits the government from putting its citizens in this predicament.” (R. 13.)
Pacifica protects the religious from laws that may challenge the religion’s practices.
At the same time, the government subjects the nonreligious to a law that challenges
their personal belief. The government created a system that divides its citizens. The
division is based on faith. Nonreligious children receive less protection than
religious children.
It is true the states have a compelling interest in mandating vaccinations. This
Court has held in favor of mandatory vaccinations. Jacobson, 197 U.S. 11; Zucht,
260 U.S. 174. It is the “perfect right” of the state to promote the health and safety of
its citizens. Jacobson, 197 U.S. at 25. This right stems from a state’s police power.
23
Zucht, 260 U.S. 174 at 176. Mandatory vaccinations can survive strict scrutiny. See
Workman v. Mingo Cnty. Bd. of Educ., 419 Fed. Appx. 348, 353 (4th Cir. 2011)
(“[T]he state's wish to prevent the spread of communicable diseases clearly
constitutes a compelling interest.”). States may offer religious exemptions to
mandatory immunizations, but are not required. Dorit Rubinstein Reiss, supra at
1559. Pacifica has a compelling interest to demand that everyone receive vaccines.
It has the power to grant exemptions. It does not have the power to grant an
exemption to a nonreligious objector and then later deny her the exemption solely
because her objection is not religious.
The division violates the Equal Protection Clause. This Court incorporated
the Establishment Clause against the states. Everson, 330 U.S. at 7. It did so
through the Fourteenth Amendment. Id. The Fourteenth Amendment prohibits
states from denying individual’s equal protection of laws. U.S. Const. amend. XIV.
The government chose to deny nonreligious objectors an exemption. It does not
protect their belief. The government’s intentional denial violates the Equal
Protection Clause. This Court should affirm the Twelfth Circuit’s decision to enjoin
Pacifica from apply § 124.1 against the Walshes.
II. The government violates the Due Process Clause of the Fourteenth
Amendment when it forces children to watch videos it knows directly
contradicts their parents’ personal beliefs.
The Fourteenth Amendment ensures the government does not “deprive any
person of life, liberty, or property, without due process of law.” Troxel v. Granville,
530 U.S. 57, 65 (2000). This Court has long recognized this constitutional guarantee
24
includes more than “fair process.” Id. The Fourteenth Amendment guarantees a
heightened protection “against government interference with certain fundamental
rights and liberty interests.” Id.
A. The government’s action deprives parents of their fundamental
liberty interest in the care, custody, and control of their own
children.
The Due Process Clause protects those fundamental liberties that are “deeply
rooted in this nation’s history and tradition” and “implicit in the concept of ordered
liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Such “history and culture of
Western civilization reflect[s] a strong tradition of parental concern for the nurture
and upbringing of their children.” Wisconsin v. Yoder, 406 U.S. 205, 234 (1972).
This Court has consistently recognized a parent’s interest in the care, custody,
and control of her children is a fundamental liberty interest protected by the
constitution. Id. Almost a century ago, in Meyer v. Nebraska, this Court held the
“liberty protected by the Fourteenth Amendment Due Process Clause includes the
right of parents to establish a home, bring up children, and to control the education
of their own.” 262 U.S. 390, 399 (1923). This Court again held, in Pierce v. Society
Sisters, parents’ liberty interests include the right to “direct the upbringing and
education of children under their control.” 268 U.S. 510, 534-35 (1925). Subsequent
cases continued to recognize this fundamental right. See Wisconsin v. Yoder, 406
U.S. 205, 234 (1972). In the most recent case, Troxel v. Granville, this Court again
confirmed parents’ liberty interest to control the upbringing of their children. 530
25
U.S. at 65. Undoubtedly, the Fourteenth Amendment Due Process Clause protects a
parent’s fundamental right to make decisions concerning the care, custody, and
control of their children.
1. The School District unconstitutionally engaged in an attempt to
indoctrinate children into holding views contrary to those of their
parents’ views.
