By Alan G. Phillips, Attorney at Law

December 2006

There’s a lot of information on the Internet about vaccine religious exemptions. Unfortunately, much of it is misleading or incorrect. The law on religious exemptions is inherently complex. The truth is, for most U.S. citizens, the law on vaccine religious exemptions is not clearly defined. Furthermore, laws continually change and evolve, so staying on top of your rights requires ongoing vigilance.

A complete explanation of vaccine religious exemption law is well beyond the scope of a single article (which is why I’m writing a book on the subject—be on the look-out for this in the near future!), but an introduction to some of the complicating factors may not be.

First, in the U.S., vaccine requirements and exemptions (also known as exceptions or waivers) are addressed at the state law level, as the federal government lacks authority to enact such laws for state residents (federal laws do address vaccine requirements and exemptions for immigrants and the military; they also provide a means of avoiding vaccines in the workplace for religious reasons). Vaccines are legally required in all U.S. states and territories, but exemptions are also available in each state and territory that at least some residents may exercise.

One’s right to refuse immunizations in the exercise of one’s religious beliefs is a right afforded by both state and federal law in all but two states (Mississippi and West Virginia), primarily by way of state code and the U.S. Constitution’s First and Fourteenth Amendments. So, right off the bat, vaccine religious exemptions necessarily involve a potentially complex mixture of state and federal law. Furthermore, on the state level, there are both statutes and regulations that must be reviewed to begin the assessment of one’s rights and options, and state constitutions may play a role as well.

Rights are seldom if ever absolute. One person’s right to exercise their religion is limited by opposing rights—in the case of vaccine religious exemptions, the state’s right to require immunizations for the (presumed) benefit of society. Furthermore, determining your rights is not simply a matter of reading a state statute or a Constitutional section or Amendment. While those may be necessary starting places, they contain only broad generalizations that tell you little if anything about how that law applies to the specific set of facts and circumstances in your life. Make no mistake—the application of those laws can vary, sometimes radically, with the widely varying circumstances of various individuals and families.

How do we determine, then, how the law applies to your unique situation? We must look to legal precedent, or “case law.” Legislatures may enact statutes, but it is the courts that interpret them—on a case-by-case basis, one individual dispute at a time. The U.S. Constitution is interpreted in the same way—by the courts, one legal dispute at a time. When a case in a lower court is appealed to a higher court, the higher court (or federal district courts and some state trial courts) may issue a written “opinion” of their ruling in the case that then serves as guiding legal precedent for the lower courts in their jurisdiction in similar future disputes. So, for starters, then, to determine what the law is for your specific situation, you must first determine whether or not there is any legal precedent that applies.

Needless to say, the totality of court opinions constituting the body of precedent in any given area of law at any given time can never precisely address the hypothetically infinite variety of possible future situations and circumstances that may arise in that same area of law. So, when a new situation arises that doesn’t clearly match any existing legal precedent, it may be difficult to say with any certainty what the law is for that specific situation—that is, where no legal precedent applies to a present situation, the law may be unsettled or undetermined for that particular situation. When precedent bears some resemblance to a current situation but is distinguishable from it, there may be opposing arguments about how or if the existing precedent applies to the present situation, with corresponding uncertainty as to what the law is or should be for that present situation.

Unfortunately, the complexity doesn’t end there. Even if there is legal precedent that clearly applies to your specific situation, you still have to look to whether or not that precedent is “binding” or merely “persuasive.” This depends on whether or not the precedent was issued by a court within your jurisdiction. If not, it is “persuasive precedent” only, and the courts in your jurisdiction are not required to follow it. Persuasive precedent may support a legal argument for what your rights should be—e.g., how a court may or should rule if the matter ends up in court—but it won’t determine in any absolute sense what your rights presently are. The bottom line is, a court can rule contrary to persuasive precedent—against you—if it believes that doing so is the more just outcome in your particular case. And as you might well imagine, arguments favoring immunization often have the legal advantage.

Most of the federal precedent pertaining to vaccine religious exemptions comes from cases that arose in federal courts in New York State. Those precedent-setting cases were in federal district courts and the Second Circuit Court of Appeals (which jurisdiction encompasses the states of New York, Vermont and Connecticut). If you live outside of New York (with regard to those court opinions from New York District Courts), or outside of NY, VT and CT (with regard to the opinion from the Second Circuit Court of Appeals), this precedent is not binding on the courts in your jurisdiction and serves only as a legal argument in support of a desired outcome—it does not determine what the law in your jurisdiction is now. Sometimes, that legal argument is enough to get the exemption without having to take the case to court (though as a practical matter, the argument may need to be made by an attorney); other times, it isn’t.

One frequent issue concerns states with laws that require one to be a member of an organized religion with tenets in opposition to immunizations in order to qualify for a religious exemption. Such laws have been ruled unconstitutional in some state and federal courts in recent years. But that doesn’t mean that similar laws in other states that have not been challenged in court are unconstitutional—it only means that if the laws in those other states were challenged in court, there is a “persuasive” legal argument that the court should rule similarly (but no guarantee that it will). So, if you live in a state that has these requirements, you are legally bound by them unless and until the laws are changed, despite the legal argument that if challenged, those laws may be ruled unconstitutional. This doesn’t mean there’s no possibility of exercising a religious exemption in those states if you don’t belong to the right kind of church, but it may mean that if you attempt it and are successful, it would probably be because local officials chose not to spend the time and money defending a case they felt they were likely to lose, and not because there was any uncertainty about the enforceability of the law as it currently stands. Moreover, it is not certain that if such laws were challenged in court that they would be ruled unconstitutional, as there is some opposing legal precedent. In Kentucky, it is constitutional to require membership is an organized religion, based on a federal district court ruling; in Mississippi, vaccine religious exemptions were ruled to be unconstitutional altogether by that state’s supreme court. It may be possible for the laws in those states to be changed, but unless and until they are, the law in those states is enforceable as it now stands.

Another common complication to exercising a vaccine religious exemption concerns practical reality. Even if you are clear about your rights under state and federal law and know the strengths and weaknesses of your position, you still have to deal with local authorities that may or may not know your legal rights, and who may or may not cooperate with you even if they do. Sometimes, exercising an exemption is very straightforward and proceeds without incident, with or without an attorney. Other times, local officials resist residents’ efforts to exercise a valid legal exemption. Reports of rude, uncooperative, and even coercive or confrontational officials are not uncommon. Most of the time, these folks are probably genuinely concerned about your health and safety, and that of your children and community, but sometimes, local officials overstep their boundaries in their desire to “protect” those concerned (and perhaps their desire to be free from accountability for your failure to vaccinate). However, even those people who successfully exercise a religious exemption on their own may inadvertently leave themselves open to challenge, because of what they “don’t know that they don’t know” about the law on exemptions and the manner in which they exercise their exemption in the absence of a complete understanding of their rights and responsibilities. For these reasons, and because of the many inherent legal complexities associated with vaccine religious exemptions generally, many people wisely choose to consult a knowledgeable attorney before declaring and exercising a vaccine religious exemption. For most, it’s a small investment compared to the resulting peace of mind.

Alan G. Phillips, Attorney at Law

Alan G. Phillips, Esq., is one of the few attorneys in the U.S. with a focus on vaccine legal exemptions. He can be contacted at: lawpapa@nc.rr.com, 919-960-5172, P.O. Box 3473, Chapel Hill, NC 27515-3473.