On Feb. 5, attorney Michael Sussman appealed the judgment of the New York State trial court in F.F. v. New York which had dismissed plaintiffs’ challenge to the state’s June 13, 2019 repeal of the religious exemption to vaccination. The repeal directly affected over 26,000 children in New York public and private schools, forcing their families to vaccinate children against their religious convictions, homeschool or move out of state.

Children’s Health Defense and its attorneys, Robert F. Kennedy, Jr. and Mary Holland, participated in the original lawsuit and this brief.

Sussman argued before five justices of the Third Judicial Department of New York State’s Appellate Division, the state’s intermediate appeals court that the state’s repeal was unconstitutional, the trial court was wrong to dismiss the claim and that the Appellate Division would err if it affirmed the lower court.

Sussman also argued that the state legislature, in enacting the repeal, evinced open hostility and animus against those with religious convictions, thus violating the First Amendment’s command of religious neutrality.

The court was required to apply “strict scrutiny” to these questions, Sussman argued, holding the state to a high standard to show its compelling interest and to infringe on First Amendment religious rights as little as possible. The state could not demonstrate its compelling public health interest, Sussman argued, because it failed to conduct a single hearing, acted months after the outbreak, failed to utilize other public health measures and failed to implement its vaccination policy towards all people in schools, including adults.

There was, however, ample evidence that state legislators had shown open hostility. “Comments of the leaders of the New York legislature spoke of profound religious intolerance, which motivated the repeal of the religious exemptions,” Sussman said.

For example, Senate Majority Leader Andrea Stewart Cousins was quoted in a newspaper referring to the repeal, saying, “We have chosen science over rhetoric.”

Assembly sponsor Jeffrey Dinowitz said in a television interview, “There is nothing, nothing in the Jewish religion, in the Christian religion, in the Muslim religion … that suggests that you can’t get vaccinated. It is just utter garbage.”

State Senator Brad Hoylman, prime Senate sponsor, also deprecated those who hold religious exemptions, stating, “Let’s face it. Non-medical exemptions are essentially religious loopholes, where people often pay for a consultant to try to worm their way out of public health requirements that the rest of us are following.”

In an editorial, State Senator James Skoufis referred to the “so-called ‘religious exemption,”‘ writing that “the time is now to end the state’s nonsensical and dangerous religious exemption.” He concluded that “We’ve already wasted too much time debating this issue.” But Skoufis failed to mention that neither the Senate nor the Assembly convened even a single hearing on the topic.

Sussman relied on the Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission as authority that even an otherwise permissible law or regulation, if motivated by religious intolerance, is unconstitutional. Quoting that decision, citing an earlier precedent, he read:

“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.’”

By contrast, the state attorney asked the court to affirm the lower court’s decision to dismiss, arguing that the legislature’s acts were not hostile but rather focused solely on preventing the spread of vaccine-preventable illnesses. He suggested, as the state did in its brief that the statements Sussman highlighted were isolated remarks, and that overall the legislators had great respect for religion.

According to the state attorney, the legislature was merely removing a religious accommodation that the constitution did not require. He argued that precedents uphold school vaccination laws, and that the legislature was “just doing its job.”

Regardless of the outcome in the Appellate Division, the case will go next to the New York Court of Appeals, the highest state court, because an appeal by either side is certain.

The Defender will report on the Appellate Division’s decision as soon as it is available.

To watch the oral arguments, follow these steps:

1. Go to Appellate Division, Third Department
2. Scroll down and click “Oral Arguments Archives” in the white box at the right.
3. Enter case number “530783.”

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