A state cannot pressure children to “endorse an affirmative view” contrary to
those of their parents’. This undercuts the parents’ efforts to inculcate their
children. See Parker v. Hurley, 514 F.3d 87, 105 (1st Cir. 2008). “The child is not
the mere creature of the state; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and prepare him for additional
obligations.” Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary,
286 U.S. 510, 535 (1925).
Here, the school first deprived the children of going on the field trip with their
classmates. (R. 3.) Second, the school isolated only those children it knew had an
exemption. (R. 3.) Third, the school inculcated its views on vaccines, despite
knowing the parent held an opposing view. (R. 3.)
In Fields v. Palmdale School District, parents gave their children permission to
take part in a school survey. 427 F.3d 1197, 1200 (9th Cir. 2005). The survey was a
part of a research study regarding psychological barriers to learning. Id. The
parents later found out from their children the survey included questions
addressing sexual activity. Id. at 1202. The Ninth Circuit held the parents’
fundamental right was not violated. Id. at 1203.
26
Similarly, in Parker v. Hurley, two sets of parents brought constitutional
challenges. 514 F.3d at 105. Their argument centered on “indoctrination.” Id. Both
objected to the school reading books about same sex couples to their elementary
school children. Id. The first book depicts different types of families and parents,
including parents of the same gender. Id. The second book, King and King, tells a
story of two princes who fall in love and get married. Id. The First Circuit Court of
Appeals held there was no viable claim of indoctrination. Id. at 106. This Court
examined each case separately in its reasoning. Id. at 105-06.
In the first case, the court reasoned the school never required the children to
read the books discussing same sex couples. Id. Further, the books did not “endorse”
same sex marriage. Id. They merely described how different types of families might
look. Id. In the second case, the court emphasized the children had a stronger claim,
but the facts still did not rise to the level of indoctrination. Id. The children were
required to sit through a reading of a book that did affirmatively endorse same sex
marriage. Id. The King and King intended to influence the children toward a
tolerance of same sex marriage. Id. However, on a continuum, the court reasoned
the intent to influence did not yet become an attempt to indoctrinate. Id. The school
did not ask the children to affirm same sex marriage. Id. Nor did the school
threaten to suspend the children. Id.
The case before this Court is distinguishable. First, West Beverly Elementary
School deprived the children from going to the petting zoo with their friends
because of their parents’ belief. (R. 3.) Instead, the school required the ten-year-olds
27
to watch,The Truth About Vaccinations. (R. 3.) In contrast, in Parker and Fields the
school did not deprive children from the privileged activities of their peers.
Second, the school isolated the children from their peers. (R. 3.) Those children
whose parents disagreed with the government concerning vaccinations were
uniquely segregated from those whose parents complied. (R. 3.) In contrast, in
Parker and Fields each child learned the same curriculum in a classroom setting.
The schools incorporated all viewpoints into the curriculum rather than targeting a
specific group.
Third, the Truth About Vaccines instructed children to challenge their parents.
(R. 3.) The video featured children learning the “truth” about vaccinations, then
going back home and challenging their parents with the opposing viewpoint. (R. 3.)
The video shows these parents either, “learning the error of their ways” after their
8-12 year old challenged them, or allowing the child, herself, to consent to
vaccinations. (R. 3.) The schools in Parker and Fields provided the children with an
alternative view expanding their understanding. However, here, the school
endorsed one view. It told the children their parents had an incorrect opinion.
Parker discussed a continuum with the intent to influence on one end and
attempt to indoctrinate on the other. Unlike in Parker, here, the children were
“asked” to take an affirmative viewpoint. The video ends instructing the children:
“Now that you know the truth about vaccines, it’s up to you to spread the truth to
your family and friends.” (R. 3.) The school did not directly threaten the children
with suspension from school. However, in effect, the school threatened the children
28
with isolation and deprivation of those opportunities which enhance and further
their education. Children are not ignorant to what happens around them. A child
knows when their peers are given an opportunity they are not. A ten-year-old would
understand that they were kept from doing something, and effectively punished, for
their parents’ beliefs.
2. Parents have the primary responsibility to introduce sensitive
topics, inculcate moral standards, religious beliefs, and elements of
good citizenship.
Parents have the primary responsibility Parents have a right to inform their
children when, and as they wish, on sensitive subjects and the primary
responsibility “to inculcate moral standards, religious beliefs, and elements of good
citizenship.” C. N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 185 (3d Cir. 2005);
Fields, 427 F.3d at 1206. “Introducing a child to sensitive topics before a parent
might have done so herself can complicate and even undermine parental authority.”
Ridgewood Bd. of Educ., 430 F.3d at 185.
In Parker, the school notified parents of the books that would be read in the
school and the school’s overall intent to promote a tolerant view of same-sex
marriage. 514 F.3d at 106. The court’s holding did not turn on whether the parents
had notice, but whether the overall effect was indoctrination. Id. However, it was of
particular importance the school notified the parents. Id. at 105. The notice retained
the parent’s ability to discuss the material and subject matter with their children
prior to being exposed to it at school, or at minimum inquire into the material. Id.
In Fields, the school sent a letter to the parents prior to the survey being
29
given. 427 F.3d at 1197. While the letter did not explicitly state some of the
questions had sexual content, it did specify the questions “may make the child feel
uncomfortable.” Id. If the parent had any further questions, the school provided the
correct contact information. Id. The Ninth Circuit held parents did not have a
fundamental right to be the exclusive provider of information regarding sexual
matters to their children. Id. at 1203. Teachers cannot cater a curriculum for each
individual student. Id. at 1205. Similarly, a parent’s liberty interest does not
encompass the right to restrict the flow of information in public schools. Id. at 1205.
However, the parents, as in Parker, had the ability to discuss and review the
material and subject matter presented to inculcate their views rather than the
governments. See id.
The court in Parker considered the parents’ ability to speak to their children
concerning the sexuality. When the school does not give notice, the parent does not
have the opportunity to explain to their children their beliefs before the school
damages the relationship between the parent and child. Here, the school did not
give notice to the Walsh family before the school required the children to watch The
Truth About Vaccinations. (R. 3.) Mrs. Walsh, thus, did not have the opportunity to
discuss with her children beforehand why their family believes differently than
their classmates. Mrs. Walsh discovered her children saw the video only after they
began questioning her competence. (R. 4.) Mrs. Walsh tried to explain to her
children her reason for not vaccinating them. (R. 4.) Her children, however, showed
a lack of respect for her authority and ability as a parent to make decisions for her
30
family. (R. 4.) Mrs. Walsh’s ten-year-old children telling her that they desired to be
vaccinated against her wishes. (R. 4.)
Introducing the Walsh children to the sensitive and controversial topic before
providing Mrs. Walsh an opportunity to teach them herself, complicated and
undermined her parental authority. See Ridgewood Bd. of Educ., 430 F.3d at 185.
Teachers have a strong influence on children. This influence has an even greater
impact on a child young in age. See Parker, 514 F.3d at 101. A young child’s
impressionability provides a strong interest in the parent to, at minimum, be put on
notice of what her child is learning and when her child is going to be taught a
sensitive subject. “[T]he strength of a parent’s interest in controlling a child’s
associates is as obvious as the influence of personal associations to note
development of the child’s social and moral character. Whether for good or for ill,
adults not only influence but may indoctrinate children.” Troxel, 530 U.S. at 78
(Souter, J., concurring).
The Welshes do not wish to restrict the flow of information in public schools
requesting the injunction. Nor are they asking for an individualized curriculum.
They ask for notice so that they have the opportunity to discuss the material and
subject matter presented to inculcate their children’s views as emphasized in
Parker and Fields. The schools in Parker and Fields expanded knowledge of a
particular topic. Albeit, a sensitive topic, it was still merely the presentation of
information. Here, the video is an attempt at indoctrination. The government
standardizes its children when it does not give notice or an ability of parents to opt
31
out of instruction. “The fundamental theory of liberty upon which all governments
in this Union repose excludes any general power of the state to standardize its
children. . . . [T]he child is not the mere creature of the state; those who nurture
him and direct his destiny have the right, coupled with the high duty, to recognize
and prepare him for additional obligations.” Pierce, 268 U.S. at 535.
B. The government’s actions deprive parents of their constitutional
right to privacy in making intimate, familial decisions.
“‘This Court has long recognized that freedom of personal choice in matters of .
. . family life is one of the liberties protected by the Due Process Clause of the
Fourteenth Amendment.’” Moore v. East Cleveland, 431 U.S. 494, 498 (1977)
(quoting Cleveland Bd. of Educ. v. Lafleur, 414 U.S. 632, 639-640 (1974)).
It is cardinal with us that the custody, care, and future of the child
reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply nor
hinder. And it is in recognition of this that these decisions have
respected the private realm of family life which the state cannot enter.
Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Parents have a constitutionally
protected privacy interest in having “‘independence when making certain kinds of
important decisions.’” Fields, 427 F.3d at 1207 (quoting Whalen v. Roe, 429 U.S.
589, 599-600 (1977)).
In Moore, the city of East Cleveland, Ohio, enacted a housing ordinance that
limited those living in a single home to immediate family members. 431 U.S. at 49596. A grandmother, her son, and her two grandsons lived together in a single home.
Id.
Because the two grandsons were first cousins, rather than brothers, the
ordinance required the grandmother to remove one of her grandsons from her home.
32
Id. This Court held the housing ordinance was unconstitutional. Id. at 506. The city
chose to regulate its housing by “slicing deeply into the family itself.” Id. at 498. The
intrusion was a direct consequence of the government's actions, rather than merely
incidental. Id. “On its face, [the city] selected categories of relatives who may live
together and declare[d] that others may not.” Id. at 499.
Similarly, West Beverly Elementary’s actions, “slice deeply into the family
itself.” See id. at 498. The government’s actions, on their face, categorically selected
students with an exemption from vaccinations and declared their parents’ beliefs
incorrect. The school uniquely segregated those fourth and fifth grade students. (R.
3.) It prohibited the students from attending a field trip, then forced the exempted
students to watch a video that directly contradicted and challenged their family’s
values. (R. 3.) The school intentionally interfered with the parents’ beliefs and
independence to make decisions for their children. It was not merely incidental.
In contrast, in Fields, a school questioned elementary school children about
sexual topics, among other things, in a survey. Fields, 427 F.3d at 1197. The Ninth
Circuit held the survey did not interfere with the right of the parent to make
intimate decisions. Id. at 1208. The court reasoned that “[m]aking intimate
decisions and controlling the state’s dissemination of information regarding
intimate matters are two entirely different subjects.” Id. No constitutional provision
prohibits the dissemination of information to children. Id.
Here, an injunction will not reach beyond the school doors, allowing the
parents to control the school curriculum and dissemination of information. The
33
injunction, instead, will stop the government from reaching beyond the doors of a
family’s home. This privacy right protects the family structure. See id. The Welshes’
ten-year-old children questioned their parents’ authority. (R. 4.) The school did not
just provide conflicting information. The school provided a video that asked young
children to challenge their parents’ authority and affirmatively adopt a
contradictory view. (R. 3.) Thus, stripping the Fourteenth Amendment privacy right
protection of the family structure.
A parent’s decision to send their child to public school, either by choice or out of
necessity, is not a relinquishment to the government to step into the family. The
institution of the family is deeply rooted in this Nation’s history and legal tradition.
“It is through the family that we inculcate and pass down many of our most
cherished values, moral and cultural.” Moore, 431 U.S. at 503-04. Thus, it is the
sanctity of this institution that the Fourteenth Amendment privacy right serves to
protect. Id. at 503.
C. The government’s interference with a parent’s fundamental liberty
interest in the care, custody, and control of her children fails strict
scrutiny.
While the school masks the video as a government interest in health, it is
nothing more than an attempt to indoctrinate the children to a specific view.
Forcing children to watch a video which instructs them to challenge their parents’
beliefs, undermines a parent’s rights and fails strict scrutiny. When reviewing
government actions that infringe on fundamental liberties, the law demands careful
consideration and applies strict scrutiny. See Troxel, 530 U.S. at 80 (Thomas, J.,
34
concurring); Moore, 431 U.S. at 499. A compelling government interest is
constitutionally required to justify a government interference of a protected liberty
interest. Id. at 499. Even if the government can provide this interest, the action
taken must be narrowly tailored to meet the purported interest. Id. Forcing children
to watch a video that directly conflicts and undermines their parents’ beliefs, fails
strict scrutiny.
1. This Court presumes that fit parents act in their children’s best
interests.
The presumption that fit parents act in their children’s best interests is part of
the decisional framework in judicial review. Troxel, 530 U.S. at 68. It provides
protection of a parent’s constitutional rights. See id. “‘The law’s concept of the
family rests on a presumption that parents possess what a child lacks in maturity,
experience, and capacity for judgment required for making life’s difficult decisions.’”
Troxel, 530 U.S. at 68 (quoting Parham, 442 U.S. at 602). “‘[N]atural bonds of
affection lead parents to act in the best interests of their children.’” Id. (quoting
Parham, 442 U.S. at 602). When a parent adequately cares for his or her children,
“there will normally be no reason for the State to inject itself into the private realm
of the family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68. Thus, when
a parent’s decision is subject to judicial review, the Court must accord special
weight to the parent’s own determination of what is in the their children’s best
interest. Id. at 70.
In Troxel, grandparents were fighting for visitation rights of their blood
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related grandchildren. 530 U.S. at 69. The lower court granted visitation rights to
the grandparents in spite of the mother’s objections. Id. This Court criticized the
lower court’s reasoning. Id. This Court reasoned because it is normally in the child’s
best interest to develop the intergenerational relationship with their grandparents,
the parents must show the grandparents’ visitation presented some type of harm.
Id. This Court recognized the lower court directly contravened the traditional
presumption that a fit parent will act in the best interest of her own child. Id. This
Court reversed the lower court’s decision giving great weight to the parents’
determination of what was in the child’s best interest. Id.
Whether immunization in a specific case is in a particular child’s best interest
is “for the parent to make in the first instance.” Id. at 70. As in Troxel, the
presumption a parent acts in the best interest of her child protects those parents
who chose an exemption. If this Court does not enjoin the school district from
showing The Truth About Vaccinations, it would be ignoring this traditional
presumption. Here, because the government disagrees with the parents’ view of
immunizations, the parents are stripped of any opportunity to have their children
opt out of the video. As in Troxel, this places the burden on the parent to prove the
video would present some type of harm. This Court’s presumption would fail to
provide any protection for the parents’ fundamental right. It assumes the
government knows what is in the child’s best interest. It assumes the government
has the right to establish its citizens’ homes and bring up the children of its State,
rather than the parents.
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This Court must accord great weight to the parents’ determination that
vaccines are not in their children’s best interest. Troxel, 530 U.S. at 70. “To say the
least (and as the Court implied in Pierce), parental choice in such matters is not
merely a default rule in the absence of either governmental choice or the
government’s designation of an official with the power to choose for whatever reason
and in whatever circumstances.” Id. at 79 (Souter, J., concurring).
2. The government lacks a compelling government interest to justify an
intrusion on parental rights in their children’s education.
The School District lacks a compelling government interest that justifies
subjecting children to a video they know directly contradicts the parents’ personal
beliefs. The presumption a parent acts in the best interest of their child requires the
Court to accord great significance to the parent’s own determination on judicial
review. Troxel, 530 U.S. at 69. To determine if a compelling government interest
outweighs this strong presumption and liberty interest, the Court must carefully
examine the importance of the interest the government claims. Moore, 431 U.S. at
499. The state’s power is not a power to make “senseless and arbitrary actions.” See
id. 507. The Fourteenth Amendment Due Process Clause does not permit a state to
infringe on a parent’s fundamental right to make childrearing decisions simply
because the government believes a “better decision could be made.” See Troxel, 530
U.S. at 72-73.
The School District argues that “educating” children about vaccines during a
“public health” scare is a compelling government interest. (R. 13.) The right to make
parenting decisions is not absolute and can be interfered with by the state if
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necessary to protect a child. The school supports its actions through purported
concerns of a “public health” scare. (R. 3.) However, the school was actually
responding to an outbreak that occurred in a different state. (R. 3.) Showing the
video was a proactive measure. (R. 3.)
In Prince, this Court upheld child labor laws as applied to a child who was
distributing religious materials on the street. 321 U.S. at 160. This Court reasoned
street preaching presented dangers to the children and as preaching was not the
primary use of the highway. Id at 169. Additionally, the right to engage in
“propagandizing the community” creates situations and confrontations that are
“wholly inappropriate for children” to cope. Id. at 170.
Similarly, here, the school is placing students in the middle of a political
controversy. The issues surrounding mandatory immunizations are hotly contested.
Like the parent in Prince, the school, here, provided students with “propagandizing
material.” The material instructed them at the end to “spread the news.” (R. 3.) It is
important for students to trust their teachers. It is equally important, if not of
greater importance, the structure of the family is protected and the child trusts
their parents. Thus, it is wholly inappropriate for a child to cope with the conflicting
instruction and strife between the two parties.
Additionally, the children being statutorily exempt from the vaccination
absolved the school’s responsibility. (R. 3.) Any interest to protect the students from
harmful illness by way of vaccination is moot at the moment the school allows
exemptions to the children. The School provided an exemption but still allowed
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those students to attend school. (R. 3.) This exposed the general student body to
what the government now purports to protect against: unvaccinated children and a
possible outbreak.
The school district seeks to justify its means of preventing a possible outbreak
of illness, protecting students from their parents belief in “false science,” and
protecting immunized students from harm’s way. (R. 2.) These are legitimate
government interests; however, they are not so compelling that they can overcome
the strong presumption the parent is acting in the best interest of the child.
3. The government’s actions sweep too broadly in attempting to further
its purported interest.
Even if this Court found a compelling governmental interest, the school
district’s actions sweep too broadly. The actions taken by the government must be
narrowly tailored to serve its purported goal in order to meet strict scrutiny. Moore,
431 U.S. at 499. The School District can protect and educate children of the
supposed dangers of vaccinations without stripping parents of their fundamental
liberty and privacy interests in the care, custody and control of their children.
First, the school district had the opportunity to communicate and provide
education directly to the parents. This not only would have been a more narrowly
tailored means, but a more effective means according to this Court’s precedent. The
law presumes parents possess “what a child lacks in maturity, experience, and
capacity for judgment required for making life’s difficult decisions.’” Troxel, 530
U.S. at 68 (quoting Parham, 442 U.S. at 602). As such, this Court has recognized
parents have the “high duty” to nurture and direct their children's destiny. Pierce,
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268 U.S. at 535. Yet the government targeted these children, ages 8-12, who lack
“maturity, experience, and capacity for judgment,” in order to achieve its alleged
compelling interest.
Further, the government’s interest in educating children about vaccines does
not directly achieve the government’s goal. The School district provided students an
option of a personal-belief exemption to the mandatory vaccination laws. Pac. Heath
& Safety Code § 124 (2012) (repealed). They left the parents with the opportunity to
apply for the exemption. Id. The school district then granted that exemption. (R. 3.)
Even so, the school attempts to nullify that exemption by indoctrinating the
children to “choose” vaccinations for themselves.
When the West Beverly Elementary School required the Walsh children to
watch the immunization video, they, along with others, had already been exempted
from vaccinations. Yet, they were still allowed to attend school and interact with the
other children. (R. 3.) This directly contradicts the governments motive and alleged
interest of protecting the other students from those children who had not been
vaccinated. (R. 3.)
Finally, if the school district is not enjoined from showing the video for the
coming year, it would be providing a school principal with unlimited power to make
decisions for the family. See Troxel, 530 U.S. at 70. Here, a single principal is
making the determination the video will be shown without the ability to opt out
because she has concluded it was an “effective educational tool.” (R. 3.) Neither the
school board nor the legislature is making this decision, who would be under
40
advisement of medical professionals. This Court has held it is not within the
province of the state to make significant decisions concerning the care of children
merely because it believes it could make a “better decision.” Troxel, 530 U.S. at 73.
Thus, it is not within the province of a single state actor—with no medical
knowledge or background—to make significant decisions concerning children’s
medical care.
CONCLUSION
“It is cardinal with us that the custody, care and nurture of the child reside
first in the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.” Prince, 321 U.S. at 166. Thus,
this Court should AFFIRM the judgment of the United States Court of Appeals for
the Twelfth Circuit.
Respectfully Submitted,
/s/ Counsel for Respondents
Counsel for Respondents
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APPENDIX
Constitutional Provision Involved
U.S. Const. amend. I.
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S. Const. amend. XIV.
Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
State Statute Involved
Pac. Health & Safety Code § 123 (2012). Immunization Requirement.
(a) As used in this chapter, “governing authority” means the governing board of
each school district or the authority of each other private or public institution
responsible for the operation and control of the institution or the principal or
administrator of each school or institution.
(b) The governing authority shall not unconditionally admit any person as a
pupil of any private or public elementary or secondary school, child care
center, day nursery, nursery school, family day care home, or development
center, unless, prior to his or her first admission to that institution, he or she
has been fully immunized or qualifies for an exemption pursuant to §124.1 of
this Code. The following are the diseases for which immunizations shall be
documented:
(1) Diphtheria.
(2) Haemophilus influenzae type b.
(3) Measles.
(4) Mumps.
(5) Pertussis (whooping cough).
(6) Poliomyelitis.
(7) Rubella.
(8) Tetanus.
(9) Hepatitis B.
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(10) Varicella (chickenpox).
(11) Any other disease deemed appropriate by the department, taking into
consideration the recommendations of the Advisory Committee on
Immunization Practices of the United States Department of Health and
Human Services, the American Academy of Pediatrics, and the American
Academy of Family Physicians.
(c) Notwithstanding subdivision (b), full immunization against hepatitis B shall
not be a condition by which the governing authority shall admit or advance
any pupil to the 7th grade level of any private or public elementary or
secondary school.
(d) The governing authority shall not unconditionally admit or advance any
pupil to the 7th grade level of any private or public elementary or secondary
school unless the pupil has been fully immunized against pertussis, including
all pertussis boosters appropriate for the pupil’s age.
(e) The department may specify the immunizing agents that may be utilized and
the manner in which immunizations are administered.
(f) This section shall become operative on July 1, 2012.
Pac. Health & Safety Code § 124.1 (2015). Immunization Exemptions.
It is the responsibility of the parent or legal guardian to have his or her child
immunized unless the child is exempted pursuant to this section. A student shall be
exempted from receiving the required immunizations in the following manner:
(1) By submitting to the student’s school certification from a licensed physician
or advanced practice nurse that the physical condition of the student is such
that one or more specified immunizations would endanger his or her life or
health or is medically contraindicated due to other medical conditions; or
(2) By submitting to the student’s school a statement of exemption signed by one
parent or guardian or the emancipated student or student eighteen years of
age or older that the parent, guardian, or student is an adherent to a sincere
religious belief whose teachings are opposed to immunizations. As used in
this paragraph, a religious belief is one that arises from an individual’s belief
in duties superior to those arising from human relations, but does not include
essentially political, sociological, or philosophical views or a merely personal
moral code.
(3) This section shall become operative on August 1, 2015.
REPEALED SECTION; REPLACED BY § 124.1.
Pac. Health & Safety Code § 124 (2012). Immunization Exemptions.
It is the responsibility of the parent or legal guardian to have his or her child
immunized unless the child is exempted pursuant to this section. A student shall be
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exempted from receiving the required immunizations in the following manner:
(1) By submitting to the student’s school certification from a licensed physician
or advanced practice nurse that the physical condition of the student is such
that one or more specified immunizations would endanger his or her life or
health or is medically contraindicated due to other medical conditions; or
(2) By submitting to the student’s school a statement of exemption signed by one
parent or guardian or the emancipated student or student eighteen years of
age or older that the parent, guardian, or student is an adherent to a
religious belief whose teachings are opposed to immunizations or that the
parent or guardian or the emancipated student or student eighteen years of
age or older has a personal belief that is opposed to immunizations.
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CERTIFICATE OF SERVICE
We certify that a copy of Respondents’ brief was served upon the Petitioner, Gerald
Black, et al, through counsel of record by certified U.S. mail return requested, on
this, the 26th of September 2015.
/s/ Counsel for Respondents
Counsel for Respondents
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